News
Gun admissible despite Charter breach

Despite the unlawful search of a trunk, the loaded gun found in it wasn’t excluded as evidence and the resulting weapons convictions were upheld.

In R. v. Wright, 2013 ONCA 778 the accused and another man (Lewis) were heard on a police wiretap indicating that Wright might have a firearm in one of two cars, a Honda or a Lexus. About an hour later a detective located the cars in a club parking lot. He briefed other officers in the area that there was reliable information of a firearm. Although he described the vehicles, including their license plate numbers, he did not pass on the names of the two suspects nor say the source of the information was a wiretap. The officers understood that they were to stop the two cars to try to determine if there was a firearm but had no direct order to search.

The Lexus, driven by Lewis, was stopped but eventually let go. The Honda was also pulled over at about the same time. An officer smelled liquor on the driver’s breath and administered a screening test, which registered a “warn.” He issued a 12-hour license suspension. Wright, a passenger, was identified and checked on the police database. He was considered “armed and dangerous”.

Since Wright’s driver’s license was also suspended, the car was to be impounded. His demeanor and attitude changed once realizing the car would be towed and after one of the officers inadvertently opened the trunk while removing the keys from the ignition. He became very nervous, saying the car belonged to this girlfriend, he did not know what was in it and that nothing belonged to him. Based on that change, the officers decided they had reasonable and probable grounds to search the vehicle but did not consider whether there were exigent circumstances requiring an immediate search. They found a handgun wrapped in some shirts inside a black shoulder bag in the back of the trunk.

An Ontario Superior Court judge concluded, based on the totality of the circumstances, that the officers had reasonable and probable grounds to search the car. This included the reliable information about a gun provided by the detective and Wright’s change in demeanor and attitude once the trunk was opened and the car was to be towed. The judge found the trunk search justified under s. 117.02 of the Criminal Code, although he did not consider whether there were exigent circumstances permitting the trunk search without a warrant.

The judge found the search wasn’t unreasonable under s. 8 of the Charter; even if there was a breach the gun would have been admitted under s. 24(2). Wright was convicted of possessing a weapon for a dangerous purpose, unauthorized possession of a firearm in a vehicle and careless transport of a restricted weapon.

Wright challenged his convictions to the Ontario Court of Appeal, arguing the trial judge erred in concluding the trunk search was reasonable and the evidence should have been excluded if his rights were breached.

The appeal court found it unnecessary to decide whether s. 8 was violated. The gun was properly admitted under s. 24(2) and the officers acted in good faith.

They did not decide to search the vehicle until they had developed the requisite reasonable and probable grounds in light of unfolding events at the scene of the vehicle stop, the court noted.

They knew they did not have reasonable and probable grounds when they first stopped the Honda and were only satisfied that these grounds developed once the (accused) (a) became noticeably concerned about the police taking the car and (b) began to dissociate himself from the car and its contents.

Although the officers should have but did not advert to the existence of exigent circumstances or to officer or public safety, if that failure caused a breach of s. 8, it still places the seriousness of the Charter-infringing conduct at the lower end of the spectrum on this occasion.

The impact of the breach on Wright’s expectation of privacy was also relatively low in the specific circumstances of this case.

A person’s expectation of privacy in his (or his partner’s) vehicle is less than in his residence… In this case, the vehicle was about to be towed to the police station under the statutory authority of s.48(11) of the Highway Traffic Act… which permits the police to impound a vehicle where the driver fails the roadside test…

(T)he right to impound a vehicle also includes the right to inventory its contents. This further reduces the expectation of privacy when a vehicle is driven on the roads.

Finally, gun violence and gun possession are matters of serious concern in our society. A loaded firearm is also reliable evidence and was essential to prove the Crown’s case.

In balancing these three factors, Ontario’s highest court found that the handgun was properly admitted as evidence. Wright’s appeal was dismissed and his convictions affirmed.