



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wright, 2013 ONCA 778

DATE: 20131224

DOCKET: C56668

Doherty, Feldman, MacPherson JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sylvanus Wright

Appellant

Matthew Gourlay and Christine Mainville, for the
    appellant

Stacy Young, for the respondent

Heard: December 10, 2013

On appeal from the conviction entered on April 30, 2012
    by Justice Lack of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his convictions for possession of a weapon for a
    dangerous purpose (s. 88(1) of the
Criminal Code,
R.S.C. 1985, c. c-46),
    unauthorized possession of a firearm in a vehicle (s. 94(1)), and careless
    transport of a restricted weapon (s. 86(1)). The basis for the appeal is the
    trial judges rulings, first that the search of the trunk of the vehicle was
    not unreasonable and not contrary to s. 8 of the
Canadian Charter of Rights
    and Freedoms
and second, if the search was a breach of the appellants
    right against unreasonable search and seizure, that the weapon should be admitted
    into evidence under s. 24(2) of the
Charter
.

[2]

The search took place under the following circumstances. On July 5, 2008
    at around 1:00 a.m., wiretap officers informed Detective Jones that they had heard
    communications between the appellant and Emyries Lewis indicating that the
    appellant might have a firearm in one of two cars, a Honda or a Lexus. Detective
    Jones travelled to Oshawa, where around 2:00 a.m., having located the two cars
    in the parking lot of a club, he briefed officers in the vicinity of that
    parking lot. He told the officers he had reliable information that there was a
    firearm in one of two cars, which he described with their license plate
    numbers.

[3]

Lack J. found that Detective Jones did not pass on the names of the two
    suspects, nor did he convey that the source of the information was a wiretap.
    Although he testified that he wanted the cars stopped and searched, the
    officers understood that they were to stop the two cars to try to determine if
    there was a firearm, but had no direct order to search.

[4]

The Lexus, driven by Mr. Lewis, was stopped but eventually let go.

[5]

Two other officers attended the Honda which had been stopped by two
    officers almost immediately after the Lexus was stopped. One officer smelled
    liquor on the breath of the driver, McLean, who was administered the screening
    test, registered a warn and received a 12-hour license suspension.

[6]

The other officer checked the appellants identification and received
    information from the Toronto Police database that the appellant was considered
    armed and dangerous.

[7]

As the appellants license was also suspended, he could not drive the
    car in McLeans place. The appellant called his girlfriend to come but she
    could not. The police then told the two men that the car would have to be
    towed. At that point, the appellants demeanor changed from relaxed to very
    nervous. He made a point of saying the car was his girlfriends, he did not
    know what was in it and that nothing in it belonged to him. He disavowed
    ownership of the cell phones in the car and told McLean strongly, when McLean
    was going to take one, thats not yours.

[8]

The appellants demeanor and attitude changed once the car was going to
    be towed, and after one of the officers inadvertently opened the trunk when he hit
    the release button while taking the keys from the ignition. Based on that
    change in demeanor, the officers decided they had reasonable and probable
    grounds to search the vehicle. In the back of the trunk inside a black shoulder
    bag wrapped in some shirts the officers found a handgun. The officers never,
    however, considered whether there were exigent circumstances requiring an
    immediate search.

[9]

The trial judge concluded, based on the totality of the circumstances,
    that the officers had reasonable and probable grounds to search the car. These
    included the reliable information about a gun from a superior officer and the
    appellants change in demeanor and attitude once the trunk was opened and the
    car was going to be towed to the police station.

[10]

Section
    117.02 of the
Code
allows a warrantless search for firearms in exigent
    circumstances. It provides:

117.02 (1) Where a peace officer believes on
    reasonable grounds

(a) that a weapon, an imitation firearm, a prohibited
    device, any ammunition, any prohibited ammunition or an explosive substance was
    used in the commission of an offence, or

(b) that an offence is being committed, or has been
    committed, under any provision of this Act that involves, or the subject-matter
    of which is, a firearm, an imitation firearm, a cross-bow, a prohibited weapon,
    a restricted weapon, a prohibited device, ammunition, prohibited ammunition or
    an explosive substance,

and evidence of the offence is likely to be found on a person,
    in a vehicle or in any place or premises other than a dwelling-house, the peace
    officer may, where the conditions for obtaining a warrant exist but, by reason
    of exigent circumstances, it would not be practicable to obtain a warrant,
    search, without warrant, the person, vehicle, place or premises, and seize any thing
    by means of or in relation to which that peace officer believes on reasonable
    grounds the offence is being committed or has been committed.

