New & Notable: Justice may be blind but you don’t need to wear blinders

Richard Vader had a lot of guns and ammo.  At the time that Vader had these guns and ammo he was bound by two prohibition orders, banning him from possessing any of these items. At his trial Vader conceded that he was in fact in possession of the firearms and ammo when he was prohibited from doing so. The only issues at trial was whether Vader’s statements to police were admissible and whether the arsenal guns and ammo should be excluded from evidence due to alleged breaches of Vader’s Charter rights: 2012 ONSC 5418.


On October 4th, 2011 Vader was driving a pick-up truck. Given that he had seven firearms and ammunition in the truck with him, he probably should’ve replaced his burnt out headlight before going for a drive, but instead Vader was intercepted by Officer Roughley.

During the traffic stop Officer Roughley discovered that the vehicle wasn’t insured and that Vader had been suspended from driving since 2006. More importantly however, at least to Officer Roughley, was the discovery of the fact that Vader was bound by two firearms prohibitions. Officer Roughley testified that this fact increased his level of attentiveness and concern during what started as just another traffic stop.

Twice during his interaction with police, Vader stepped out of his vehicle. On the second such occasion, with both Vader and Officer Roughley standing outside the driver’s side door, Officer Roughley saw a green metal box, which he immediately recognized as an ammunition box, standing upright on the passenger side floor. Vader confirmed it was an ammunition box. Officer Roughley then asked if there was any ammo in the box. Vader replied that there might be. Unfortunately, Officer Roughley did not record this conversation in his notebook, nor did he testify about it at the preliminary hearing. The trial judge, however, accepted:

“(…) Officer Roughley’s evidence about the verbal exchange with the accused. It would have been quite natural in the circumstances and it fits with the Officer’s personal style” [para 17].


Following this exchange with Vader, Officer Roughley beckoned the other two police officers on scene to keep an eye on Vader as he took a better look at the truck for safety reasons. Officer Roughley agreed that as of that moment Vader was detained and that he did not seek his permission before searching the truck.  Vader was escorted to the rear of a police cruiser by one of the other officers and told not to speak.

As soon as Vader was clear of the truck Officer Roughley was able to see several soft rifle cases protruding from behind the seats. A quick squeeze revealed what felt like the barrels of more than one gun. Officer Roughley removed the gun cases from the cab of the truck and discovered that they contained a total of seven rifles, none of which had locks or other safety mechanisms.

First, in relation to the statements made by Vader at the roadside, Lauwers J found that Vader’s section 10(b) Charter rights had been violated when Officer Roughley failed to advise him of his rights to counsel prior to asking questions about the ammunition box and its contents.

Despite this finding Lauwers J noted that Officer Roughley would have checked out the ammunition box regardless of Vader’s answer to his questions [para 25].

Second, before turning the section 8 issue, Lauwers J considered the plain view doctrine as it related to the ammunition and guns found and seized by Officer Roughley.  Relying on the criteria in R v Jones, 2011 ONCA 632, Lauwers J held that:

In my opinion, the plain view doctrine, rooted as it is in the practical exigencies of police work, is flexible enough to permit an officer who has reasonable grounds to believe from a visual cue that a criminal offence has been or is being committed, to seize the item for inspection. In this case the inspection of the box immediately revealed the crime [emphasis added]; [para 33].


The defence argued that even if the plain view doctrine applied to the seizure of the ammunition the further search and seizure of the guns was in violation of Vader’s section 8 Charter rights and that the Charter protected Vader from Officer Roughley’s ‘second peek’ once Vader had been escorted away from the truck.

Lauwers J gave short shrift to this argument and specifically rejected the:


(…) defence submission that the officer's actions amounted to a search rather than a seizure. I find the suggestion that the officer was obliged to put on notional blinders at the moment that he noticed the ammunition box to be absurd; it would amount to a form of judicial micromanagement of the application of the plain view doctrine in the context of investigative detention that is simply not sensible in the field where difficult and potentially dangerous police work is done [emphasis added]; [para 36].


Although Lauwers J concluded that the evidence was admissible in accordance with the plain view doctrine, he nonetheless considered the application of section 24(2) of the Charter. Lauwers J undertook two separate analyses. First, on the basis that the plain view doctrine applied and second, on the basis that he had erred and it did not apply.

At the conclusion of each analysis, Lauwers J found that there was “no Charter reason to exclude the ammunition box, the gun cases or their contents from the evidence in this case” [para 68].

Lauwers J’s reasoned acceptance of the application of the plain view doctrine is a refreshing acknowledgement of the practical exigencies of police work and that the ex post facto analysis in the courtroom is not fairly conducted without first recognizing that fact.