



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Greer, 2020 ONCA 795

DATE: 20201214

DOCKET: C65783

Tulloch, Paciocco and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Greer

Appellant

Brad J. Greenshields, for the appellant

Michael Perlin, for the respondent

Heard: August 19, 2020 by video conference

On appeal from the convictions entered
    on October 23, 2015, and the sentence imposed on March 14, 2016, by Justice Eleanor
    M. Schnall of the Ontario Court of Justice.

Paciocco J.A.:





[1]

Michael Greer was convicted in the Ontario Court
    of Justice of charges arising from a residential break-in and theft of property
    that included a substantial quantity of authentic military-grade weaponry

[2]

Shortly after the break-in on July 17, 2014, a
    confidential informant (CI) provided the police with information that Mr.
    Greer had been involved. Mr. Greer and his girlfriend, Theresa Ann Symes, were
    placed under surveillance. In addition, several searches were conducted which
    produced evidence central to Mr. Greers convictions.

[3]

Specifically, in a warrantless search during a
    traffic stop on July 22, 2014, ammunition consistent with that stolen in the
    break-in was found in Mr. Greers bag and on his person (the traffic-stop
    search).

[4]

On September 3, 2014, a warrantless search of a
    backpack that Mr. Greer had been seen wearing before crashing a stolen
    motorcycle, and that was found at the crash site, revealed knives or bayonets
    later identified by the owner as stolen during the break-in (the backpack
    search).

[5]

Based on the information from the CI, their
    surveillance, and the traffic-stop and backpack searches, police also obtained
    a warrant to search several locations linked to Mr. Greer. Those search
    warrants were executed on September 4, 2014 (the search warrant searches). At
    each location, property was discovered that had been stolen in the break-in.

[6]

That same day, police searched Ms. Symes
    Chrysler Intrepid motor vehicle (the Intrepid) ostensibly with her consent
    (the search of the Intrepid). Property stolen in the break-in was found in
    the vehicle and a pair of Airwalk shoes were seized from the trunk.

[7]

Prior to trial, defence counsel served notice to
    challenge the search warrant searches under s. 8 of the
Canadian Charter of
    Rights and Freedoms
. No notice was given to challenge the warrantless
    searches. In circumstances I will explain, this
Charter

notice
    was served before defence counsel received disclosure of the Information to
    Obtain (ITO) that was used to procure the search warrants.

[8]

Indeed, the ITO was not disclosed until the end
    of the second day of the trial. When defence counsel informed the trial judge the
    next day that he was considering bringing a
Garofoli

application
    to obtain leave to cross-examine the affiant of the ITO, the trial judge ruled
    that there would be no
Garofoli

application. She did, however,
    permit defence counsel to file an amended
Charter

notice. Once
    again, the amended notice identified challenges only to the search warrant
    searches.

[9]

Ultimately, the trial judge found no
Charter

violations. All relevant evidence obtained during those searches was
    admitted. Expert evidence was also presented associating one of the Airwalk
    shoes with a footprint left during the break-in. The trial judge found that the
    Airwalk shoes belonged to Mr. Greer, and convicted Mr. Greer of multiple
    charges, including break and enter, and numerous counts of possession of stolen
    property.

[10]

Mr. Greer appeals those convictions on several
    grounds. It will be convenient to address those grounds in the following order.

[11]

First, Mr. Greers appeal counsel, who did not
    represent Mr. Greer at trial, argues that the trial judge erred by ruling that
    Mr. Greer lacked standing to challenge the validity of the search of the
    Intrepid, which led to the seizure of the Airwalk shoes. In the alternative, he
    argues that even if Ms. Symes consent to the search of the Intrepid could not
    be successfully challenged, Mr. Greer nonetheless had standing to challenge the
    seizure of the Airwalk shoes.

[12]

I would reject this ground of appeal. As I will
    explain below, in ruling that Mr. Greer did not have a reasonable expectation
    of privacy in the Intrepid, the trial judge arrived at the only finding that
    could be supported on the evidence. As for Mr. Greers supplementary argument
    that the trial judge erred by not recognizing his standing to challenge the
    seizure of the Airwalk shoes, that argument was not made at trial, nor has Mr.
    Greer sought leave to make this argument for the first time on appeal. Had he
    done so, I would not have granted leave. Based on fully-litigated, material
    factual findings made by the trial judge, which I would not disturb, it is
    evident that a
Charter

challenge to the seizure of the Airwalk
    shoes could not possibly have succeeded, even if it had been brought at trial.
    In those circumstances, it would not be in the interests of justice to
    entertain this argument for the first time on appeal.

[13]

Second, Mr. Greers appeal counsel urges that
    the trial judge did not conduct a fair hearing of the s. 8
Charter
issues,
    thereby causing a miscarriage of justice. He focuses, with varying levels of
    intensity, on the trial judges treatment of all four searches: the
    traffic-stop search, the backpack search, the search warrant searches, and the
    search of the Intrepid.

[14]

I would dismiss this ground of appeal, as well.
    Mr. Greers defence counsel did not bring
Charter

challenges at
    trial to the first two searches listed above, so no miscarriage of justice can
    arise relating to those matters.

[15]

I do accept that, in addressing the latter two
    searches, the trial judge failed to act fairly by making rulings without
    entertaining submissions from defence counsel, and without providing meaningful
    reasons. However, neither of these unfortunate episodes, which occurred during
    a difficult trial that got underway before the parties were fully ready to
    proceed, gave rise to a miscarriage of justice. Even if Mr. Greer had been permitted
    to bring a
Garofoli

application, it is evident that any
    cross-examination that could have been ordered would not have supported an
    effective challenge to the search warrants. With respect to the trial judges
    ruling that Mr. Greer did not have standing to challenge the search of the
    Intrepid, as I explain in analyzing Mr. Greers first ground of appeal, it is
    clear Mr. Greer did not have the standing he was claiming. The trial judges
    denial of standing was inevitable, even if a full standing hearing had been
    conducted.

[16]

Third, Mr. Greers appeal counsel argues that
    the trial judge erred in upholding the issuing justices finding that there
    were reasonable grounds for the search warrants. As I will explain, there were
    ample grounds to support the search warrants. There is no basis for interfering
    with the trial judges decision.

[17]

Fourth, Mr. Greers appeal counsel contends that
    the trial judge erred in finding that the Airwalk shoes belonged to him. Again,
    for the reasons provided below, that conclusion was open to the trial judge on
    the evidence. Accordingly, this ground of appeal must be dismissed.

[18]

I would therefore dismiss Mr. Greers appeal.

MATERIAL FACTS

A.

THe Investigation

[19]

On July 17, 2014, Ronald Van Meeterens
    residence was burglarized. Stolen property included 32 military-related
    firearms, military knives, 3000 rounds of ammunition, electronics, and Blu-ray
    DVDs. Footprints were left during the break-in, including one on the gunroom door,
    and another in the laundry room.

[20]

Shortly after the burglary, a single, unproven CI
    provided the police with information that the appellant, Michael Greer, had
    been involved in the break-in and was attempting to sell some of the stolen firearms.

[21]

Mr. Greer and his girlfriend, Theresa Ann Symes,
    were placed under surveillance. During the surveillance, Mr. Greer and Ms.
    Symes were observed on several occasions in a gold 2004 Chrysler Intrepid motor
    vehicle operated by and registered to Ms. Symes. They were also observed at
    Wingham Legion Trailer Park, where it was confirmed that they were occupying
    two camping lots, living in two tents. They were followed, as well, to two self-storage
    units, one at Wingham Self Storage and the other at Teeswater Super Storage. It
    was confirmed that Mr. Greer rented the two storage facilities from a single
    proprietor.

(1)

The Traffic-Stop Search

[22]

On July 22, 2014, Mr. Greer was travelling as a
    front seat passenger in a vehicle operated by Kent Wall. The rear hatch of the
    vehicle was open and two Ontario Provincial Police Officers, Cst. Smith, and
    Sgt. Foxton, affected a traffic stop.

[23]

Cst. Smith observed an open case of beer behind
    the passenger seat and elected to search the vehicle under the authority of the
Liquor Licence Act
, R.S.O. 1990, c. L.19. Mr. Wall and Mr. Greer
    exited the vehicle.

[24]

Mr. Greer acknowledged ownership of a bag that
    was on the floor of the passenger side of the vehicle. Cst. Smith searched the bag
    and discovered two brass nine-millimetre rounds of ammunition. Mr. Greer was
    then searched, and three more brass nine-millimetre rounds of ammunition were
    found, one with a hollow point.

[25]

When Mr. Wall exited the vehicle, Sgt. Foxton
    observed a round of .223 calibre long gun ammunition on the seat that Mr. Wall had
    vacated. Sgt. Foxton, fearing that Mr. Wall might have a weapon, searched Mr.
    Wall and discovered an empty black ammunition magazine in his cargo pants.

