



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Allen, 2017 ONCA 170

DATE: 20170228

DOCKET: C61178 & C61762

Cronk, Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gregory Allen

Appellant

Michael Dineen, for the appellant

Michael Fawcett, for the respondent

Heard: February 21, 2017

On appeal from the conviction entered on June 4, 2015 and
    the sentence imposed on September 25, 2015 by Justice Glenn A. Hainey of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of possession of a loaded prohibited
    firearm, possession of cocaine for the purpose of trafficking, and dangerous
    driving following a high risk, vehicular police take-down triggered by a confidential
    informants tip. He received a global sentence of five years imprisonment,
    less credit for 820 days pre-sentence custody. He appeals both his conviction
    and, if leave is granted, his sentence.

[2]

On the conviction appeal, the appellant is represented by counsel. With
    respect to sentence, Mr. Dineen, who represents the appellant on the conviction
    appeal, made submissions on behalf of the appellant but did so in his capacity
    as duty counsel. The appellant was content that Mr. Dineen do so and that, in
    the circumstances, the matter proceed in his absence.

[3]

At the conclusion of the hearing, the conviction appeal was dismissed,
    leave was granted to appeal sentence and the sentence appeal was allowed. The
    sentence was varied to make the six-month sentence imposed for the dangerous
    driving conviction run concurrently with the sentence imposed for the firearm conviction
    (three years imprisonment), rather than consecutively. Reasons were to follow.
    These are those reasons.

A.

The conviction appeal

[4]

The central issue at trial was whether the police had violated the
    appellants rights under ss. 7 to 10 of the
Canadian Charter of Rights and
    Freedoms
. The trial judge found that they had. The trial judge then had to
    go on and decide whether the evidence seized at the time of arrest should be
    excluded under s. 24(2) of the
Charter
. He determined that it should
    not and admitted the handgun and the drugs seized from the appellants vehicle
    incident to arrest. He concluded that to admit the evidence would not bring the
    administration of justice into disrepute.

[5]

The only issue on the conviction appeal is the trial judges s. 24(2)
Charter
analysis. The appellant argues that, in carrying out this analysis, the
    trial judge erred in at least two respects.

[6]

First, the appellant maintains that the trial judge overemphasized the
    seriousness of the offences by placing particular significance on the public
    interest in the prosecution of firearm charges. This, the appellant submits,
    disregards the Supreme Court of Canadas holding in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353,
that
    the seriousness of the offence, including the fact a firearm was seized, can cut
    both ways and should add little to the balancing exercise. In the appellants
    view,
Grant
and the case law since
Grant
have held that
    there is not a different test for admission where the impugned evidence is a
    firearm:
R. v. Dunkley
, 2016 ONCA 597, 131 O.R. (3d) 721, at para. 53.

[7]

We do not give effect to this ground of appeal.

[8]

In our view, the trial judge committed no error in his consideration of
    the
Grant
factors and, absent error, his weighing of those factors is
    entitled to deference in this court. The trial judge found that the first
Grant
factor, the seriousness of the police conduct, was neutral given that the
    police acted in good faith, with an honest but mistaken belief as to the
    lawfulness of the arrest, and there was no intentional violation of the
    appellants
Charter
rights. These findings are well supported in the
    record.

[9]

Although the second
Grant
factor, the impact of the breaches on
    the
Charter
rights of the appellant, favoured the exclusion of the
    evidence, we agree with the trial judges conclusion that the third factor, the
    societal interest in adjudicating the case on the merits, tipped the balance in
    favour of admission. The trial judge did not, as the appellant suggests, give
    undue weight to this factor and the fact that a firearm was involved.

[10]

The second suggested error is that the trial judge viewed the fact that
    the police had obtained two warrants to search a different vehicle associated
    with the appellant as being indicative of good faith. In the appellants
    submission, the judicial authorizations that had been obtained are irrelevant
    because they pertain to a vehicle having a different license plate than the one
    stopped by the police.

[11]

We disagree. The trial judges factual assessment of the officers conduct
    and his conclusion that they acted in good faith is entitled to deference.

[12]

The trial judge accepted the officers testimony that they considered
    the informants tip to the effect that the appellant was in possession of a
    firearm to be reliable. The fact that the informant provided a different license
    plate number for the vehicle (although the description of the car was generally
    accurate) does not render the tip as to the appellant being in the possession
    of a firearm valueless. The two judicial officers who reviewed the informants
    tip concluded, as did the arresting officers, that the tip provided reasonable
    and probable grounds to believe that the appellant was in possession of a
    firearm and that it would be found in the vehicle he was driving. That
    information proved to be correct.

[13]

As a result, we dismiss the conviction appeal.

B.

The sentence appeal

[14]

Before committing the offences, the appellant was seriously injured by a
    stray bullet originating from a confrontation that occurred near his place of
    work and in which he had no involvement. As a result of this injury, the
    appellant lost his business and now suffers from serious physical limitations
    that make his imprisonment particularly difficult.

[15]

The appellant is confined to a wheelchair. For the 12 months before
    trial, he had to be housed in segregation because of the absence of facilities
    at the institution to accommodate his condition. In addition, he has not
    received the physiotherapy he requires to prevent the atrophy of his leg
    muscles and has had to supplement his diet with food items from the canteen. This
    is because he suffered a ruptured stomach in the shooting and cannot digest
    many processed foods.

[16]

The trial judge mentioned the fact that the appellant had suffered the
    injury and was currently in a wheelchair. In fashioning the appropriate
    sentence, however, the trial judge does not appear to have considered the
    appellants condition and specifically, the adverse impact that the injuries
    suffered as a result of the unfortunate shooting will have on his incarceration.
    It was apparent on the record that, due to the exceptional difficulties encountered
    in managing the appellants condition, incarceration has a disproportionate
    impact on him:
R. v. T.L.B.
, 2007 ABCA 61, 409 A.R. 40, at para. 34;
R.
    v. C.D.
, 2012 ONCA 696. In our view, this impact ought to have been taken
    into account.

C.

conclusion

[17]

It is for these reasons that we dismissed the appellants conviction
    appeal, granted leave to appeal sentence and varied the sentence by making the six-month
    sentence imposed for dangerous driving concurrent, rather than consecutive, to
    the sentence imposed for the firearm offence.

E.A.
    Cronk J.A.

Paul
    Rouleau J.A.

B.W.
    Miller J.A.


