



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Robinson, 2016 ONCA 402

DATE: 20160530

DOCKET: C59599

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Troy Robinson

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

J. Sandy Tse, for the respondent

Heard:  February 17, 2016

On appeal from the convictions entered by Justice Brian Trafford
    of the Superior Court of Justice on December 10, 2013.

Doherty J.A.:

[1]

The appellant, Troy Robinson, and his girlfriend, Nicole Browne, were
    jointly charged with several offences involving the possession of drugs and
    guns.  One set of charges arose out of the seizure of guns and drugs found in a
    storage locker rented by Ms. Browne.  The second set of charges related to
    drugs and guns found during a search of an apartment rented by Ms. Browne.  It
    was the Crowns position that the appellant and Ms. Browne were jointly in
    possession of the guns and drugs found at both locations.

[2]

The trial judge acquitted both the appellant and Ms. Browne on the
    charges involving the guns and drugs seized from the storage locker.  He held
    that the Crown had failed to prove beyond a reasonable doubt that the guns and
    drugs found at the storage facility actually came from the unit rented by Ms.
    Browne as opposed to one of the other units being renovated at the same time. 
    The acquittals are not challenged on appeal.

[3]

The trial judge convicted Ms. Browne on the charges relating to the
    drugs found in her apartment, but acquitted her on the gun charges.  She has
    not appealed and the Crown has not appealed her acquittals.

[4]

The trial judge convicted the appellant on the charges involving the
    guns and drugs seized from the apartment.  He sentenced him to 7 years after
    credit for presentence custody.  The appellant appeals his convictions, but
    does not appeal sentence.

[5]

The appeal focuses on two
Charter
rulings made by the judge
    assigned to hear the pretrial motions (the motion judge).  In her first
    ruling, the motion judge held that the search of the apartment rented by Ms.
    Browne violated s. 8 of the
Charter
because the affidavit relied on to
    obtain the warrant did not contain grounds justifying the execution of a warrant
    at night (after 9:00 p.m.).  The search occurred about 9:50 p.m.  The motion
    judge went on to hold, however, that the drugs and guns found in the apartment
    during the search should not be excluded from evidence under s. 24(2) of the
Charter
:
    see
R. v. Browne and Robinson
, 2013 ONSC 2141 (the Search Ruling).  The
    appellant submits that the motion judge correctly held that s. 8 was violated
    by the execution of the warrant at nighttime, but erred in holding that the
    evidence should not be excluded.

[6]

In her second ruling, the motion judge held that the police had
    reasonable grounds to arrest the appellant, rendering the detention lawful and
    the search of the appellant, conducted as an incident of that arrest, a
    reasonable search under s. 8 of the
Charter
.  During that search the police seized the appellants keys, including
    a key to Ms. Brownes apartment and a key to her storage locker.  The Crown
    relied on those keys, along with other evidence, to support the argument that
    the appellant was in possession of the guns and drugs found in the storage
    locker and the apartment.

[7]

The motion judge further
    held that even if the police did not have reasonable grounds to arrest the
    appellant, rendering the detention arbitrary and the search unreasonable, she
    would not have excluded the keys seized from the appellant from evidence under
    s. 24(2) of the
Charter
:
    see
R. v. Browne and Robinson
, 2013 ONSC 2041
(the Arrest Ruling).

[8]

On appeal, counsel for
    the appellant submits that the motion judges finding that the police had
    adequate grounds to arrest was unreasonable rendering the arrest and the search
    unconstitutional.  He further contends that if he convinces this court that the
    arrest and search were unconstitutional, then this court should do its own s.
    24(2) analysis.  Counsel argues that the analysis should lead to the exclusion
    of the key to the apartment.

The Search of the Apartment

[9]

Personnel at Yellow Self Storage were renovating several storage lockers
    at their facility.  The contents of the units to be renovated were temporarily
    moved to other units.  In the course of the move, employees found a handgun and
    ammunition.  Their manager called the police.  On May 26, 2011, the police
    obtained a search warrant for the relevant storage unit.  Their search revealed
    10 guns, including a machine gun, an assault rifle and a sawed off shotgun,
    over 4,000 rounds of live ammunition, and 1.5 kilograms of ecstasy.