[26]

On July 31, 2014, Mr. Van Meeteren used grind
    marks on the black ammunition magazine to assist in identifying it as his, and
    confirmed that the ammunition seized during the traffic stop was similar to ammunition
    taken during the break-in.

(2)

The Backpack Search

[27]

On September 3, 2014, surveillance officers
    observed Mr. Greer travelling as a passenger in Ms. Symes Intrepid from the
    Wingham Legion Trailer Park to Teeswater Super Storage. Mr. Greer entered a
    storage unit and then left the area using a motorcycle that had been inside. Police
    knew he was not a licensed driver. Mr. Greer was observed heading towards
    Wingham. Cst. Boudreau, who was participating in the surveillance, noted that Mr.
    Greer was wearing a backpack when he drove away.

[28]

A police vehicle was stationed on the outskirts
    of Wingham. When Mr. Greer was within sight of the police vehicle, he quickly
    spun the motorcycle around and travelled at high speed back towards Teeswater.
    He lost control, crashing. Injured, he ran from the motorcycle but was
    apprehended. A backpack was found at the roadside near the motorcycle and
    searched. The Information to Obtain (ITO) of OPP Det. Cst. Scott Lobb,
    subsequently used to obtain search warrants, recorded:

Upon search incident to arrest, Detective
    Constable DUNN observed two knives/bayonets in sheaths inside GREERs backpack
    that he was wearing. One of the knives appeared to be a bayonet style knife
    designed to be attached to the end of a gun barrel. Further, it was discovered that
    the motorcycle was stolen from the Kitchener area.

[29]

The motorcycle had been stolen on November 6,
    2012. The licence plate had since been changed.

[30]

Mr. Van Meeteren was shown the knives or bayonets
    that had been seized from the backpack. He identified them as his and confirmed
    that they had been stolen from his home.

(3)

The Search Warrant Searches

[31]

Based primarily on the foregoing information,
    Det. Cst. Lobb swore the ITO referred to above, and, on its strength, secured
    warrants to search Wingham Legion Branch 180 Trailer Park, Sites 30 and 31; Teeswater
    Super Storage, Unit 12; and Wingham Self Storage, Unit 47, all of which were locations
    that Mr. Greer had control over. The warrants authorized the search for
    itemized property stolen in the Van Meeteren break-in, as well as the
    motorcycle licence plate that had been on the motorcycle at the time it was
    stolen. After the warrants were issued, the ITO was sealed.

[32]

The search warrants were executed on September
    4, 2014. At each location, property was discovered that had been stolen during
    the Van Meeteren break-in. None of the firearms were recovered.

(4)

The Search of the Intrepid

[33]

On September 4, 2014, police conducted a search
    of Ms. Symes Intrepid, claiming that she had consented. Some property stolen in
    the Van Meeteren break-in was found in the vehicle. Cst. Lucier also seized a
    pair of size 10 mens black Airwalk shoes from the trunk of the car.

B.

THE TRIAL

[34]

On March 9, 2015, a four-day trial was set to
    commence on April 27, 2015. Mr. Greer was in custody at the time.

(1)

The Disclosure
    Request for the ITO and the First Notice of Application

[35]

By letter dated April 2, 2015, defence counsel requested
    disclosure of the search warrant ITOs for the first time. When that request was
    made, the single ITO used to obtain the three warrants was still under seal in
    Stratford, Ontario. Before the ITO could be disclosed, an order would be
    required unsealing it, and it had to be reviewed for possible editing to
    protect the identity of the CI who had provided the information that
    precipitated the investigation of Mr. Greer.

[36]

On April 7, 2015, the first working day after
    the Easter weekend, defence counsel served a boiler-plate Notice of
    Application, seeking to bring a s. 8
Charter

challenge to the search
    warrants that had been used to search Wingham Legion Trailer Park and the two
    storage facilities. The grounds identified were that the searches were
    undertaken without reasonable and probable grounds, the warrants were obtained
    with inaccurate and incomplete information, and the search warrants had not
    been properly executed. The facts supporting the enumerated challenges were not
    particularized in the Notice of Application and no references were made to any
    of the warrantless searches.

[37]

On April 21, 2015, the trial Crown (who is not
    Crown counsel on appeal) filed a response asking for Mr. Greers
Charter

motion to be dismissed as non-compliant with the
Criminal Rules of the
    Ontario Court of Justice
, SI/2012-30 (the rules), as it does not include
    any factual or detailed basis upon which the Applicants complaint is made, or
    the evidence he intends to rely on during the
Charter

voir

dire
.

[38]

When the trial commenced on April 27, 2015, the
    ITO had yet to be disclosed. Defence counsel immediately advised the trial
    judge of this, along with other concerns he had about late disclosure. He
    expressed concern about his inability to prepare properly for the trial. He commented
    that he could not proceed with a
Garofoli

application without
    knowing what the ITO contains.

[39]

In the colloquy that followed, the circumstances
    surrounding the disclosure of the ITO were explored. The trial Crown notified
    the trial judge that the disclosure of the ITO had not been raised during the
    four pre-trials that had been held. The first time the request was made was
    over the Easter weekend, approximately three weeks earlier. She said she
    received the disclosure letter and the
Charter

application at
    the same time. The trial Crown also explained that she was on vacation when the
    disclosure letter arrived but had since taken steps to have the ITO unsealed
    and brought from Stratford.

[40]

The trial judge questioned how defence counsel
    could set a four-day trial in which the search warrant would be challenged when
    nobody has the ITOs. She also told defence counsel that if he had wanted to
    bring a
Garofoli

application, he had set the trial way too
    early. Defence counsel responded that he was fairly confident he had
    requested the three search warrants during the resolution meetings. He said,
    I suppose, really, what I assume when I ask for search warrant information is
    that the ITOs assumed in that; that, that in getting the search warrant, you,
    you get the, the ITOs as part of that disclosure. When the trial judge
    insisted that he had to make a specific request to get the ITOs unsealed and
    produced, defence counsel said, I was not even aware they were sealed.

[41]

Defence counsel was granted a recess to speak to
    his client. When he returned, he advised the trial judge, I have spoken to my
    client. This trial has been set for several months. He does not want to be
    prejudiced by having to put it off. He said he was considering asking for a
    stay of proceedings. The trial judge challenged this suggestion, noting that defence
    counsel had not made clear what responsibility the trial Crown had not
    fulfilled. She asked defence counsel if the problems could be fixed. He said
    that, after talking to his client, it was his view that the more productive
    course would be to move forward by dealing with Crown evidence that doesnt
    touch on the search warrant or other items he was alleging had not been
    disclosed.

[42]

In the discussion that followed, responsibility
    for the non-disclosure of the ITO was addressed again. Defence counsel
    submitted that the Crown had an affirmative duty to provide ITOs and that he
    was not required to go begging for them. The trial judge disagreed and told
    defence counsel that his failure to know that the ITO had been sealed was no
    excuse. She said, You cant, on the morning of trial, say, Oh, by the way, I
    thought about it and I asked for the ITOs to be unsealed approximately two
    weeks ago. It doesnt work that way. Later, she said, You do not bring the
Garofoli

application on the morning of trial. You bring it before the trial.

[43]

During their exchange, the trial judge commented,
    Im very concerned about the fact that youre not ready to proceed this
    morning and [Mr. Greer is] in custody. When questioned again about how the
    problem could be fixed, defence counsel repeated his earlier suggestion that
    they proceed with evidence that can be called uncontentiously. The trial Crown
    agreed with this suggestion, and the parties discussed which witnesses could be
    called. After agreement was reached, the trial proceeded.

(2)

The
Garofoli

Application Ruling

[44]

The ITO was not edited and disclosed until the end
    of the second day of trial, April 28, 2015. On April 29, 2015, as the third day
    of trial was beginning, defence counsel was making preliminary comments. The
    following exchange occurred:

MR. CORNISH: Number two is I received last
    evening the ITO information from my friend and I really have to have a
    discussion at some point with my client about where we go with that and a
    potential
Garofoli
application because theres some mixed.

THE COURT: A
Garofoli
application
    will not be happening, Mr. Cornish, you are way past the time to do that. Im
    not going to have that as part of the trial. It shouldve been done weeks
    before.

MR. CORNISH: But, the problem with that is I
    didnt have the information to

THE COURT: You didnt have the information
    because you asked for it as late as you did. Thats my ruling. There will not
    be a
Garofoli

application.

(3)

Addressing the Traffic-Stop Search

[45]

The next morning, April 30, 2015, Sgt. Foxton,
    who searched Mr. Wall during the traffic-stop search, was called as a witness.
    When defence counsel asked questions about the search, the trial judge said, Mr.
    Cornish, is there an issue as to the legality of the stop? Im just wondering
    why were going into this. Is there an issue about the legality of the stop?
    Defence counsel responded, That in itself is not  not of issue but he
    explained that he wanted to touch on the narrative or backdrop. The trial
    judge asked what the issue was, and defence counsel replied:

Well, I said yesterday, I wasnt contemplating
    that this stop would be the subject of any
Charter

right
    argument, and it may well be that there are some issues in play that I just
    simply want on the record. I want to have that evidence

[46]

When the trial judge pressed the matter,
    pointing out that he had not filed a
Charter

application on
    that issue, defence counsel said: Well, its a
Charter
-based issue on
    when there is a conversion from  at some point apparently from a potential
    liquor licence issue to something more than that.

