R. v. Stevens, 2011 ONCA 504

In R. v. Stevens, the Ontario Court of Appeal considered the application of s. 8 of the Charter 
to the search and seizure of gun cases after a warrantless search of a rented apartment by police officers. In finding that the search and seizure violated s. 8, the court distinguished the gun cases themselves from their contents for the purposes of s. 8, rejecting the application of the "plain view" doctrine to the contents of the gun cases and finding no exigent circumstances to justify the search.  Armstrong J.A., writing for the court, excluded the evidence under s. 24 and reversed the appellant's conviction for careless storage of a firearm and ammunition.

The case arose when the appellant's landlord inadvertently commenced the eviction process against the appellant, following a dispute over rent. In enforcing the mistaken eviction, sheriff’s officers entered the apartment and discovered two gun cases. They called the police, who opened the cases without a search warrant and discovered improperly stored guns and ammunition inside.

Finding no cases directly on point, Justice Armstrong discussed reasonable expectation of privacy in relation to precedents that excluded evidence found during warrantless searches of a hotel room closet and a bus terminal locker, respectively.  He held that a mistaken eviction order does not diminish an individual’s expectation of privacy in his own home; nor does a landlord’s duty to take inventory of personal property in the course of an eviction justify the opening of gun cases.  Justice Armstrong distinguished the case from R. v. Wint, where the Ontario Court of Appeal found no s. 8 violation when police searched an impounded car, reasoning that the privacy interests in the contents of an apartment home in the custody of the landlord are greater than those in the contents of a car in the custody of the police.  In disagreement with the courts below, Armstrong JA found no “exigent circumstances" to justify a warrantless search of the gun cases. He drew a distinction between the right to be present and the right to search, finding that the police had the former, but not the latter.  Additionally, Justice Armonstrong rejected the Superior Court's application of the “plain view” doctrine, noting that while the cases were in plain view, the guns were not.

July 12, 2011
Link to Decision

Tony Drake, Marc Gibson, Kai Sheffield