Published On: Jul 23,2021
In Regina v. Barton, 2021 ONCA 451 (RD), the Ontario Court of Appeal allowed the appellant’s appeal from his convictions for firearms-related offences.
During a warrantless search, police discovered a gun inside a planter located in a common hallway outside the appellant’s apartment. The next day, police executed a search warrant and found ammunition for the gun and a bulletproof vest inside the appellant’s apartment. The appellant was convicted after a trial by judge and jury. The defence had posited that the trial judge erred in concluding the semi-automatic handgun was not “obtained in a manner that infringed or denied” his rights under the Canadian Charter of Rights and Freedoms, given the causal, contextual, and temporal links he alleges between the search of the planter and what was conceded by the Crown to be unconstitutional police conduct in seeking to search his apartment without a warrant. In the alternative, the defence argued that the trial judge erred in finding that he did not have a reasonable expectation of privacy in the hallway or the planter.
On appeal, the Court of Appeal held that the trial judge erred in concluding that the gun was not “obtained in a manner” that infringed the appellant’s rights under the Charter. The court noted that there were causal, contextual, and temporal connections between the search of the planter and what was conceded by the Crown to be unconstitutional police conduct in seeking to search the appellant’s apartment without a warrant. Therefore, the gun was unconstitutionally obtained. The Court stated as follows, in relevant part:
 Police officers discovered the semi-automatic handgun as a result of a step they had taken to gain unlawful warrantless entry into Mr. Barton’s apartment. Specifically, they moved the planter in the hallway to assist their efforts in breaching the front door. After moving the planter, the officers observed a string protruding from its cylinder. Inferring that the string might be attached to a key that would give them warrantless entry to Mr. Barton’s apartment, the officers pulled the string which led to a bag secreted in the planter. They opened the bag and discovered the semi-automatic handgun inside.
 Since the semi-automatic handgun was discovered as a result of a step officers had taken to gain unlawful entry to the apartment, the discovery is causally connected to the Charter breach: see, R. v. Goldhart, 1996 CanLII 214 (SCC),  2 S.C.R. 463, at paras. 33-35. The trial judge erred in finding otherwise.
Reference to the discovery of the gun had to be excised from the information to obtain the search warrant. A new trial was required to determine whether excision of the discovery of the gun from the warrant information would lead to a finding that the later warranted search was unconstitutional. The court ordered a new trial on all charges to determine whether excision of the discovery of the semi-automatic handgun from the warrant information will lead to a finding that the later warranted search was unconstitutional. This finding could, in turn, have an impact in deciding whether to exclude the semi-automatic handgun itself, since additional Charter breaches occurring during the same investigation can enhance the seriousness of each of the Charter breaches: see e.g., R. v. Davidson, 2017 ONCA 257, 352 C.C.C. (3d) 420, at para. 48.
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