[47]

When asked whose rights were being breached in
    the vehicle stop in which Mr. Wall was the driver, he said, [t]he occupants,
    [f]or the same reasons that the Court of Appeal articulated in
Belnavis
.
[1]
The trial judge replied:

I dont agree with you. Your
Charter

application does not refer to this, as far as I know And thats the
    Crowns objection to my entertaining the
Charter

argument,
    because you have not identified what the issues are. So perhaps you can just
    narrow for me how you propose to argue that theres a
Charter

breach
    for Mr. Greer.

[48]

Defence counsel said that he would determine
    whether this officers evidence is consistent or not consistent with the
    evidence of Constable Smith and then examining the totality of the evidence. The
    trial judge challenged this submission, commenting that consistency or
    inconsistency would not help in establishing a breach. Defence counsel replied,
    until we know what the evidentiary basis is in the trial we  we certainly 
    we cant know. The trial judge directed defence counsel to move on.

(4)

The Second Notice of Application is Served and Filed

[49]

On the third day of trial, April 29, 2015,
    defence counsel raised the issue of the status of the Notice of Application
    under the
Charter

that he had filed: [I]f were not dealing
    with the
Garofoli

application, there still is the s. 8  there
    still - or the
Charter

application issues and it might be....
    The trial judge interjected and postponed discussion of the s. 8 application because
    there was a witness in the box.

[50]

The trial judge revisited the matter the next
    day, April 30, 2015, the fourth day of trial, shortly after Sgt. Foxton testified.
    Defence counsel made clear that he had instructions to leave the s.8 challenge
    in play.

[51]

In response, the trial Crown reaffirmed its
    request that the application be summarily dismissed, claiming that it was
    prejudiced by the lack of factual detail in the boiler-plate application. The trial
    Crown submitted, in the alternative, that if it was to receive an amended
    application, the
Charter

application could proceed in a blended
voir

dire
with witnesses being recalled, if necessary.

[52]

In the course of his submissions, defence
    counsel agreed that the issue relating to the traffic-stop search that he had
    raised that morning had not been implied in what he was dealing with in the
    Notice of Application that he had filed. He agreed to amend the Notice of
    Application but protested that the original Notice of Application complied with
    the rules.

[53]

The trial judge disagreed, commenting that the
    Notice of Application was filed late and failed to identify the searches that
    were being challenged or set out the factual foundations for any
Charter

breaches. She decided not to dismiss the
Charter

application
    because doing so would prejudice Mr. Greer. Instead, she granted defence
    counsel a recess so that he could prepare a proper Notice of Application.

[54]

Consistent with the first Notice of Application,
    the amended or Second Notice of Application identified challenges only to the
    three search warrants.

(5)

The Second Notice of Application and the Backpack
    Search

[55]

Since it raised only search warrant challenges,
    the second Notice of Application did not give notice of a challenge to the backpack
    search. The sole allusion to that search, in para. 7(j), addressed the contents
    of the ITO. It read: The only information connecting Greer to possession of
    stolen property on September 3, 2014 was two knives located in a backpack lying
    on the road.

(6)

The Standing Ruling Relating to the Search of
    the Intrepid and Evidence of the Airwalk Shoes

[56]

At the end of the fourth day of trial, the trial
    Crown called Cst. Lucier to testify to the discovery of the Airwalk shoes
    during the consent search of Ms. Symes car. Defence counsel objected, saying
    that there would need to be a
voir

dire
into the
    validity of the consent search. The trial judge responded, The only person who
    has standing to make that argument is Ms. Symes. Defence counsel responded, Youve
    heard that they have use of that vehicle together. So, for the Court simply to
    summarily say theres no standing whatsoever for Mr. Greer to advance an
    argument on that basis I would differ with. The trial judge replied:

I know you differ with me and Ive made the
    ruling. Mr. Greer has no standing to raise a
Charter

argument
    about a consent signed by Ms. Symes on a vehicle that, all the evidence Ive
    heard so far, is her property, she is the owner. Thats the ruling.

[57]

The trial judge then admitted into evidence the
    testimony of Cst. Lucier that on September 4, 2014, he seized black, size 10,
    Airwalk shoes from the trunk of the Intrepid. Cst. Lucier said he seized them
    because he believed the tread on the shoes was similar to a footprint that he
    had seen on the gunroom door at the scene of the Van Meeteren break-in.

[58]

Evidence had been presented during the trial
    linking Mr. Greer to the trunk of the Intrepid. Specifically, the surveillance
    evidence included testimony that on August 20, 2014, Mr. Greer had been
    observed rearranging items in the trunk. He was observed wearing flip flops at
    the time and handling a pair of work boots. There was also evidence that, on
    August 22, 2014, the police were dispatched to a verbal argument on Bruce Road.
    When they arrived, they found the Intrepid unoccupied, with property scattered
    on the roadway nearby. When Cst. James picked up one of the bags, Mr. Greer
    came out of the nearby bushes, insisting that the officers not go through his
    property. Further, there was evidence that on September 3, 2014, Cst. Boudreau
    once again observed Mr. Greer rearranging items in the trunk of the Intrepid.

[59]

Cst. Jeffrey Myatt offered testimony as a
    forensic identification officer with expertise in footwear examination. Some of
    the footprints found at the scene of the Van Meeteren break-in bore
    similarities in size, design and physical shape to the Airwalk shoes seized by
    Cst. Lucier. However, only one tread pattern, located in the laundry room,
    could be associated to those shoes through two randomly acquired
    characteristics shared between the impression and one of the shoes. During his
    examination of the evidence gathered at the crime scene, Cst. Myatt determined
    that the tread pattern on the gunroom door was not from the seized Airwalk
    shoes and had in fact been made by another brand of shoe.

C.

THE Reasons for JUDGMENT

[60]

After receiving written submissions, in her Reasons
    for Judgment the trial judge addressed both the
Charter

challenge
    to the search warrants and the verdicts to be rendered in the case.

(1)

The Section
    8
Charter

Ruling

[61]

The trial judge denied Mr. Greers
Charter

challenge to the search warrants. She found the information from the unproven,
    untested CI was corroborated by other information, yielding reasonable and
    probable grounds.

[62]

In the course of making that ruling, the trial
    judge referred specifically to the property stolen in the break-in found in [Mr.
    Greers] possession on July the 22
nd
, when the traffic-stop search
    occurred. Since she had already said she could not find that Mr. Greer knew
    about or was in constructive possession of the gun magazine clip that was
    discovered in Mr. Walls pocket, when she spoke of the stolen property found in
    Mr. Greers possession she can be taken as referring to the ammunition found in
    Mr. Greers backpack and on his person. The trial judge said that Mr. Van Meeteren
    had identified this ammunition as having been stolen from his home during the
    break-in. The parties agree that this overstates Mr. Van Meeterens position.
    He could say only that the ammunition was similar to ammunition taken during
    the break-in.

[63]

The trial judge did not specifically identify
    any other information that corroborated the CI, but in narrating the material
    evidence in the case she had described the knives or bayonets that were found
    during the backpack search. She found Mr. Greer to have been in personal
    possession of those items and found that they were from the break-in.

[64]

In his written submissions at the end of the
    trial, defence counsel had again identified shortcomings in the proof of Ms.
    Symes consent to search the Intrepid. Despite having already ruled that Mr.
    Greer could not challenge the consent search, the trial judge reaffirmed in her
    Reasons for Judgment that only Ms. Symes had standing to dispute the legality
    of the search of her vehicle.

[65]

The section 8 challenges were dismissed.

(2)

The Verdicts

[66]

In the course of her Reasons for Judgment, the
    trial judge explained her findings that Mr. Greer had constructive possession
    of the stolen property found in the tents and the storage units during the
    execution of the search warrants. She also linked Mr. Greer to the stolen goods
    found in the Intrepid:

Mr. Greer was in constructive possession of
    the property found in the tents and the two storage units and the Intrepid. He
    knew that property was there, he had access to the property, he appeared to be
    dealing with the property inside the Intrepid on a number of occasions when
    observed by police, and he exercised control over the Intrepid when telling the
    police not to touch his property.

[67]

After describing how the police had observed
    both Ms. Symes and Mr. Greer rearranging the contents of the trunk of the
    Intrepid and removing, repacking, and returning items to the trunk, she said:

There was no evidence that anyone else
    accessed the trunk for the Intrepid The reasonable inference that can be drawn
    is that Michael Greer had property in the vehicle and was in constructive
    possession of the property and was exercising control over it.

