COURT FILE NO.: 65/02
DATE: 2003/03/04
ONTARIO
SUPERIOR COURT OF JUSTICE
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B E T W E E N:
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HER MAJESTY THE QUEEN
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Susan Stothart, for the Respondent
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Respondent
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- and -
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ROBERT COX
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Louis Sola, for the Appellant
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Appellant
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HEARD: February 18th, 2003
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ROBERT G. S. DEL FRATE, S.C.J.
[1] This appeal arises as a result of the conviction and sentence on three counts of careless storage of a firearm contrary to s. 86(1) of the Criminal Code of Canada.
[2] The sentence imposed was a fine of $300 on each count and an Order of Forfeiture of the firearms.
SUMMARY OF THE FACTS RELEVANT TO THE APPLICATION
[3] On June 18, 2000 at approximately 2:30 in the morning, police were advised of a domestic assault at 40B Laporte Road in the Municipality of St.Charles. As they approached the scene, the Appellant, Robert Cox, was stopped and eventually was arrested for impaired driving.
[4] While the Appellant was being escorted to the Police Detachment by another officer, Cst. Renaud and Sgt. Furchner proceeded to the Appellant's neighbour's residence at 24 Laporte Road where they interviewed a Ms. Lalonde who allegedly was assaulted by the Appellant. Ms. Lalonde was upset, impaired and showed signs of an assault.
[5] Upon completion of her statement, Mrs. Lalonde requested to be accompanied next door to the Appellant's residence to fetch her personal belongings as it was her intention to go to her parents' home for the evening.
[6] Ms. Lalonde stated that she had been dating the Appellant for two years; that she was living at the Appellant's residence, but did maintain a separate apartment in Hanmer, Ontario.
[7] The police complied with her request to retrieve her belongings and proceeded to the Appellant's residence. At some point, either during the taking of the statement or while they were in the Appellant's residence, either at the request of Sgt. Furchner or else as a statement by Ms. Lalonde, firearms were mentioned.
[8] Ms. Lalonde wanted the firearms removed since she feared for her safety. She then told the officers that the firearms were located in a closet upstairs. Sgt. Furchner proceeded to the closet and retrieved the three firearms in question. The firearms were not secured as per the regulations.
[9] When Ms. Lalonde was finished retrieving her possessions, Sgt. Furchner seized the guns and then drove Ms. Lalonde to her parents' residence in St. Charles.
[10] At trial, a voir dire was held regarding the admissibility of this particular evidence on the basis that there had been a breach of the Appellant's rights pursuant to s. 8 of the Charter.
[11] The trial Judge ruled against the Application on the basis that the Appellant and Ms. Lalonde were sharing accommodations at his residence. Secondly, he found that the police entered the Appellant's residence for the purpose of escorting Ms. Lalonde and not for the purpose of searching and seizing the guns. The actions of the officers were reasonable considering the circumstances.
APPELLANT'S POSITION
[12] The Appellant contends that the learned trial Judge erred in finding that there was no breach of the Appellant's rights to be secure against unreasonable search and seizure and that the evidence obtained as a result of the warrantless search and seizure ought to be excluded.
[13] The officers entered the property at the request of Ms. Lalonde who in fact had no authority to permit the officers to search the premises. At best, she was a guest and thus, she could not waive the Appellant's right to privacy in his own home. The officers ought to have obtained a search warrant before entering the Appellant's residence. Such a warrantless search should lead to the exclusion of the evidence pursuant to s. 24(2) of the Charter.
[14] Lastly, under all of the circumstances, the sentence was excessive.
POSITION OF THE CROWN
[15] Section 8 does guarantee an individual a reasonable expectation of privacy. Such expectation must be examined on the totality of the circumstances. Since they were on the Appellant's premises at the request of Ms. Lalonde, then the search and seizure was reasonable under those circumstances.
[16] Even if there was a breach of s. 8, the evidence should be introduced pursuant to s. 24(2) of the Charter since its exclusion would leave the administration of justice into disrepute.
ANALYSIS
[17] In determining whether the evidence on the voir dire ought to be excluded, the trial Judge considered the Duarte[1] decision. In analyzing all of the evidence, he concluded that the Appellant and Ms. Lalonde "shared accommodation". (Page 58 Reasons on Voir Dire)
[18] Although he makes this finding, he does not deal with whether Ms. Lalonde, as a sharer of accommodation, had the right to invite the police to search for the guns. No doubt there have been cases where the Courts have held that spouses and/or co-habitants can consent to searches in common areas. (see Van Wyk[2], C.G.[3], Laidley[4], Gregson[5], Meyers[6], King[7] and Brilhante[8]).
[19] In spite of not dealing with that issue, the learned trial Judge concludes that the actions of the police officers were reasonable and concludes that the exclusion of such evidence would bring the administration of justice into disrepute pursuant to s. 24(2) of the Charter. He finds that:
"We are not into a situation where the police are coming in and asking questions and looking around and searching. We are here where the police, in the course of an investigation, are attempting to ensure the comfort and the safety of the complainant. That was the phrase used by the Crown. In so doing, she had asked to attend at this residence to secure her personal property, possessions, and in the course, in the logical course of the investigation, having regard to the circumstances which are being disclosed doing this investigation, the police officer makes an inquiry as to the existence of weapons and he is directed to where he is to find weapons and he, indeed, finds weapons". (Page 59 of Reasons on Voir Dire).
[20] He then goes to find that:
"surely this is the type of thing that is required of the investigating officers in the circumstances". (Page 59 of the Reasons on Voir Dire).
[21] Accordingly, the learned trial Judge performed the analysis required as per s. 8 and s. 24(2) of the Charter. In other words, he questioned whether there had been a breach of the Appellant's rights, whether the search was reasonable and then considered the effect on the trial fairness, the seriousness of the breach, and finally, what effect it would have on the administration of justice if the evidence were excluded.
[22] He concluded that as a sharer of accommodation, Ms. Lalonde may have had the right to invite the police. The officers primary concern was to assist Ms. Lalonde in retrieving her personal belongings. They did not enter the premises for the specific purpose of searching for the weapons. The search was an ancillary result to their main objective of entering the Appellant's residence.
[23] What the officers did on that particular evening is what would be expected of them. Once the officers became aware of the presence of guns, and realizing that the premises would have been unlocked, it would have been irresponsible and negligent on their part not to secure them especially when one considers the background of violence and excessive consumption of alcohol earlier that evening. Even if there had been a breach under s. 8, the evidence should be admitted pursuant to s. 24(2) of the Charter.
[24] The appeal against conviction, therefore, is dismissed.
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ROBERT G. S. DEL FRATE
Superior Court Justice
Released: March 4, 2003
