New & Notable: Finders Keepers...

Bob Stevens had a semi-automatic firearm.  The police found out about it.  They obtained a search warrant to search his residence for the firearm.  When they attended his house to execute the warrant in a "stealth search" Stevens was observed to throw something in a white sock out his window into a neighbour's yard.  The police retrieved the sock and found a firearm inside.  Stevens was charged.  At trial Stevens was convicted and appealed; the Court of Appeal dismissed his appeal: 2012 ONCA 307.


At trial Stevens sought to exclude the gun by attacking the warrant.  Bhabha J declined to consider the validity of the warrant, instead, finding that Stevens had abandoned the firearm.  Bhabha J did note, however, that there were deficiencies in the warrant and did - despite finding no expectation of privacy due to abandonment - conduct an analysis under 24(2).


On appeal Stevens argued that the since the trial judge declined to determine the validity of the warrant the court of appeal was unable to determine whether his Charter rights were violated and therefore were required to order a new trial.  The court of appeal disagreed.


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.).


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 [emphasis added]; [paras 8-9].


Stevens is another helpful court of appeal case on abandonment.  It is also an interesting case on the facts. What it should not be noted as, however, is encouragement to write sloppy ITOs.  But for the "compliance" of Stevens in abandoning his gun, it appears that this warrant was in jeopardy.  Not everyone will be as helpful as Stevens, write good warrants!  But, when people are as helpful, seize the opportunity.