[68]

She applied similar reasoning in concluding that
    the Airwalk shoes found in the trunk of the Intrepid belonged to Mr. Greer. She
    said: The surveillance observed the accused moving and arranging items in the
    trunk, and after that no one gained access to the trunk. She reasoned further
    that the Airwalks, sized 12, would clearly not be worn by a female, Theresa
    Symes, judging by her respective height, as I saw on the video and as observed
    in the photos of surveillance. In fact, the evidence was that the Airwalk
    shoes were size 10, not 12.

[69]

Based on her finding of possession by Mr. Greer
    of the Airwalk shoes, the evidence linking the Airwalk shoes to the crime
    scene, and Mr. Greers recent possession of stolen property from the break-in,
    the trial judge said, [T]he court can draw an inference he was involved in the
    break and enter when the property was stolen. She therefore found him guilty
    as a primary offender, or as a party to a break and enter and the theft of
    firearms. Based on this finding, she convicted Mr. Greer of the charge of break
    and enter and theft of firearms, contrary to s. 98(1)(b) of the
Criminal

Code
, and the charge of break and enter a dwelling house and
    commit theft over $5000, contrary to s. 348(1)(b) of the
Criminal Code
.

[70]

The trial judge also found Mr. Greer guilty of eight
    separate counts of possession of stolen property, contrary to s. 354(1) of the
Criminal
    Code
, relating to items discovered in his possession during the backpack
    search, the search of the Intrepid and the search warrant searches. Finally,
    she convicted Mr. Greer of one count of possession of ammunition, contrary to
    s. 96(1) of the
Criminal Code
; and two counts of possessing ammunition
    while prohibited from doing so, contrary to s.117.01(1) of the
Criminal

Code
.

[71]

The foregoing convictions are being appealed. Mr.
    Greer was also convicted during the trial of other offences that are not before
    me.

THE ISSUES ON
    APPEAL

[72]

I would state the issues addressed by Mr. Greer in
    his oral and written appeal arguments as follows, and I would approach them in
    the following order:

A.

Did the trial judge err in ruling that Mr.
    Greer did not having standing to challenge the search of the Intrepid?

B.

Did the trial judge unfairly resolve Mr. Greers
    s. 8
Charter

challenges, thereby causing a miscarriage of
    justice?

C.

Did the trial judge err in finding reasonable
    and probable grounds for the search warrants?

D.

Did the trial judge err in finding that the
    Airwalk shoes belonged to Mr. Greer?

[73]

Only the second and last of these grounds of
    appeal were pressed during oral submissions, but as grounds A and C have not
    been abandoned, I will address them briefly.

[74]

Mr. Greer also appealed his 55-month sentence,
    but this sentence appeal was abandoned and so will be dismissed as abandoned.

ANALYSIS

A.

DID THE TRIAL JUDGE ERR IN RULING THAT MR. GREER
    DID NOT HAVE STANDING TO CHALLENGE THE SEARCH OF THE CHRYSLER INTREPID?

[75]

Appeal counsel argues that the trial judge acted
    unfairly in deciding that Mr. Greer did not have standing to challenge the
    constitutional validity of the warrantless consent search of the Intrepid. I
    will address that argument below.

[76]

He also advances the ground of appeal now under
    consideration, that, whether arrived at fairly or not, the trial judges
    finding that Mr. Greer lacked standing to challenge the search of the Intrepid was
    simply wrong. Based on the trial record, and without advancing a fresh evidence
    application, he argues that Mr. Greer should have been found to have standing
    to challenge this search because he had a reasonable expectation of privacy in
    the Intrepid.

[77]

On appeal, Mr. Greer adds an alternative, second
    standing argument not advanced at trial. Namely, that even if the consent
    search could not be successfully challenged, the trial judge erred by not
    recognizing his standing to challenge the seizure of the Airwalk shoes from the
    Intrepid.

(1)

Standing
    and the Consent Search

[78]

Even when challenging a warrantless search of a
    place, the party claiming the
Charter

violation bears the
    burden of establishing their standing to do so by demonstrating that, in the
    totality of the circumstances, they had a reasonable expectation of privacy in
    the place that was searched:
R. v. Edwards
, [1996] 1 S.C.R. 128. I
    agree with the Crown that, on the evidence at trial, Mr. Greer simply cannot
    succeed in demonstrating a reasonable expectation of privacy in Ms. Symes car.

[79]

Seven non-exclusive factors will typically
    inform such a decision, including: (i) presence at the time of the search; (ii)
    possession or control of the property or place searched; (iii) ownership of the
    property or place; (iv) historical use of the property or item; (v) the ability
    to regulate access, including the right to admit or exclude others from that
    place; (vi) the existence of a subjective expectation of privacy; and (vii) the
    objective reasonableness of the expectation:
Edwards
, at para. 45;
Belnavis
,
    at para. 20. When these factors are considered, it is evident that Mr. Greer
    did not have a reasonable expectation of privacy that could support a
Charter

challenge to the search of the Intrepid.

[80]

Mr. Greer was not present when the consent
    search occurred. That search had no impact on his person, or his liberty.

[81]

Mr. Greer did not own the vehicle. Ms. Symes
    did. He therefore had no legal authority to regulate access to the vehicle.

[82]

Nor was there evidence that he had any
de
    facto
authority to do so. He was never observed operating the vehicle; Ms.
    Symes would do so, and he would be a passenger. When he accessed the vehicle,
    she was either immediately present or nearby.

[83]

Mr. Greer attempts to demonstrate his
de

facto

authority over the vehicle by relying on an incident that
    occurred on August 22, 2014, after Csts. Lucier and James were dispatched to a
    verbal argument on Bruce Road in Huron-Kinloss Township. When they responded,
    the officers came upon Ms. Symes unoccupied Intrepid. Property was strewn on the
    roadway and in a nearby cornfield. When Cst. James picked up one of the bags
    near the vehicle, Mr. Greer emerged from the bushes and directed Cst. James not
    to go through his property. With respect to this incident, I agree with the
    Crown. This was not an illustration of Mr. Greer regulating access to the car.
    He was instead regulating access to his property which was outside of the car.
    Indeed, this incident is a counter-example to his having
de

facto

authority over the car. The most reasonable inference is that during an
    argument Mr. Greers property was ejected from the vehicle by its owner, Ms.
    Symes, who was also present.

[84]

To be sure, the Crown is not in a position to
    deny entirely that Mr. Greer exercised any control over the Intrepid. In
R.
    v. Jones
, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 32, the Supreme Court
    of Canada ruled that, a s.8 applicant may ask the court to assume as true for
    s. 8 purposes any fact that the Crown has alleged or will allege in the
    prosecution against him. In its written argument, after identifying the two
    campsites, the two storage units, and the gold Chrysler Intrepid belonging to
    Teresa Ann Symes, the Crown alleged that Mr. Greer had strong ties to each of
    these locations, in that he was in possession of property at each of those
    locations and had control over each of those locations.

[85]

To be clear, permitting the accused to rely on
    the Crowns position to support its standing argument does not create automatic
    standing. As Harvison Young J.A. explained in
R. v. Labelle
, 2019 ONCA
    557, 379 C.C.C. (3d) 270, at para. 31:

The point of
Jones

is that the
    accused can rely on the Crown theory to establish certain facts relevant to
    their s. 8 claim. The trial judge is still required to assess those facts
    in the totality of the circumstances to determine whether the accused had a
    reasonable expectation of privacy in a particular territorial space. [Citations
    omitted.]

[86]

As indicated, the Crown theory included the
    claim that Mr. Greer had control over the Intrepid. The significance that
    should be attributed to the Crowns position that Mr. Greer had control over the
    Intrepid can be gleaned by examining the objective evidentiary basis for the
    control alleged by the Crown. It amounts to this: throughout the relevant period,
    Mr. Greer, who was in a relationship with Ms. Symes and cohabiting with her,
    used and accessed her car to store his belongings.

[87]

Even bearing this degree of control in mind, and
    assuming Mr. Greer had a subjective belief that his belongings would remain
    protected and private while in the Intrepid, the trial judges conclusion that Mr.
    Greer did not have standing to challenge the search of the vehicle was
    inevitable. While Mr. Greer exercised control of the vehicle by using it to
    store his goods, there is no evidence that his control of the vehicle was
    independent of Ms. Symes control. As indicated, the only reasonable inference that
    the August 22, 2014 incident yields is that Mr. Greers ability to hold his
    property in the vehicle depended on permission from Ms. Symes. If Mr. Edwards,
    who had his own key to his girlfriends apartment and kept belongings there,
    did not have a reasonable expectation of privacy in his girlfriends apartment,
    Mr. Greers weaker claim to a reasonable expectation of privacy in Ms. Symes
    car must fail: see
Edwards
, at paras. 48-49.

[88]

There is no contradiction between this outcome
    and the trial judges finding that the Airwalk shoes found in the car were Mr.
    Greers. As the decisions in
Edwards

and
Belnavis

illustrate,
    a person can have possessions in a place in which they do not have a reasonable
    expectation of privacy. Nor is this outcome inconsistent with the trial judges
    finding that Mr. Greer possessed the stolen goods found in Ms. Symes car. As I
    will explain below, this finding was based on circumstantial evidence linking
    him to the Airwalk shoes. The trial judge did not err in her conclusion that
    Mr. Greer did not have standing to challenge the validity of the search of Ms.
    Symes car.

