R. v. Stevens, [2012] O.J. No.

2090
Ontario Judgments

Ontario Court of Appeal

Toronto, Ontario
K.M. Weiler, J.M. Simmons and E.A. Cronk JJ.A.
Heard: April 16-17, 2012.
Judgment: May 14, 2012.
Docket: C48927
[2012] O.J. No. 2090 | 2012 ONCA 307 | 101 W.C.B. (2d) 419 | 2012 CarswellOnt 5827
Between Her Majesty the Queen, Respondent, and Bob Stevens, Appellant

(12 paras.)

Case Summary

Criminal law — Constitutional issues — Canadian Charter of Rights and Freedoms —

Legal rights — Protection against unreasonable search and seizure — Appeal by accused
from convictions for unauthorized use of a firearm, careless handling of a firearm and
breach of recognizance dismissed — Accused threw gun out of home into neighbouring
yard when police arrived, thereby divesting himself of possession and giving up any
reasonable expectation of privacy — Judge was not obliged to consider deficiencies in
warrant to search residence of accused to determine whether right to protection against
unreasonable search and seizure was breached — Right to protection against
unreasonable search and seizure was not engaged — Canadian Charter of Rights and
Freedoms, 1982, s. 8.

Appeal by Stevens from his convictions for unauthorized use of a firearm, careless handling of a firearm and
breach of recognizance. A confidential informant told police that Stevens was a drug dealer who kept a handgun
and ammunition at his residence. The informant claimed he had been in the residence and had seen the gun.
Executing a telewarrant, the police entered Stevens' residence in the middle of the night. Moments before they
entered, police saw someone throw an object inside a white sock out the window. The sock landed in an
adjacent yard. Inside was found a semi-automatic firearm. Stevens was the sole occupant of the home. No drugs
or weapons were found inside. At trial, the judge declined to consider whether or not the warrant was valid,
because she found that Stevens discarded the gun in an area where he had no reasonable expectation of
privacy, and that he had abandoned it. She found that the gun was discovered independently of the warrant. She
found that the gun was lawfully seized by the police and that there had been no violation of Stevens' right to
protection against unreasonable search and seizure. Had there been a breach of Stevens' rights, she ruled that
the gun evidence would have been admissible anyway.

HELD: Appeal dismissed.

In the factual circumstances, the judge was not obliged to determine the legality of the warrant. Stevens' right to
protection against unreasonable search and seizure was not engaged. He had no reasonable expectation of
 Page 2 of 4
R. v. Stevens, [2012] O.J. No. 2090

privacy in the neighbouring yard where he had discarded the gun. He no longer had possession of the gun and
had tried to divest himself of possession of it.

Statutes, Regulations and Rules Cited

Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985, App. II, No. 44, Schedule B, s.
8, s. 24(2)

Appeal From:
On appeal from the conviction entered on April 18, 2008 by Justice Feroza Bhabha of the Ontario Court of
Justice.

Counsel

Louis P. Strezos and Shannon S.W. O'Connor, as Duty Counsel.

James K. Stewart, for the respondent.

ENDORSEMENT

The following judgment was delivered by

THE COURT

1 The appellant appeals his conviction for unauthorized possession of a firearm, careless
handling of a firearm and failure to comply with a condition of his recognizance.

2 The background facts giving rise to this appeal are that a confidential informant told police
that the appellant was a drug dealer and that he kept a handgun and ammunition at his
residence. The informant claimed to have been in the residence and seen the gun during a
certain time period. The Information To Obtain (ITO) that was drafted by the officers observing
the appellant's home was used to obtain a search telewarrant.

3 A "stealth search" was executed in the middle of the night. As police were at the door and
moments before they entered the residence three officers outside saw someone throw an item
inside of a white sock out the window. The item landed in an adjacent yard. It was found to be a
semi-automatic firearm.
 Page 3 of 4
R. v. Stevens, [2012] O.J. No. 2090

4 The appellant was the sole occupant of the residence. No other drugs or weapons were found
inside.

5 As the ITO contained some significant errors, the main issue at trial was the validity of the
search warrant and therefore the search. The trial judge declined to determine the validity of the
warrant. She held that the gun was discarded into an area where the appellant had no
reasonable expectation of privacy and that he had abandoned it.

6 The trial judge further held that the gun was discovered independently of the warrant.
Notwithstanding her conclusion that the gun was lawfully seized by police and that there was no
violation of the appellant's s. 8 Charter rights, the trial judge proceeded to engage in a s. 24(2)
Charter analysis and, using the Collins test (in place at the time), would have admitted the
evidence.

7 On appeal, the main argument put forward by amicus is that, because the trial judge declined
to determine the validity of the search warrant, this court is not in a position to determine
whether the appellant's Charter rights were breached and a new trial is required. A
determination of the validity of the search warrant in light of the errors in the ITO was essential.
The question of abandonment of the gun could not be properly decided without first determining
whether the appellant's Charter rights had been infringed.

8 We disagree. In the factual circumstances here, the trial judge was not required to determine
the legality of the search. In order to engage a person's rights under s. 8 of the Charter, that
person must first establish a reasonable expectation of privacy: see R. v. Edwards, [1996] 1
S.C.R. 128, at paras. 33 and 39. Having thrown the handgun out the window into a neighbour's
yard, the appellant no longer had any reasonable expectation of privacy respecting the gun. He
no longer had possession or control over the gun; instead, he attempted to divest himself of
possession or control of it. Indeed, he gave up the ability to regulate access to it when he threw
it away. Furthermore, he offered no evidence of any subjective expectation of privacy in it. The
absence of these factors was sufficient for this court to hold that the accused's s. 8 rights were
not engaged in R. v. Nesbeth, [2008] O.J. No. 3086 (C.A.) at para. 22, leave to appeal to the
S.C.C. refused, [2009] S.C.C.A. No. 10. See also R. v. L.B., [2007] O.J. No. 3290; and R. v.
Plummer, [2011] O.J. No. 2034 (C.A.).

9 Usually, it is only after the appellant has established a reasonable expectation of privacy and
the court is considering whether the search was an unreasonable intrusion on that right to
privacy that there is a need to consider the reasonableness of the search and whether there has
been police misconduct: Edwards, supra. Here, as the trial judge had correctly held that the gun
had been abandoned, s. 8 was not engaged, and the trial judge was not obliged to consider the
validity of the telewarrant or the legality of the police search.

10 Having regard to this conclusion, it is unnecessary for us to address the balance of the
arguments put forward by amicus as they all relate to the legality of the search (e.g. whether the
trial judge erred in holding there was no cognizable legal nexus between the execution of the
warrant and the seizure of the firearm and whether the validity of the ITO and therefore the
search warrant would have had a bearing on the issues whether the police acted in good faith
for the purpose of a s. 24(2) analysis).
 Page 4 of 4
R. v. Stevens, [2012] O.J. No. 2090

11 The grounds of appeal in the appellant's notice of appeal were not pursued before us and, in
any event, having regard to our conclusion it is unnecessary for us to deal with them.

12 The appeal is dismissed.

K.M. WEILER J.A.

J.M. SIMMONS J.A.
E.A. CRONK J.A.

End of Document