Law Times

Page 8 June 1, 2015 • Law Times www.lawtimesnews.com Courts resistant to excluding evidence of handgun seizures By Shannon Kari Law Times T he societal damage caused by handgun violence doesn't mean there's a virtual Char- ter-free zone for the conduct of police when they seize a weapon, the Ontario Court of Appeal has found. Its decision in R. v. Foun- tain upheld the conviction of a young black man sentenced to four years in prison after po- lice found him in possession of a loaded handgun following a random stop. The Court of Appeal cau- tioned, though, against trial judges relying on its 2007 deci- sion in R. v. L.B. when applying the s. 24(2) test as to whether the court would admit evidence of the seizure of a handgun after a breach of the Charter of Rights and Freedoms. The 2007 decision, written by now-Supreme Court Justice Michael Moldaver, referenced the images of children dying, families overcome by grief, and communities reeling in shock as a result of gun violence. Justice William Horkins cit- ed it in his decision convicting Alexander Fountain of illegal possession of a handgun. Justice Harry LaForme, writ- ing for the Court of Appeal, found that while no one dis- agrees with the dangers caused by handguns, the L.B. decision arose specifically in the context of a student bringing a loaded weapon onto school property. "I do not think it proper for trial judges to rely on them as a gen- eral proposition in all cases in- volving handguns. That is, trial judges should not turn to such images in every case as part of the analysis under 24(2)," wrote LaForme in the May 19 ruling in Fountain. The charges against Fountain stemmed from an incident in which an officer called him over after walking by a police car. Af- ter finding no outstanding war- rants, the officer decided to fill out a "208 card" with Fountain's personal information using a controversial practice by Toronto police known as carding. As that was happening, an- other man walked by and sug- gested police were harassing Fountain, who then moved abruptly. Police patted him down and found a handgun af- ter a foot chase. The officer admitted he had no initial basis to detain Foun- tain. "The officer only thought the appellant might be the brother who might be wanted," wrote the Court of Appeal. It disagreed with Horkins' statement about requiring "truly egregious conduct" by police to consider excluding a handgun. However, the search of Fountain was lawful given the "exigent circumstances," according to the Court of Appeal. Breana Vandebeek, who rep- resented Fountain on appeal, says while the appeal court upheld the conviction, there were some posi- tive aspects to the ruling. "The Court of Appeal's decision is help- ful in that it makes clear there is no general proposition that guns should always be admitted," says Vandebeek, an associate at Ru- sonik O'Connor Robbins Ross Gorham & Angelini LLP. The s. 24(2) analysis, as set out by the Supreme Court of Canada in 2009 in R. v. Grant, doesn't distinguish between what police have seized. Still, there's a belief among many criminal lawyers that there's significant leeway in terms of police conduct when it comes to handgun seizures. "It is what we call 24(3)," says Tyler Smith, a partner at Hicks Adams LLP in Toronto. "You can never get a gun excluded." A survey by Law Times of re- ported cases available on Can- LII this year showed several in- stances where judges excluded evidence because of the conduct of police or f laws in the informa- tion to obtain a search warrant. Most of the examples involved marijuana or, in some cases, harder drugs. Only once did the court exclude a handgun. The test in Grant doesn't sug- gest that what police find is the most important factor to con- sider, says Lee Stuesser, dean of the law school at Lakehead Uni- versity and co-author of a leading criminal text on evidence. "The seriousness of the of- fence does not trump every- thing else," says Stuesser. At the same time, the third branch of the test in Grant — society's in- terest in the adjudication of a case on its merits — gener- ally favours inclusion of a handgun. "When police find a gun, it is reliable evidence," says Stuesser. If the police misconduct involves a physical assault, "that is really serious" and the facts may support the exclusion of a handgun, ac- cording to Stuesser. Police violence was part of the misconduct cited by On- tario Superior Court Justice Ian Nordheimer in R. v. Jinje, a recent case in which the court excluded a handgun. Nordheimer found nu- merous Charter breaches by Toronto police in the arrest of Samatar Jinje, a 20-year- old man with no prior crimi- nal record suspected of steal- ing an iPhone. "A twenty year old man is walking through a park with his friends and winds up, not only being falsely arrested, but beaten in the process," wrote Nordheimer. The finding of a gun "cannot justify the means," he added. Nordheimer made numer- ous comments about the unre- liability of the police evidence, especially in relation to the lead officer. Shortly after the media reported on the ruling, outgoing Toronto police chief Bill Blair referred publicly to the lead of- ficer as a "hero" for taking a gun off the street. The comments by Blair, who's hoping to run for the Liberals in the upcoming federal elec- tion, isn't a surprise, says Smith. "From a police perspective, this is a legitimate crime reduction technique. Go into high-crime areas, ignore the Charter and if there are any complaints, they will rarely go anywhere," says Smith. If police do seize any guns, they'll consider that a suc- cess, he adds. LT 'The Court of Appeal's decision is helpful in that it makes clear there is no general proposition that guns should always be admitted,' says Breana Vandebeek. 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