[10]

The records at Yellow Self Storage identified Ms. Browne as the renter
    of the unit from which the police believed the guns and drugs had been removed. 
    The police made efforts to locate Ms. Browne and a few days later learned that
    she rented apartment 610 at 135 Rose Avenue in Toronto.  The police decided to apply
    for a search warrant for the apartment.

[11]

Constable Todd Storey prepared the affidavit in support of the search
    warrant application.  He began working on the affidavit during the day on June
    1, 2011, but was also required to attend to other matters.  He eventually
    completed the affidavit and attended at the home of a justice shortly after 8:00
    p.m. that day.

[12]

In his affidavit, Constable Storey described the earlier search of the
    storage locker and Ms. Brownes connection to that locker.  Constable Storey indicated
    that he believed that a search of the apartment could yield Ms. Brownes rental
    agreement for the storage locker, keys to the storage locker, and documents pertaining
    to the ownership, purchase and sale, or transfer of the firearms found in the storage
    locker.  Constable Storey did not assert that he had reasonable grounds to
    believe that firearms would be found in the apartment.

[13]

The justice signed the search warrant just before 9:00 p.m.   Prior to
    signing it, he filled in the relevant blank indicating that the warrant could
    be executed between the hours of 9:00 p.m. June 1/11 to 9:00 p.m. June 3/11. 
    According to Constable Storey, the justice knew that police were waiting near
    Ms. Brownes apartment.

[14]

Constable Storeys affidavit did not request permission to execute the warrant
    at night, that is, after 9:00 p.m.  Nor did the affidavit identify grounds
    justifying the execution of the warrant at night.  Constable Storey and the
    justice did not discuss the timing of the execution of the warrant.  Neither
    turned their mind to the specific provisions in s. 488 of the
Criminal Code
applicable to the execution of search warrants at night.

[15]

At 9:02 p.m., Constable Storey advised the officers who were watching
    Ms. Brownes apartment that the justice had signed the warrant.  At about the
    same time, some of those officers saw Ms. Browne and the appellant walking away
    from the Rose Avenue apartment building toward the subway a short distance away. 
    Detective Michael Balint, the officer in charge of the surveillance detail,
    gave instructions to arrest Ms. Browne and the appellant.

[16]

The warrant authorizing the search of the apartment was executed at 9:50
    p.m.  By that time, the appellant and Ms. Browne were in custody and had been
    removed from the area.  The officers, thinking someone might still be in the
    apartment, broke the door down to gain entry.  Their subsequent search turned
    up two loaded handguns and crack cocaine.

[17]

The search occurred after 9:00 p.m. and was by definition in the
Criminal
    Code
a nighttime search.  Section 488 of the
Criminal Code
provides that search warrants must be executed by day unless the justice is
    satisfied, based on grounds set out in the affidavit in support of the warrant,
    that there are reasonable grounds to execute the warrant at night.  The terms
    of the warrant authorized its execution after 9:00 p.m., but there were no
    grounds set out in the affidavit to support executing the warrant at night.  The
    motion judge held that the failure to comply with s. 488 rendered the warrant
    invalid and the subsequent search of the apartment both warrantless and
    unreasonable.
[1]
The Crown does not challenge this finding.

[18]

Having found a breach of s. 8, the motion judge turned to the admissibility
    of the evidence found during the search.  She specifically applied the
    three-prong test enunciated in
R. v. Grant
, 2009 SCC 32
, [2009] 2 S.C.R. 353, at para. 71:  see
Search Ruling
, at paras. 86-102.  The motion
    judge ultimately concluded, at para. 102:

[O]n the facts of this case, to exclude the evidence,
    particularly the firearms, would undermine the
bona fide
, although not
    perfect, efforts of the police in investigating crime, and would bring the
    administration of justice into disrepute.

[19]

Counsel for the appellant acknowledges that the motion judges s. 24(2)
    ruling is entitled to deference as long as the motion judge has considered the
    proper factors and not made unreasonable or unsupported factual findings:  see
R.
    v. Cô
té
, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44.  However,
    his submissions invite the court to redo the s. 24(2) analysis done by the motion
    judge, especially as it involves the characterization of the police conduct resulting
    in the
Charter
violation, and the impact of that violation on the
    appellants privacy interests.