(2)

Standing and the Seizure of the Airwalk Shoes

[89]

I will now address Mr. Greers supplementary
    argument, made for the first time on appeal, that he had standing to challenge
    the seizure of the Airwalk shoes and that the trial judge erred by not
    recognizing this. He seeks that standing in order to argue that even if Ms.
    Symes had provided valid consent to search the vehicle, she did not have
    authority to consent to the seizure of the Airwalk shoes, and that reasonable
    and probable grounds for the seizure of the Airwalk shoes were lacking.

[90]

Mr. Greer has not sought leave to raise this new
    standing issue on appeal. Even if he had sought leave to do so, I would not
    have granted it.

[91]

The customary articulation of the test for
    granting leave to raise a new issue on appeal states that leave may be granted
    where: (1) the evidentiary record [is] sufficient to permit the appellate
    court to fully, effectively and fairly determine the issue raised on appeal;
    (2) the failure to raise the issue at trial [is not] due to tactical reasons;
    and (3) the court [is] satisfied that no miscarriage of justice will result
    from the refusal to raise the new issue on appeal:
R. v. Reid
, 2016
    ONCA 524, 132 O.R. (3d) 26, at para. 43, leave to appeal refused, [2016]
    S.C.C.A. No. 432;
R. v. Brown
, [1993] 2 S.C.R. 918, at p. 927. I take
    this last consideration to be misstated. Logically, the fact that no
    miscarriage of justice will result from the refusal to raise the new issue on
    appeal is a reason not to grant leave, not a reason for doing so. In my view,
    if (1) the evidentiary record is sufficient to permit the appellate court to
    fully, effectively, and fairly determine the issue raised on appeal, and (2) the
    failure to raise the issue at trial was not due to tactical reasons, then leave
    should be granted where (3) refusing leave may result in a miscarriage of
    justice. On the other hand, if refusing leave would not cause a miscarriage of
    justice, leave to raise a new issue on appeal should ordinarily be denied.

[92]

One final, relevant consideration. Where the new
    issue arises from a change in the law while the case is still in the system,
    leave may be granted to present an evidentiary record on appeal:
R. v. J.D
.
,
    2018 ONCA 947, 367 C.C.C. (3d) 403.

[93]

After considering these factors, I find that it
    is not in the interests of justice to grant leave to raise the new standing
    argument on appeal. I am mindful that Mr. Greers trial occurred before
Jones

was decided. Prior to
Jones
,
it would have been tactically unwise for Mr. Greer to claim ownership of the
    Airwalk shoes so that he could claim a privacy interest in those shoes to
    establish standing to challenge their seizure:
Jones
, at paras. 18,
    22-24. Notwithstanding this, had Mr. Greer brought a leave application, I
    would deny it because the new
Charter

challenges that Mr. Greer
    claims to have standing to bring would not have succeeded had they been brought
    at trial.

[94]

First, Mr. Greers keystone legal proposition
    that the warrantless search of the Chrysler Intrepid could not be justified
    based on Symes third party consent misses the mark. To be sure, there is a
    longstanding principle that a third party cannot validly consent to a search
    or otherwise waive a constitutional protection on behalf of another:
R. v.
    Cole
, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 79. However, the police
    did not rely on Ms. Symes consent to seize the Airwalk shoes. They relied on
    her consent to be lawfully present in her car without a warrant. Once lawfully
    in that place, the authority to seize the Airwalk shoes derives from s. 489(2)(b)
    of the
Criminal

Code
,

which authorizes the
    police to seize any thing without warrant that they have reasonable grounds to
    believe has been used in the commission of an offence.

[95]

Nor would Mr. Greers supplementary claim that
    Cst. Lucier lacked reasonable grounds to seize the Airwalk shoes have succeeded,
    had this argument been advanced at trial. This is known because the credibility
    and reliability of Cst. Luciers testimony relating to how he came to seize the
    Airwalk shoes was litigated fully during the trial proper, on the question of
    whether the Airwalk shoes could be linked to Mr. Greer.

[96]

In his testimony, which the trial judge chose to
    believe, Cst. Lucier said that he made a connection between the Airwalk shoes
    and the imprint on the gunroom door. She was not dissuaded in accepting this
    testimony by the fact that Cst. Lucier produced police notes at the last minute
    to support this evidence, or by the fact that those notes did not record that
    he had observed similarities between the footprint and the Airwalk shoes.

[97]

Nor did she accept the submission that Cst.
    Luciers evidence was discredited by Cst. Myatts expert testimony that the
    imprint on the gunroom door was in fact made by a different make of shoe. The
    trial judge found, based on testimony that Cst. Myatt gave, that [it] took an
    expert analyst to do a professional comparison to determine that the Airwalks
    had not made that footwear print on the gunroom door. Clearly, it was the
    trial judges conclusion that Cst. Lucier had an honest, reasonable mistaken
    belief that the Airwalk shoes likely made the print on the gunroom door.

[98]

Given her findings, which the trial judge was
    entitled to make, and the uncontested evidence that Cst. Lucier knew of Mr. Greers
    recent connection to the vehicle and that he kept possessions inside the
    vehicle, it is obvious that had Mr. Greer brought a challenge at trial to the
    seizure of the Airwalk shoes, that challenge would have failed. It is simply
    not in the interests of justice to permit Mr. Greer to raise a standing
    argument for the first time on appeal, in order to make a
Charter

argument
    that would have failed had it been brought at trial.

[99]

I would therefore deny Mr. Greers ground of
    appeal that the trial judge erred in denying him standing relating to the search
    of the Intrepid.

B.

DID THE TRIAL JUDGE UNFAIRLY RESOLVE MR. GREERS
    SECTION 8
CHARTER
CHALLENGES, THEREBY CAUSING A MISCARRIAGE OF JUSTICE?

[100]

Mr. Greer contends that the trial judges approach to the s. 8
Charter

challenge rendered the trial unfair. This is a ground of appeal advanced
    under s. 686(1)(a)(iii) of the
Criminal Code
. As such, even if the
    trial judge did not act fairly in the approach that she took, this ground of
    appeal cannot succeed unless a miscarriage of justice has occurred. As I will
    explain, I accept that the trial judge did not act fairly in some of the
    rulings that she made. However, I am persuaded that, despite this, no
    miscarriage of justice occurred.

[101]

Appeal counsels submissions focused most intently on the trial
    judges treatment of the traffic-stop search, and the search of the Intrepid.
    Issue was also taken with the trial judges treatment of the backpack search,
    but the trial judges treatment of this search was given less emphasis in
    argument. Although not raised in his factum, in oral argument Mr. Greer also
    addressed the trial judges
Garofoli

ruling. In each case, the
    heart of Mr. Greers complaint is that the trial judge failed, unfairly, to
    consider any of these issues on their merits.

[102]

Context is particularly important in evaluating this ground of
    appeal, and a salient contextual consideration is that Mr. Greer failed to give
    notice, as required by the rules, of any of the
Charter

challenges
    he relies on in this ground of appeal.

[103]

Mr. Greers appeal counsel attempted to dull the impact of Mr.
    Greers failure to give notice by pointing out that notice was given to
    challenge the search warrants, the grounds for which were predicated on the
    warrantless searches he now seeks to challenge. If, with this submission,
    appeal counsel is suggesting that when notice is given that search warrants are
    being challenged, this constitutes notice that warrantless searches that produced
    information relied upon to secure those search warrants will also be challenged,
    I would disagree.

[104]

The purpose of notice is: (1) to alert the court to impending
Charter

challenges so that trial time can be accurately estimated and pretrial
    applications can be organized and conducted in a focused manner, and (2) to
    enable the Crown to identify the matters in issue so that the Crown can
    effectively prepare for the trial and answer the challenges made:
R. v.
    Tash
(2008), 166 C.R.R. (2d) 358 (Ont.
    C.A.),
at para. 15;
R. v. Kutynec
(1992), 70 C.C.C. (3d)
    289 (Ont. C.A.), at pp. 297, 301-2. Only explicit notice of
Charter

challenges can serve these dual objectives. Permitting notice by implication
    would defeat them. If an accused intends to challenge preliminary searches that
    produced information used to support a challenged search warrant, the accused
    must say so in their Notice of Application. If they have not done so, as here, then
    notice was not provided.

[105]

If appeal counsel was simply making the more modest suggestion that,
    in this case, the Crown could not have been prejudiced because the Crown must have
    understood that by challenging the search warrants, Mr. Greer would also be
    challenging the underlying warrantless searches, I again disagree. If anything,
    where a Notice of Application expressly includes only search warrant
    challenges, the most likely inference is that those will be the only challenges
    brought.

