R. v. L.B.,

JurisdictionOntario
JudgeMoldaver, MacPherson and Cronk, JJ.A.
Neutral Citation2007 ONCA 596
Citation(2007), 227 O.A.C. 132 (CA),2007 ONCA 596,86 OR (3d) 730,227 CCC (3d) 70,49 CR (6th) 245,[2007] OJ No 3290 (QL),163 CRR (2d) 80,227 OAC 132,76 WCB (2d) 232,(2007), 227 OAC 132 (CA),[2007] O.J. No 3290 (QL),86 O.R. (3d) 730,227 O.A.C. 132
Date22 June 2007
CourtCourt of Appeal (Ontario)

R. v. L.B. (2007), 227 O.A.C. 132 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. SE.013

Her Majesty the Queen (appellant) v. L.B. (respondent)

(C41830; 2007 ONCA 596)

Indexed As: R. v. L.B.

Ontario Court of Appeal

Moldaver, MacPherson and Cronk, JJ.A.

September 5, 2007.

Summary:

The accused was charged with one count of possession of a loaded restricted firearm and seven other gun and gun-related counts. The trial judge excluded the gun from evidence under s. 24(2) of the Charter and, as a result, acquitted the accused on all counts without a trial on the merits. The Crown appealed.

The Ontario Court of Appeal allowed the appeal and ordered a new trial.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - On September 11, 2002, at approximately 2:35 p.m., two plainclothes police officers were driving by a high school in an unmarked police car - They noticed a young male (F) partially seated on the railing of a walkway leading up to the school grounds and another young male (B) seated on the school grounds, just inside a fence at the upper end of the walkway - They observed that F and B, although physically apart, were together - The officers returned to speak to them - B walked down the stairs to speak to the officers - He left behind a black bag - One officer walked to the area that B had left, to look for the bag - He found it and asked "Whose bag is this?" - F did not respond - B replied "I don't know" - The Ontario Court of Appeal held that, having disclaimed any privacy interest in the bag, B effectively precluded himself from relying on s. 8 of the Charter to impugn the lawfulness of the officer's search - See paragraphs 1 to 27 and 71.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The accused (young offender) was charged with one count of possession of a loaded restricted firearm and seven other gun and gun-related counts - The trial judge found violations of his ss. 8, 9 and 10(b) Charter rights and excluded the gun from evidence under s. 24(2) - As a result, he acquitted the accused on all counts without a trial on the merits - The Crown appealed - The Ontario Court of Appeal held that the accused's Charter rights were not violated and ordered a new trial - The court rejected the accused's submission that it would constitute an abuse of process to order him to stand trial again and that a stay of proceedings was warranted - The charges were very serious - They involved a loaded handgun in the possession of a student on school property - Society had a strong interest in having him tried on the merits - There was no evidence of specific prejudice - The trial Crown could, in the exercise of his or her discretion, stay the proceedings - Failing that, the accused could seek to have the proceedings respecting the new trial stayed under s. 11(b) of the Charter - See paragraphs 83 to 88.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - On September 11, 2002, at approximately 2:35 p.m., two plainclothes police officers were driving by a high school in an unmarked police car - They noticed a young male (F) partially seated on the railing of a walkway leading up to the school grounds and another young male (B) seated on the school grounds, just inside a fence at the upper end of the walkway - They observed that F and B, although physically apart, were together - The officers returned to speak to them - B walked down the stairs to speak to the officers - He left behind a black bag - One officer walked to the area that B had left, to look for the bag - He found it and asked "Whose bag is this?" - F did not respond - B replied "I don't know" - The Ontario Court of Appeal held that B was not psychologically detained by the officers - See paragraphs 1 to 68.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - On September 11, 2002, at approximately 2:35 p.m., two plainclothes police officers were driving by a high school in an unmarked police car - They noticed a young male (F) partially seated on the railing of a walkway leading up to the school grounds and another young male (B) seated on the school grounds, just inside a fence at the upper end of the walkway - They observed that F and B, although physically apart, were together - The officers returned to speak to them - B walked down the stairs to speak to the officers - He left behind a black bag - One officer walked to the area that B had left, to look for the bag - He found it and asked "Whose bag is this?" - F did not respond - B replied "I don't know" - B was charged with one count of possession of a loaded restricted firearm and seven other gun and gun-related counts - The trial judge found violations of B's ss. 8, 9 and 10(b) Charter rights and excluded the gun from evidence under s. 24(2) - As a result, he acquitted the accused on all counts without a trial on the merits - The Crown appealed - The Ontario Court of Appeal ordered a new trial on the basis that the accused's Charter rights were not violated - Alternatively, the court would not have excluded the gun from evidence under s. 24(2) - The officers acted in good faith and the charges were very serious - They involved a loaded handgun in the possession of a student on school property - See paragraphs 74 to 82.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 253

Abuse of process - What constitutes - [See Civil Rights - Topic 3157.4 ].

Cases Noticed:

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(3d) 481, refd to. [para. 31].

R. v. Powell (2000), 35 C.R.(5th) 89 (Ont. C.J.), not folld. [para. 33].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1; 76 C.C.C.(3d) 481, refd to. [para. 37].