[20]

Dealing first with the nature of the police conduct, the motion judge
    characterized the failure of the police to either execute the warrant in the
    daytime, or comply with s. 488 as due to inadvertence and more technical
    than substantive:
Search Ruling
,
    at para. 91.  In coming to that conclusion, the motion judge accepted Constable
    Storeys evidence that while he was aware of the nighttime requirement in the
Criminal Code
, he had forgotten about that requirement when he
    prepared his affidavit and applied for the warrant.  In considering Constable
    Storeys explanation, it should be recalled that he had begun the preparation
    of his affidavit earlier in the day and was not anticipating executing the
    search warrant at night.  He neglected to turn his mind to the timing of the
    execution of the warrant when events intervened and delayed the completion of
    the affidavit and the attendance before the justice until shortly before 9:00
    p.m.   Clearly, as 9:00 p.m. approached, Constable Storey should have realized
    that the timing of the execution of the warrant had to be addressed either by
    complying with s. 488, or by delaying the execution of the warrant to the next
    morning.

[21]

I would not use the word technical to describe the failure to comply
    with s. 488.  I do, however, think it was open to the motion judge in the
    circumstances to characterize the non-compliance as inadvertent. Accepting
    that characterization, Constable Storeys failure to comply with s. 488 is not
    the kind of police misconduct that requires the court to disassociate itself from
    that conduct by excluding the evidentiary fruits of the search.  I would not
    interfere with the motion judges treatment of the police failure to comply
    with s. 488 as it relates to an assessment of the seriousness of the
Charter
-infringing state conduct
.

[22]

I also see no reversible error in the motion judges assessment of the
    impact of the s. 8 breach on the appellants privacy interests.  The police had
    ample grounds to obtain a warrant to search the apartment.  Given the failure
    to comply with s. 488, the warrant should have been executed before 9:00 p.m.
    or after 9:00 a.m. the next morning.  However, the actual impact of the search
    of the apartment on the privacy interests of both Ms. Browne and the appellant
    was not affected by the timing of the execution of the warrant.  The entry and
    search at 9:50 p.m. as opposed to an hour earlier, or the next morning, caused
    no additional harm to the appellants dignity, personal autonomy or privacy. 
    As the motion judge observed, the appellant was not present when the police
    entered and searched the apartment.

[23]

The motion judge concluded, at para. 95, that the failure to
    comply with s. 488 had no practical effect whatsoever on the
Charter
rights of Ms. Browne or Mr. Robinson.  I take the motion
    judge to mean no practical effect on the privacy interests of the appellant
    protected by s. 8.  That conclusion was open to the motion judge and I would
    defer to it.

[24]

The appellant has not
    satisfied me that the motion judge made any reversible error in her analysis of
    the admissibility of the evidence seized from the apartment.  I would not give
    effect to this ground of appeal.

The Arrest of the Appellant

[25]

Detective Balint was in charge of the officers assigned to watch Ms.
    Brownes apartment on Rose Avenue on the evening of June 1, 2011.  Detective
    Balint was an experienced officer with an extensive background in criminal
    investigations involving guns, drugs and gangs.  He also knew the Rose Avenue neighbourhood
    very well.

[26]

Detective Balint knew that Constable Storey was applying for a search
    warrant for the Rose Avenue apartment.  He anticipated executing that warrant
    if and when it was granted.  He and his fellow officers were also on the lookout
    for Ms. Browne.  It was their intention, if they saw Ms. Browne, to arrest her
    and charge her with possession of the firearms and drugs that they believed had
    been found in her storage locker a few days earlier.

[27]

Detective Balint knew of a prior association between the appellant and
    Ms. Browne.  They had known each other for some time and were together on one
    occasion when the appellant was arrested.  As of June 1, 2011, Detective Balint
    considered the appellant a person of interest in relation to the
    investigation pertaining to the firearms and drugs found in the storage
    locker.

[28]

Detective Balint also knew the appellant to be a player in the
    criminal sub-culture within the neighbourhood.  He knew the appellant had two
    prior convictions for firearm offences and had been the subject of an
    investigation in which it was alleged that the appellant had pistol whipped the
    victim.