[106]

I will turn to the relevant legal principles that govern fair
    procedure in the summary dismissal of
Charter

motions,
    including where that dismissal is for the failure to give notice.

(1)

The Legal
    Principles

[107]

In her treatment of some of the issues raised by Mr. Greer during
    trial, the trial judge relied on defence counsels non-compliance with the
    notice requirements under the rules. For others, she relied on what she
    perceived to be a patent lack of merit in positions taken by defence counsel.

[108]

A trial judge is permitted, in the exercise of their trial
    management powers, to summarily dismiss
Charter

motions on both
    these bases. Absent special circumstances, such as those described in
R. v.
    Sabir
, 2018 ONCA 912, 143 O.R. (3d) 465, at para. 32, trial judges may
    decline to entertain a motion where no notice, or inadequate notice, of the
    motion has been given to the other side:
R. v. Loveman
(1992), 71
    C.C.C. (3d) 123 (Ont. C.A.), at p. 125. Similarly, trial judges may refuse to
    hear
Charter

motions that have no reasonable prospect of
    success or may terminate motions when it becomes evident that they are
    frivolous:
R. v. Cody
, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 38. A
    decision by a trial judge to summarily dismiss a motion on either basis is
    ordinarily entitled to deference:
R. v. Blom
(2002), 167 C.C.C. (3d)
    332 (Ont. C.A.), at para. 28;
R. v.
Kazman
, 2020 ONCA 22, 452
    C.R.R. (2d) 185, at para. 16, leave to appeal refused, [2020] S.C.C.A. No. 58.

[109]

Deference will not be due, however, if the trial judge conducted a
    hearing that was so unfair as to result in a miscarriage of justice. Just as a
    fair trial guarantees the accused basic procedural fairness (
R. v. Harrer
,
    [1995] 3 S.C.R. 562, at para. 45) so too does a fair
Charter

challenge.
    The demands of procedural fairness depend entirely on context:
R. v.
    Rodgers
, 2006 SCC 15, [2006] 1 S.C.R. 554, at para. 47. Two of the
    requirements of procedural fairness that arise in the context of the summary
    dismissal of
Charter

motions are relevant to this appeal.

[110]

First, the accused must be given an opportunity to make submissions
    before summary dismissal occurs. As a trite, general proposition, the right to
    make submissions before a ruling is an essential component of the principle of
audi
    alteram partem
(that parties have the
    right to be heard):
R. v. DAllesandro
, 2018 BCCA 118, 359
    C.C.C. (3d) 350, at paras. 17-20. The right to make submissions is also a
    central component of the right to make a full answer and defence:
R. v.
    Aucoin
, [1979] 1 S.C.R. 554. The trial management authority to dismiss
Charter

motions summarily will not be exercised fairly if this authority is used without
    first permitting submissions from the accused as to whether summary dismissal
    is warranted. When Rosenberg J.A. provided his influential instruction on the general
    trial management power in
R. v. Felderhof
(2003), 180 C.C.C. (3d) 498
    (Ont.), at para. 40, he said:

It would undermine the administration of
    justice if a trial judge had no power to intervene at an appropriate time and,
    like this trial judge,
after hearing submissions
,
    make directions necessary to ensure that the trial proceeds in an orderly
    manner. [Emphasis added.]

[111]

Where a trial judge is considering summary dismissal without an
    evidentiary inquiry because a
Charter

claim appears to be
    meritless, the trial judge should ensure that the defence is aware of this and
    is able to summarize the anticipated evidentiary basis for its claim so that
    the trial judge has the information required
: Kutynec
,

at p. 301;
R. v. Papasotiriou-Lanteigne
, 2017 ONSC 5337, 390 C.R.R. (2d) 222, at
    paras. 22-23. This includes providing the accused with an opportunity to argue
    against summary dismissal.

[112]

Submissions are no less critical where summary dismissal is based on
    non-compliance with the rules. Before summarily dismissing a
Charter

claim because of non-compliance with the rules, trial judges are required
    to consider all relevant circumstances:
Blom
, at para. 22. This
    includes the
Charter

argument sought to be advanced, prejudice
    to the opposing party, and the impact that permitting the motion to proceed
    would have on the trial process:
Loveman
, at p. 127;
Tash
, at
    para. 15(7). Explanations for non-compliance with the rules may also be of
    importance. For the decision to be made fairly, a trial judge will therefore need
    to ensure that trial counsel is alerted that summary dismissal is being considered
    and is given an opportunity to provide material information and submissions so
    that the trial judge can finally and fairly determine whether summary dismissal
    is in fact appropriate.

[113]

To be clear, I am not suggesting that a full evidentiary hearing
    needs to be conducted to determine whether to conduct an evidentiary hearing. The
    issue should first be addressed by oral submissions, but some evidence may
    prove to be necessary before a full
voir

dire

is
    dispensed with:
R. v. Vukelich
(1996)
,
    108 C.C.C. (3d) 193 (B.C.C.A.), at paras. 17-23. In receiving such submissions,
    a trial judge is also entitled to ensure that the submissions are relevant,
    focused, and efficient.

[114]

The second relevant requirement of procedural fairness is the trial
    judges obligation to explain why a
Charter

motion is being summarily
    dismissed, if that is the decision that is made. For example, the decision of
    the trial judge to summarily dismiss a s. 11(b) application was overturned in
R.
    v. Imola
, 2019 ONCA 556, 439 C.R.R. (2d) 352, after the trial judge failed
    to give sufficient reasons for the summary dismissal that occurred. In
R.
    v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 44-45, Binnie J.
    made clear that the duty to give reasons applies to
Charter

rulings.
    This duty must necessarily apply, as well, to rulings that dispense with the
    need for a full
Charter voir dire
. The sufficiency of reasons is therefore
    a relevant consideration in determining whether procedural fairness has been
    achieved in the summary dismissal of a
Charter

motion.

[115]

Having expressed the principles that I will be relying upon, I will
    examine, in turn, the trial judges treatment of the issues raised by Mr. Greer
    on appeal. It is convenient to begin with the backpack search.

(2)

The Backpack Search

[116]

The trial judge did not act unfairly in addressing
Charter

issues relating to the backpack search for the simple reason that no such
    issues were raised. As indicated, no challenge was made to this search in
    either Notice of Application, and at no time did Mr. Greer rely on the
Charter

to contest the admissibility of the evidence found during this search.
    Indeed, in his second Notice of Application, Mr. Greer proceeded on the basis
    that the knives or bayonets that were discovered during this search could be
    considered in assessing whether there were reasonable and probable grounds for
    the search warrants.

[117]

The fairness of the trial judges treatment of this warrantless
    search is only challenged in Mr. Greers contention that the trial judge failed
    in her obligation to consider whether the Crown had discharged its burden of
    rebutting the presumptive unreasonableness of the three warrantless searches.
    This submission must be rejected because the Crown had no such obligation
    relating to the backpack search. The Crown burden to demonstrate the
    reasonableness of a warrantless search arises only if that search is in issue
    in the case, and the constitutional validity of the backpack search had not
    been made an issue in this case.

[118]

I can find no unfairness on the trial judges part relating to this
    issue and I would reject appeal counsels attempt to cast doubt on the
    constitutional validity of this search for the first time on appeal.

(3)

The Traffic-Stop Search

[119]

Nor did the trial judge act unfairly with respect to the traffic-stop
    search, again for the simple reason that Mr. Greer never advanced a
Charter

application relating to this search. The most that can be said is that
    defence counsel wanted to explore during his cross-examination whether there
    might be a basis for a
Charter

challenge. I will explain.

[120]

Once again, defence counsel did not bring an application to
    challenge the constitutional validity of this search. As a result, the trial
    judge appropriately confronted defence counsel with the relevance of his attempted
    cross-examination of Sgt. Foxton about the search. When she did so, defence
    counsel affirmed that he was not taking issue with the search but said that he wanted
    the evidence as narrative or backdrop. He then said that although he had
    not initially contemplated that the stop would be the subject of any
Charter

right argument, it may well be that there are some issues in play
    relating to whether the search went beyond a liquor licence search, but he
    could not know until we know what the evidentiary basis is in the trial. He
    grounded the possibility of a potential
Charter

issue in
    whether the evidence of the two officers was consistent, without attempting to
    explain to the trial judge how inconsistent evidence might assist in
    establishing a
Charter

breach.

[121]

In these circumstances, the trial judge was entitled to simply
    direct defence counsel to move along. Absent special circumstances, a trial provides
    an opportunity to bring
Charter

challenges, not an opportunity
    to explore whether there may have been
Charter

breaches.

[122]

I recognize that during the colloquy, the trial judge, without
    inviting full submissions, precipitously expressed her opinion that Mr. Greer
    had no standing to bring a
Charter

challenge to the traffic-stop
    search. Given that the constitutional validity of that search was not before
    her, this had no impact on the fairness of her treatment of Mr. Greers
Charter

application so I will say no more of it.