[11]

The
    trial judge did not consider whether there were exigent circumstances that
    allowed the officers to search the trunk without a warrant.

[12]

On
    appeal, the Crown argued that there were exigent circumstances because of the
    threat either to public or to police safety, from the fact there may have been
    a firearm in the car. The Crown also argued that the search was justified under
    the common law
Waterfield
doctrine (
R v. Waterfield
, [1963] 3
    All E.R. 659) on the basis that once the police had control and responsibility
    for the vehicle, they had the power to examine its contents for personal or
    public safety.

[13]

The
    problem with both of these arguments is that the appellant and McLean had been
    patted down and had no access to the car by the time of the search. Further,
    the police were not performing a safety check but a search for the weapon they
    had been directed to.

[14]

It
    is not necessary, however, to finally decide whether there was a breach of s. 8
    in this case. We are satisfied that even if there was a breach, the firearm was
    properly admitted into evidence under s. 24(2) of the
Charter
and that
    its admission would not bring the administration of justice into disrepute.

[15]

Applying
    the three criteria from
R v. Grant
, 2009 SCC 32, the first is the
    seriousness of the
Charter
-infringing conduct. We agree with the trial judges
    finding that the officers acted in good faith in the sense that they did not
    decide to search the vehicle until they had developed the requisite reasonable
    and probable grounds in light of unfolding events at the scene of the vehicle
    stop. They knew they did not have reasonable and probable grounds when they
    first stopped the Honda, and were only satisfied that these grounds developed
    once the appellant (a) became noticeably concerned about the police taking the
    car, and (b) began to dissociate himself from the car and its contents.
    Although the officers should have but did not advert to the existence of
    exigent circumstances or to officer or public safety, if that failure caused a
    breach of s. 8, it still places the seriousness of the
Charter
infringing
    conduct at the lower end of the spectrum on this occasion.

[16]

The
    second
Grant
factor is the impact of the breach on the appellants
    expectation of privacy. Again, the impact is relatively low in the specific
    circumstances of this case. A persons expectation of privacy in his (or his
    partners) vehicle is less than in his residence:
R. v. Caslake
[1998] 1
    S.C.R. 51;
R. v. Alkins
(2007), 85 O.R. (3d) 161 (C.A.) at para 40;
R.
    v. McKenzie
2011 ONCA 42 at para. 11. In this case, the vehicle was about
    to be towed to the police station under the statutory authority of s.48(11) of
    the
Highway Traffic Act,
R.S.O.
    1990 c. H.8,
which permits the police to impound a vehicle where
    the driver fails the roadside test
.
As
    this court determined in
R v. Wint
, 93 O.R. (3d) 514, the right to impound a vehicle
    also includes the right to inventory its contents. This further reduces the
    expectation of privacy when a vehicle is driven on the roads.


[17]

The
    third factor is societys interest in the adjudication of the case. Gun
    violence and gun possession are matters of serious concern in our society. A
    loaded firearm is also reliable evidence and was essential to prove the Crowns
    case. All of these factors favour inclusion.

[18]

The
    final step is to balance all of the
Grant
factors.  Given the finding that
    the officers were acting in good faith and that any potential breach was at the
    lower end of the spectrum, the reduced expectation of privacy and the
    seriousness of the charges, the balance favours admission of the evidence.

[19]

Counsel
    for the appellant did, however, raise one further concern. He pointed out that
    if in future, officers believe they can search for a gun where there are no
    exigent circumstances and the gun will be admitted, then the purpose of s. 117.02
    of the
Code
will be undermined. That is a legitimate potential concern
    which will have to be addressed if such circumstances arise in the future.

[20]

On
    balance, in the particular circumstances of this case, the gun should not be
    excluded under s. 24(2).

[21]

The
    appeal is therefore dismissed.

D. Doherty J.A.

K. Feldman J.A.

J.C. MacPherson J.A.