[29]

Before he saw the appellant on the evening of June 1, Detective Balint
    did not have reasonable grounds to believe that the appellant was connected to
    the firearms and drugs that had been found in the storage locker.  He also did
    not have reasonable grounds to believe that the appellant was living at or
    otherwise connected to the Rose Avenue apartment.

[30]

At about 9:02 p.m. Detective Balint received word that the search
    warrant for the Rose Avenue apartment had been granted.  He believed that the
    search warrant would authorize a search for firearms.  In fact, as set out
    above, Constable Storey did not request a warrant to search for firearms, but
    had limited the warrant to a request to search for documents and other material
    connected to the firearms found in the storage locker.

[31]

Shortly after Detective Balint received word that the warrant had been
    granted, he was advised that Ms. Browne and a male person were walking away
    from the apartment building at 135 Rose Avenue toward the subway stop a short
    distance away.  As they were walking towards the subway, the male was
    identified as the appellant by another officer.  Ms. Browne and the appellant were
    holding hands.  Near the subway they stopped, embraced and kissed.  Ms. Browne
    and the appellant parted company.  She headed toward the subway and he headed back
    toward the Rose Avenue apartment.  Detective Balint instructed the officers to
    arrest both Ms. Browne and the appellant.

[32]

Two officers who had been following the appellant and Ms. Browne grabbed
    the appellant, forced him to the ground and handcuffed him.  Detective Balint,
    who was a few feet away when the appellant was forced to the ground, told the
    appellant that he was under arrest for possession of a firearm in relation to
    the Rose [Avenue] address.  Detective Balint told the appellant he had a right
    to counsel.

[33]

The officers searched the appellant as an incident of his arrest.  One
    of the officers found a set of keys in the appellants front pocket.  It turned
    out that one key was for the apartment and another was for the padlock on Ms.
    Brownes storage locker.

[34]

In deciding to arrest the appellant for possession of firearms at the
    Rose Avenue apartment, Detective Balint relied on the following:

·

he
    believed that a justice had just issued a warrant to search the Rose Avenue
    apartment for firearms;

·

he
    knew of the nature and variety of the guns found in the locker, the quantity of
    ammunition found there, and the drugs seized from the locker.  He believed that
    this locker was rented by Ms. Browne.  In his experience it was not uncommon
    for criminals to store guns in different places, so they dont keep all their
    eggs in one basket, so to speak;

·

he
    believed, based both on the information he received from the other officers at
    about 9:00 p.m., and his knowledge of their prior association, that the appellant
    and Ms. Browne had a close boyfriend/girlfriend relationship;

·

he
    believed, based on what the officers had told him, that Ms. Browne and the
    appellant had exited the Rose Avenue apartment moments before their arrest and
    that the appellant was returning to that apartment when he gave instructions to
    the other officers to arrest the appellant; and

·

he
    was aware of the appellants criminal lifestyle and, in particular, his prior
    involvement in firearms-related offences.

[35]

The defence accepted that Detective Balint honestly believed he had
    reasonable grounds to arrest the appellant.  The defence argued, however, that
    his belief could not be reasonably justified on the facts.  As noted by the motion
    judge, at paras. 62-66 of the Arrest Ruling, the defence arguments raised two
    specific issues.  First, was Detective Balints belief that there were
    reasonable grounds to believe that firearms would be found in the apartment
    reasonably justified?  Second, was Detective Balints belief that the appellant
    had sufficient knowledge of, and control over, any firearm found in the
    apartment to place him in possession of that firearm reasonably justified on
    the evidence?

[36]

Counsel for the appellant accepts that the motion judge properly
    identified the two relevant factual issues and the applicable legal
    principles.  He submits, however, that the motion judges findings are
    unreasonable and based on speculation rather than legitimate inferences
    reasonably available on the evidence.

[37]

This court can review the reasonableness of the motion judges
    findings.  In doing so, however, it does not make its own assessment of the
    evidence and the adequacy of the grounds relied on by the police officer, but
    instead considers only whether, on the totality of the evidence, the findings
    made by the motion judge were reasonably open to her.  I will address the two
    crucial findings separately.

Were there reasonable grounds to
    believe that there were firearms in the apartment?