[123]

However, on two occasions, the trial judge did make similar,
    precipitous rulings prohibiting
Charter

applications without
    notifying counsel in advance of her intention to do so, and without inviting
    full submissions. These incidents, relating to the
Garofoli

application
    and the search of the Intrepid, are more concerning.

(4)

The
Garofoli

Application Issue

[124]

In my view, the trial judge did not act fairly in ruling that she
    would not entertain a
Garofoli

application if defence counsel was
    to attempt to bring one.

[125]

A
Garofoli

application is ordinarily brought prior
    to trial to secure leave of the court to cross-examine the affiant of a search
    warrant ITO in order to determine whether the ITO affiant made full, frank, and
    accurate disclosure of the material facts to the issuing justice:
R. v.
    Garofoli
, [1990] 2 S.C.R. 1421;
R. v. Pires; R. v. Lising
, 2005 SCC
    66, [2005] 3 S.C.R. 343. Where it is shown through cross-examination that full
    and frank disclosure has not been made, the ITO will be amended before the
    sufficiency of the grounds for issuing the warrant is reviewed. The amendment
    of the ITO may undermine the grounds for the warrant, leading to the warrant
    being quashed:
R. v. Phan
, 2020 ONCA 298, 387 C.C.C. (3d) 383, at
    para. 53;
R. v. Booth
, 2019 ONCA 970, 386 C.C.C. (3d) 281, at para. 101.

[126]

Amendment can be achieved through excision or amplification. Excision
    occurs when information shown to be inaccurate is simply deleted from the ITO. In
    contrast, as stated in
Booth
, at para. 59: Amplification entails
    adding information that should have been disclosed in order to give an accurate
    picture or replacing mistakenly inaccurate information with accurate
    information:
Booth
, at para. 59. Not all inaccurate information can
    be corrected by amplification. Information should not be added where it could
    advance the warrant application unless the error in not making full and frank
    disclosure is: (1) a minor technical error; and (2) made in good faith:
Booth
,
    at para. 59.

[127]

Given the nature and purpose of permissible cross-examination, it is
    obvious that counsel cannot responsibly bring a
Garofoli

application
    without having examined the ITO. In order to obtain leave to cross-examine in a
Garofoli

application, the accused must show that there is a basis
    for embarking on an enquiry:
Pires
, at para. 10. Specifically, the
    accused must show that there is a reasonable likelihood that cross-examination
    of the affiant will elicit testimony about the accuracy or completeness of the
    information in the ITO that is of probative value on the admissibility of the
    evidence:
Pires
, at paras. 30-31.

[128]

Testimony will have probative value on the admissibility of evidence
    where it could lead to a finding that the search or seizure violated the
Charter
.
    This will occur if the cross-examination leads to the excision or amplification
    of inaccurate or incomplete information in the ITO that could undermine the
    sufficiency of the grounds for issuing the warrant. Alternatively, exposing
    inaccurate or incomplete information through cross-examination may reveal unconstitutional
    misconduct by the affiant to the ITO. This will be so where the affiant has engaged
    in deliberate non-disclosure, bad faith, deliberate deception, fraudulent
    misrepresentation or the like:
R. v. Paryniuk
, 2017 ONCA 87, 134 O.R.
    (3d) 321, at para. 69, leave to appeal refused, [2017] S.C.C.A. No. 81.

[129]

On the third day of trial, the morning after receiving disclosure of
    the ITO, defence counsel advised the trial judge that he was seeking
    instructions from Mr. Greer on a possible
Garofoli

application.

The trial judges response was swift and decisive. Without calling for
    submissions or waiting for an application to be filed, she ruled peremptorily
    that no such application would be permitted.

[130]

The sole reasons the trial judge expressed were that defence counsel
    had waited too long to bring the application, and that defence counsel bore
    responsibility for the delay because he was too late in making his disclosure
    request. Based on earlier relevant exchanges between the trial judge and
    defence counsel, it can fairly be inferred that the trial judge was of the view
    that it was not in the interests of justice to allow a late-breaking
Garofoli

application to interrupt and delay the trial, particularly given defence
    counsels own expressed desire to proceed with the trial without adjournment.

[131]

On its face this decision may seem compelling, but there were
    arguments available to the contrary. In keeping with their obligations
    subsequently expressed in
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R.
    631, at paras. 85-86, the parties had agreed to a prompt trial date only seven weeks
    away from the set date. In those circumstances, allowances for late preparation
    might reasonably be required. Moreover, understood in this context, the request
    for disclosure of the ITO, although made uncomfortably close to the beginning
    of the trial, had been made relatively promptly after the set date. As well, even
    the trial Crown was scrambling to get ready for trial. Disclosure was still
    being made as the trial got underway, and the trial Crown herself had arguably
    not acted with dispatch in responding to the disclosure request. There were
    also outstanding disagreements between defence counsel and the trial judge
    relating to whether it was customary for ITOs to be disclosed as a matter of
    course without specific request, or whether a request for disclosure of search
    warrants should be taken as including a request for disclosure of the ITO used
    to obtain the search warrant. If resolved favourably to the defence after
    argument or evidence, these considerations could well have had a profound
    impact on whether the trial judge should disallow a
Garofoli

application,
    if one was to be brought.

[132]

I do not raise these points to cast doubt on the reasonableness of the
    trial judges decision to refuse to entertain a
Garofoli

application
    if brought in aid of Mr. Greers search warrant challenge, since I need not
    concern myself with the merits of that decision to resolve this ground of
    appeal. I raise these points simply to underscore the unfairness of the trial
    judges decision to make this ruling without inviting or receiving submissions.
    Indeed, when defence counsel attempted to make submissions after the trial
    judge raised the issue of summary dismissal by ruling that [a]
Garofoli
application
    will not be happening, the trial judge cut him off, reaffirming her ruling with
    curt and cursory reasons. I understand that the trial judge was faced with the
    unenviable challenge of moving a serious trial along when it was evident that
    the parties were not fully prepared, and that defence counsel had repeatedly
    been unclear about where the
Charter

issues were heading.
    Still, the trial judge should not have summarily foreclosed the prospect of a
Garofoli

application in this way. In my view, she acted unfairly.

[133]

I am nonetheless satisfied that there has been no miscarriage of
    justice. I do not rest that decision on the fact that, at the time the ruling
    was made, a
Garofoli

application was only a hypothetical
    possibility, although this is a relevant factor. I am persuaded that there has
    been no miscarriage of justice because there is no air of reality to the
    possibility that cross-examination of the ITO affiant could have changed the
    outcome of the
Charter

challenges brought on Mr. Greers
    behalf. Appeal counsel has identified only two areas where alleged inaccuracies
    in the ITO could possibly have led to the cross-examination of the affiant, and
    neither would have mattered.

Those two areas of alleged inaccuracy
    relate to the backpack search.

[134]

Specifically, appeal counsel contends that: (1) the ITO inaccurately
    reported that Det. Cst. Dunn observed the knives or bayonets in the backpack at
    the scene of Mr. Greers motorcycle crash, when it was Cst. Boudreau who had
    done so; and (2) the ITO communicates that Mr. Greer was wearing the backpack
    when the decision to search was made, when in fact Mr. Greer had been seen wearing
    a backpack when he retrieved the motorcycle from the storage unit, and the
    backpack containing the knives or bayonets was found on the ground near the
    crashed motorcycle after the crash.

[135]

I am prepared to accept, for the purpose of analysis, that these are
    inaccuracies in the ITO that would have been exposed had Mr. Greer been
    permitted to cross-examine the affiant. However, I do not accept that exposing
    these inaccuracies could have affected the result or Mr. Greers
Charter
application.

[136]

Appeal counsels first argument to the contrary is that, without the
    inaccurate information that Mr. Greer was wearing the backpack at the time of
    his arrest, the search of the backpack could not be found to be a valid search
    incident to arrest. I am unpersuaded that this is so, but even if true, this could
    not have affected the outcome of Mr. Greers
Charter

claims,
    given that he did not bring a
Charter

challenge to the backpack
    search. In these circumstances, even if a
Garofoli

application would
    have undercut support for a finding that the backpack search was a legal search
    incidental to arrest, nothing would have changed.

[137]

Nor could the exposure, through cross-examination, of the discrepancies
    that appeal counsel identifies have had any impact on the outcome of the search
    warrant challenges that Mr. Greer did bring. This is not a case where the
    inaccurate information would have been excised if it had been exposed during a
Garofoli
application, thereby leaving the ITO without reference either to the
    discovery of the knifes or bayonets, or to Mr. Greers possession of the
    backpack. Instead, amplification would have been ordered, replacing the
    inaccurate information with accurate information.

[138]

This can be said with confidence because there is no realistic basis
    for believing that the inaccuracies were anything but good faith, technical
    errors. The affiant had nothing to gain by withholding the accurate information
    and offering the inaccurate information. The strength of the search warrant application
    remains unchanged regardless of which officer discovered the knives or bayonets
    in the backpack. And it makes no material difference to the grounds for the
    warrant whether Mr. Greer was wearing the backpack after the accident, or the
    backpack was linked to Mr. Greer circumstantially by its discovery on the
    ground near the fallen motorcycle that Mr. Greer, the sole occupant of the
    motorcycle, had just crashed in a single vehicle accident. Simply put, a
Garofoli

application would not have advanced Mr. Greers
Charter

application.

