



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barton, 2021 ONCA 451

DATE: 20210623

DOCKET: C64896

Feldman, Miller and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Zachary Barton

Appellant

Nathan Gorham and Breana Vandebeek, for
    the appellant

Robert Hubbard and Katie Doherty, for
    the respondent

Heard: June 17, 2021 by video
    conference

On appeal from the convictions entered
    on February 16, 2017 by Justice Suhail A.Q. Akhtar of the Superior Court of
    Justice, sitting with a jury.

REASONS FOR DECISION


OVERVIEW

[1]

Zachary Barton was convicted by a jury of
    firearms-related offences. During a warrantless search, police found a
    semi-automatic handgun inside a planter located in a common hallway outside Mr.
    Bartons apartment. The next day, while executing a search warrant, police
    found ammunition for the firearm and a bullet-proof vest inside Mr. Bartons apartment.

[2]

Mr. Barton appeals his convictions. He contends
    that the trial judge erred in concluding the semi-automatic handgun was not
    obtained in a manner that infringed or denied his rights under the
Canadian
    Charter of Rights and Freedoms
, given the causal, contextual, and temporal
    links he alleges between the search of the planter and what was conceded by the
    Crown to be unconstitutional police conduct in seeking to search his apartment
    without a warrant. In the alternative, Mr. Barton argues that the trial judge
    erred in finding that he did not have a reasonable expectation of privacy in
    the hallway or the planter.

ANALYSIS

[3]

We agree with Mr. Bartons submission that the
    trial judge erred in concluding that the semi-automatic handgun was not
    obtained in a manner that infringed his rights or freedoms in the meaning of
    s. 24(2) of the
Charter
.

Causal connection under s. 24(2)

[4]

Police officers discovered the semi-automatic
    handgun as a result of a step they had taken to gain unlawful warrantless entry
    into Mr. Bartons apartment. Specifically, they moved the planter in the
    hallway to assist their efforts in breaching the front door. After moving the
    planter, the officers observed a string protruding from its cylinder. Inferring
    that the string might be attached to a key that would give them warrantless
    entry to Mr. Bartons apartment, the officers pulled the string which led to a bag
    secreted in the planter. They opened the bag and discovered the semi-automatic
    handgun inside.

[5]

Since the semi-automatic handgun was discovered as
    a result of a step officers had taken to gain unlawful entry to the apartment,
    the discovery is causally connected to the
Charter

breach: see,
R. v. Goldhart
, [1996] 2 S.C.R. 463, at paras. 33-35. The trial judge
    erred in finding otherwise.

Contextual and temporal connections under s.
    24(2)

[6]

The trial judge also erred in drawing the
    conclusion on these facts that the contextual and temporal connections between
    the unlawful entry of the apartment and the discovery of the semi-automatic
    handgun were remote and attenuated. We see no basis in the evidence for these holdings.

[7]

We are therefore persuaded that the
    semi-automatic handgun was unconstitutionally obtained. As a result, reference
    to the discovery of the semi-automatic handgun must be excised from the
    information to obtain the search warrant.

Related issues necessitating a new trial

[8]

Unfortunately, we are not in a position to
    determine whether this outcome undermines the grounds for the search warrant.
    Having decided that the semi-automatic handgun was not unconstitutionally
    obtained, the trial judge upheld the warrant without resolving the Crowns
    fall-back position that, even without the unconstitutionally obtained evidence,
    the warrant could be upheld at Step Six of the test from
R. v. Garofoli
,
    [1990] 2 S.C.R. 1421 by disclosing and considering redacted information that
    was before the issuing judge. That issue cannot be resolved on the record
    before us.

[9]

A new trial is therefore required to determine
    whether excision of the discovery of the semi-automatic handgun from the
    warrant information will lead to a finding that the later warranted search was
    unconstitutional. This finding could, in turn, have an impact in deciding whether
    to exclude the semi-automatic handgun itself, since additional
Charter

breaches occurring during the same investigation can enhance the
    seriousness of each of the
Charter

breaches: see e.g.,
R.
    v. Davidson,
2017 ONCA 257, 352 C.C.C. (3d) 420, at para. 48.

[10]

Moreover, if the ammunition and vest are
    excluded at the retrial, this would not only resolve the possession charges
    with respect to those items, but could affect the strength of the evidence
    regarding Mr. Bartons possession of the semi-automatic handgun. It is
    therefore prudent for us to refrain from attempting to determine the
    admissibility of the semi-automatic handgun, or to resolve any of the charges
    before us, based on incomplete information.

[11]

It is also unnecessary for us to determine
    whether Mr. Barton had a reasonable expectation of privacy in the hallway or in
    the planter that could support an additional s. 8
Charter
violation. That
    issue can be determined by the trial judge during the retrial.

CONCLUSION

[12]

Accordingly, we set aside Mr. Bartons convictions
    and order a retrial on all charges.

K.
    Feldman J.A.

B.W.
    Miller J.A.

David
    M. Paciocco J.A.