[38]

When Detective Balint ordered the arrest of the appellant, he believed
    that a justice had just issued a warrant authorizing the entry and search of
    the apartment for firearms.  He had not yet seen the warrant as the officer
    delivering the warrant to the apartment had just left the home of the justice. 
    If the warrant granted by the justice had authorized the police to enter the
    apartment and search for firearms, the issuance of the warrant would have
    provided Detective Balint with reasonable grounds for the belief that firearms
    would be found in the apartment.  However, as it turned out, the search warrant
    did not authorize a search for firearms.  Can Detective Balints mistaken
    belief that the warrant did authorize a search for firearms provide reasonable
    grounds to believe that firearms would be found in the apartment?

[39]

Detective Balint believed, based on his knowledge of the investigation
    and specifically the nature and quantity of material seized from the storage
    locker rented by Ms. Browne, that the warrant to search her apartment, if
    granted, would inevitably authorize a search for firearms.  As he put it in his
    evidence, he believed that a search for firearms would have been the first
    thing requested by the affiant on the application for the warrant.  He was
    surprised, to say the least, that Constable Storey, a more junior and less
    experienced officer, did not believe that he had reasonable grounds to obtain a
    warrant to search for firearms.

[40]

Section 495(1)(a) of the
Criminal Code
authorizes a peace
    officer to arrest without warrant a person who on reasonable grounds the
    officer believes has committed an indictable offence.  The language focuses on
    the officers state of mind and the reasonableness of the officers belief,
    rather than the actual state of affairs.  Reasonable grounds can be based on a reasonable
    belief that certain facts exist even if it turns out that the belief is
    mistaken:  see
Eccles v. Bourque
,
    [1975] 2 S.C.R. 739, at pp. 744-45
;
R. v. Herritt
, 2015 NBCA 33
, 325 C.C.C. (3d) 325, at
    para. 21.

[41]

In my view, it was reasonable in the circumstances for Detective Balint
    to believe that the warrant authorized a search of the apartment for firearms. 
    The police had found an arsenal of unlawful weaponry in what they reasonably
    believed was Ms. Brownes storage locker a few days earlier. I think it was reasonable
    for a person of Detective Balints experience to infer that a person in
    possession of the number and kinds of weapons the police had found in what they
    believed was Ms. Brownes storage locker was a commercial trafficker in illegal
    firearms.  As Detective Balint testified, in his experience those persons kept
    their firearms in more than one place.  In my view, it was reasonably open to
    Detective Balint to believe that it was probable that Ms. Browne kept some of
    her firearms inventory in her apartment.

[42]

The motion judge considered the defence argument that Constable Storeys
    failure to request a warrant to search for firearms demonstrated that there were
    not objectively reasonable grounds to believe that firearms would be found in
    the apartment.  The motion judge did not agree that Constable Storeys judgment
    as to what might or might not be found in the apartment should be given equal
    weight to that of Detective Balint.  She noted that Constable Storeys
    affidavit was inconsistent as to his belief concerning the possibility that
    firearms would be found in the apartment.  She also observed that Constable
    Storey had much less experience in this kind of investigation than did
    Detective Balint.  Finally, the motion judge observed that Constable Storey was
    not aware of the observations made of Ms. Browne and the appellant shortly
    before 9:00 p.m. on June 1.  Those observations indicated that Ms. Browne had a
    very close relationship with the appellant, who had a significant history of criminal
    activity involving firearms.  The motion judge concluded that these factors
    placed Detective Balint in a position to make a different and more informed
    assessment of the likelihood of firearms being found in Ms. Brownes
    apartment:
Arrest Ruling
, at
    paras. 67-78.

[43]

The motion judges findings were reasonably open to her on the
    evidence.  This was not a case in which two officers with the same information
    arrived at different conclusions as to the existence of reasonable grounds: 
    see
R. v. Brown
, 2012 ONCA 225, 286 C.C.C. (3d) 481.  Here, one more
    experienced officer, with additional information not available to the other less
    experienced officer, formed the opinion that there were reasonable grounds to
    arrest the appellant.