[139]

I therefore accept that the trial judge acted unfairly in summarily preventing
    Mr. Greer from bringing a
Garofoli

application without first
    inviting submissions on the matter, but I am persuaded that this ruling did not
    result in a miscarriage of justice as it had no effect on the outcome of the
    trial.

(5)

Standing and the Search of the Intrepid

[140]

The second occasion on which the trial judge summarily prohibited
    Mr. Greer from raising a
Charter

issue without notifying
    counsel of her intention to do so, and without inviting full submissions,
    occurred on the fourth day of trial and related to the seizure of the Airwalk
    shoes.

[141]

It will be recalled that defence counsel had not given notice of
    his intention to challenge the constitutional validity of the warrantless search
    of the Intrepid. Indeed, he did not do so even in the second Notice of
    Application. Yet, after that second Notice was filed, when the Crown called
    Cst. Lucier, who testified that the Airwalk shoes were discovered during the
    consent search of Ms. Symes car, defence counsel objected saying that there
    would need to be a
voir

dire
into the validity of Ms.
    Symes consent to that search.

[142]

It is worth repeating the exchange that then occurred. The trial
    judges immediate response was to say: The only person who has standing to make
    that argument is Ms. Symes. Defence counsel objected to that conclusion,
    saying, Youve heard that they have use of that vehicle together. So for the
    Court simply to summarily say theres no standing whatsoever for Mr. Greer to
    advance an argument on that basis I would differ with. The trial judge replied:

I know you differ with me and Ive made the
    ruling. Mr. Greer has no standing to raise a
Charter

argument
    about a consent signed by Ms. Symes on a vehicle that, all the evidence Ive
    heard so far, is her property, she is the owner. Thats the ruling.

[143]

Without question, there were compelling grounds for dismissing this
    motion for failure to comply with the rules. Even with the benefit of argument,
    it is unlikely that Mr. Greer could have persuaded the trial judge otherwise,
    had that been the basis for her decision. But it was not. As the foregoing
    exchange confirms, the trial judge purported to exercise her discretion to
    summarily dismiss Mr. Greers request because, in her view, the proposed
Charter

challenge lacked merit as Mr. Greer had no standing to bring it. She made
    that decision without inviting submissions, even after being alerted by defence
    counsel that he had a different view of the law. And she did so without
    explaining the basis for her disagreement with counsels position. It was
    unfair for her to proceed this way.

[144]

Once again, I am persuaded that the unfair process did not result in
    a miscarriage of justice. As I explained when addressing Mr. Greers first
    ground of appeal, we know from the standing argument Mr. Greer made before us
    that his claim to standing to challenge the consent search is based solely on
    evidence that was adduced at trial. I therefore have no misgivings that, had
    the trial judge not summarily dismissed his standing argument at trial, he may
    have a better record on which to make his standing argument. He made before us
    the argument that the trial judge would not hear, and, as I have observed, I
    found that argument to be untenable. Even had the trial judge permitted
    submissions on whether the standing argument should be summarily dismissed for lack
    of merit, the outcome would have been the same.

[145]

Similarly, no miscarriage of justice can arise from the claim that Mr.
    Greer advanced for the first time on appeal, relating to his standing to
    challenge the seizure of the Airwalk shoes. I have already expressed my view
    that even if he were to prevail in that standing argument, it can confidently
    be said that the
Charter

challenges he would use that standing
    to advance would not have succeeded at trial.

[146]

Since the outcome would have been the same even if the judge had dealt
    fairly with Mr. Greers standing claim, he can show no miscarriage of justice.

(6)

Conclusion on Mr. Greers Second Ground of
    Appeal

[147]

I would therefore dismiss this ground of appeal claiming that the unfairness
    in the way in which the trial judge resolved his
Charter

claims
    caused a miscarriage of justice.

C.

DID THE TRIAL JUDGE ERR IN FINDING REASONABLE
    AND PROBABLE GROUNDS FOR THE SEARCH WARRANTS?

[148]

Mr. Greer did not press the issue during oral argument of whether
    there were reasonable grounds for the search warrants that were executed on
    September 4, and with good reason. There was ample information in the ITO upon
    which the reviewing trial judge could find that the issuing justice, acting
    judicially, could find reasonable and probable grounds to believe that an
    offence has been committed and that evidence of the offence would be found at
    the specified [places]:
R. v. Shivrattan
, 2017 ONCA 23, 346 C.C.C.
    (3d) 299, at para. 25, leave to appeal refused, [2017] S.C.C.A. No. 93.

[149]

The ITO was framed as being based upon information from a CI. This
    called for an examination of how compelling the information is, how credible
    the CI is shown to be, and whether the information the CI provides is corroborated:
R. v. Debot
, [1989] 2 S.C.R. 1140, at p. 1168. The trial judge
    recognized that the conclusory information provided by the CI was not compelling,
    and that, as an informant, he was unproven and untested. However, these observations
    are considerations in evaluating the reasonableness of reliance on a CI, not
    conditions that preclude the existence of reasonable and probable grounds:

Shivrattan
,
    at paras. 27-28. The trial judge was entitled to find that the impressive
    corroboration that was included in the ITO overcame these apparent weaknesses.

[150]

Specifically, the ITO disclosed that on July 22, 2014, during the traffic-stop
    search five days after the break-in, Mr. Greer was in possession of ammunition
    that was similar to ammunition taken during the break-in. At the time, Mr.
    Greer was prohibited from possessing ammunition. He was also in the company of
    Mr. Wall, who was found in possession of a stolen ammunition magazine.

[151]

The ITO further disclosed that on September 3, 2014, two knives/bayonets
    that had been stolen from the break-in were found in a backpack linked to Mr.
    Greer after he crashed a stolen motorcycle.

[152]

This evidence provides a credibly-based probability that Mr. Greer had
    been involved in the break-in and would possess stolen property from the
    break-in. Indeed, I agree with the Crown that, even without the CI, the events
    of July 22, 2014 and September 3, 2014 would have sufficed to provide
    reasonable grounds for the search warrants. Those two occasions on which Mr.
    Greer was found in possession of goods that were likely linked to the break-in
    would have been enough.

[153]

In coming to this conclusion, I have considered that the trial judge
    misapprehended the evidence in asserting that Mr. Van Meeteren identified the
    ammunition found on Mr. Greer as stolen, when the ITO in fact reported only
    that Mr. Van Meeteren said he had similar ammo taken. No miscarriage of
    justice arises from this. The timing of the discovery, the nature and
    circumstances in which this similar ammunition was found, and the subsequent
    discovery of other property definitively linked to the break-in in Mr. Greers
    possession easily show a credibly-based probability, even bearing in mind that Mr.
    Van Meeteren could not definitively link the ammunition to the break-in.

[154]

I would reject this ground of appeal.

D.

Did THE TRIAL JUDGE ERR IN FINDING THAT THE
    AIRWALK SHOES BELONGED TO MR. GREER?

[155]

The trial judges finding that the Airwalk shoes belonged to Mr.
    Greer is entitled to deference. There was a solid evidentiary foundation for this
    holding. Evidence showed that Mr. Greer was permitted to keep personal property
    in Ms. Symes Intrepid, including footwear. Only he and Ms. Symes had been
    observed placing items in the motor vehicle. He was observed reaching into the
    trunk of the Intrepid the day before the consent search. The Airwalk shoes
    were mens shoes. Based on her observation of the shoes and of Ms. Symes, the
    trial judge was satisfied that they would not have fit Ms. Symes. This was her
    decision to make.

[156]

The trial judges conclusion that the shoes belonged to Mr. Greer
    was therefore not unreasonable or unsupported by the evidence. Nor is her
    conclusion undermined by her description of the size 10 shoes as size 12 shoes.
    She misspoke. She made that error on one occasion, accurately describing the
    shoes as size 10 on more than one occasion in the same judgment.

[157]

I do not accept Mr. Greers contention that the trial judge was also
    incorrect in observing that there was no evidence that anyone else accessed
    the trunk for the Intrepid during the observation period. That is an accurate
    description of the evidence. Had others been observed accessing the trunk, the
    circumstantial case linking Mr. Greer to the Airwalk shoes would have been
    weakened. The fact that no such observations were made is not irrelevant or
    improper to consider. Nor does the fact that others were observed driving the
    car or being around the car change this.

[158]

I would dismiss this ground of appeal.

CONCLUSION

[159]

I would dismiss the conviction appeals and dismiss the sentence
    appeal as abandoned.

Released: December
    14, 2020 MT

David M. Paciocco J.A.
I agree. M. Tulloch J.A.
I agree. Harvison Young J.A.





[1]

R. v. Belnavis
, [1997] 3 S.C.R. 341.