[44]

The motion judge was alive to the different assessments made by
    Detective Balint and Constable Storey.  The mere fact that Constable Storey did
    not believe there were reasonable grounds to believe there were firearms in the
    apartment did not mean that Detective Balints belief could not be reasonable. Constable
    Storeys assessment and the basis for that assessment were part of the larger
    evidentiary picture that the motion judge had to consider in determining
    whether Detective Balints belief that there were weapons in the apartment was
    a reasonable one.  The motion judge offered a full explanation for discounting
    to some extent Constable Storeys assessment and preferring the assessment of
    Detective Balint.  I see no error in her analysis.

Were there reasonable grounds to
    believe that the appellant had possession of any firearm found in the
    apartment?

[45]

The police could arrest the appellant only if there were reasonable
    grounds to believe that he was in possession, either alone or with Ms. Browne,
    of any firearms found in the apartment.  Possession, for the purposes of the
    criminal law, requires both knowledge of and control over the thing said to be
    possessed:
Criminal Code
s. 4(3);
R. v. Pham
(2005), 77 O.R.
    (3d) 401 (C.A.), affd 2006 SCC 26, [2006] 1 S.C.R. 940.

[46]

Although the motion judge used the somewhat general word connected to
    describe the relationship between the apartment and the appellant needed to
    establish possession, at para. 90, she also expressly and correctly instructed
    herself on the necessary elements of possession:  see Arrest Ruling, paras. 66,
    84.  Counsel for the appellant does not allege any legal error by the motion
    judge.

[47]

In concluding that the appellant was sufficiently connected to the
    apartment to provide reasonable grounds to believe that he was in possession of
    any firearm found in the apartment, the motion judge referred to the
    appellants close proximity to the apartment immediately before his arrest.  Detective
    Balint had reasonable grounds to believe that the appellant and Ms. Browne had
    just left the apartment and he had reasonable and probable grounds to believe
    that the appellant was on his way back to the apartment when Detective Balint
    gave instructions to arrest him.

[48]

The motion judge also referred to the relationship between the appellant
    and Ms. Browne.  They had been friends for some time and had been together when
    the appellant was arrested a year earlier.  Based on the police observations of
    them at 9:00 p.m. on June 1, Detective Balint reasonably concluded that they
    were involved in an ongoing romantic relationship.

[49]

The motion judge also referred to Ms. Brownes personal history and the
    nature of the investigation.  The police had found an arsenal of guns and
    ammunition.  Ms. Browne was a 23-year old with no criminal record.  The police
    reasonably concluded that she was probably not acting alone in assembling the
    weaponry found in her storage locker.  The appellant, a known criminal, with a
    close personal relationship with Ms. Browne, and a significant history
    involving firearms-related offences, was an obvious candidate to fill the role
    of Ms. Brownes partner in the possession of the weapons found in the locker.

[50]

The facts of this case demonstrate the need to examine the totality of
    the evidence said to provide reasonable grounds from the practical perspective
    of the officer making the decision.  An officer deciding to arrest necessarily
    brings to bear his or her personal experience in the assessment of the relevant
    factors.  While evidence that the appellant and Ms. Browne had a close personal
    relationship could not, standing alone, reasonably put the appellant in
    possession of any guns found in her apartment, that relationship could take on
    a different meaning when combined with Detective Balints reasonable belief
    that Ms. Browne was likely not acting alone in respect of her possession of the
    arsenal found in her locker, and Detective Balints knowledge that the
    appellant, unlike Ms. Browne, had a well-established history of firearms-related
    offences.  All these factors, taken together, painted a picture which could
    provide reasonable grounds to believe that the appellant was Ms. Brownes
    partner in the criminal enterprise relating to the guns found in the locker.  That
    inference justified the further belief that the appellant was in joint possession
    with Ms. Browne of any firearms found in her apartment.

[51]

The appellant has not shown that the motion judges findings were
    unreasonable or based on speculation.  On those findings, the arrest was
    lawful, the detention not arbitrary and the search reasonable.  The keys seized
    in the search were properly admitted into evidence.

Conclusion

[52]

I see no error in either of the motion judges rulings and would dismiss
    the appeal.

Released: DD  MAY 30 2016

Doherty J.A.

I agree E.A. Cronk J.A.

I agree H.S. LaForme J.A.





[1]
Various other arguments challenging the validity of the warrant were rejected
    by the motion judge.  None of these arguments were renewed on appeal.