R. v. C.R.H. (2003), 173 Man.R.(2d) 113; 293 W.A.C. 113; 2003 MBCA 38, folld. [para. 47].

R. v. Grafe (1987), 22 O.A.C. 280; 36 C.C.C.(3d) 267 (C.A.), refd to. [para. 52].

R. v. Hall (R.) (1995), 79 O.A.C. 24; 22 O.R.(3d) 289 (C.A.), refd to. [para. 52].

R. v. Rajaratnam (M.) (2006), 397 A.R. 126; 384 W.A.C. 126 (C.A.), refd to. [para. 52].

R. v. Orellana, [1999] O.J. No. 5746 (C.J.), refd to. [para. 63].

R. v. Grant (D.) (2006), 213 O.A.C. 127; 209 C.C.C.(3d) 250 (C.A.), leave to appeal granted [2007] 372 N.R. 398, folld. [para. 74].

Counsel:

Christopher Webb, for the appellant;

Daniel A. Stein, for the respondent.

This appeal was heard on June 22, 2007, by Moldaver, MacPherson and Cronk, JJ.A., of the Ontario Court of Appeal. Moldaver, J.A., delivered the following decision for the court on September 5, 2007.

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42 practice notes
  • R. v. Le, 2019 SCC 34
    • Canada
    • Supreme Court (Canada)
    • 31 Mayo 2019
    ...the detention can be justified upon appropriate grounds: R. v. Grafe (1987), 36 C.C.C. (3d) 267 (Ont. C.A.), at p. 271; R. v. L.B., 2007 ONCA 596, 86 O.R. (3d) 730 at paras. 51-59; Grant, at paras. 26, 35-41. [para. 26 [233]           &......
  • Table of cases
    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • 23 Junio 2020
    ...556 R v Layton, 2009 SCC 36.................................................................................... 533 R v LB, 2007 ONCA 596, 86 OR (3d) 730, 227 OAC 132 .......................... 103, 238 R v Le, 2019 SCC 34, 434 DLR (4th) 631, 375 CCC (3d) 431 ............24, 81, 85–86, 87, ......
  • Search and Seizure
    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • 23 Junio 2020
    ...115; and R v Gambilla , 2015 ABQB 40 were all cases where the accused was found to have no remaining privacy interest. See also R v LB , 2007 ONCA 596, where the accused was asked who owned a satchel sitting near him and replied “I don’t know,” when as a matter of fact it was his: he was fo......
  • Other Investigative Powers
    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • 23 Junio 2020
    ...Criminal Reports (6th) 88 [Quigley, “Was It Worth the Wait?”] for the same opinion. 101 See, for example, H(CR) , above note 97; R v LB , 2007 ONCA 596; or Tammie , above note 97. Other Investigative Powers 239 they were doing made it less likely there was a Charter violation. The majority’......
  • Request a trial to view additional results
35 cases
  • R. v. Le, 2019 SCC 34
    • Canada
    • Supreme Court (Canada)
    • 31 Mayo 2019
    ...the detention can be justified upon appropriate grounds: R. v. Grafe (1987), 36 C.C.C. (3d) 267 (Ont. C.A.), at p. 271; R. v. L.B., 2007 ONCA 596, 86 O.R. (3d) 730 at paras. 51-59; Grant, at paras. 26, 35-41. [para. 26 [233]           &......
  • R. v. Nodrick (S.D.), (2010) 260 Man.R.(2d) 198 (QB)
    • Canada
    • Manitoba Court of Queen's Bench of Manitoba (Canada)
    • 26 Mayo 2010
    ...579, the court stated at para. 35: "35 In Nesbeth the court refers at paragraph 23 to another of its recent decisions, R. v. B. (L.) , 2007 ONCA 596. In that case, the court held that the accused precluded himself from relying on s. 8 of the Charter when he responded to the police that he d......
  • R. v. Caron (D.W.), (2011) 299 B.C.A.C. 217 (CA)
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • 10 Febrero 2011
    ...253 O.A.C. 358; 2009 SCC 34, refd to. [para. 2]. R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 17]. R. v. L.B. (2007), 227 O.A.C. 132; 227 C.C.C.(3d) 70; 2007 ONCA 596, refd to. [para. R. v. Clark (D.M.), [2005] 1 S.C.R. 6; 329 N.R. 10; 208 B.C.A.C. 6; 344 W.A.C. 6; 2005 ......
  • R. v. Harrison (B.), (2009) 253 O.A.C. 358 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • 9 Diciembre 2008
    ...factor. Recently, in a similar case in which an officer searched a bag after a young man denied the bag was his, R. v. L.B. (2007), 86 O.R.(3d) 730 (C.A.), Moldaver, J.A., observed at para. 71: 'Having disclaimed any privacy interest in the bag, the respondent effectively precluded himself ......
  • Request a trial to view additional results
7 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • 23 Junio 2020
    ...556 R v Layton, 2009 SCC 36.................................................................................... 533 R v LB, 2007 ONCA 596, 86 OR (3d) 730, 227 OAC 132 .......................... 103, 238 R v Le, 2019 SCC 34, 434 DLR (4th) 631, 375 CCC (3d) 431 ............24, 81, 85–86, 87, ......
  • Search and Seizure
    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • 23 Junio 2020
    ...115; and R v Gambilla , 2015 ABQB 40 were all cases where the accused was found to have no remaining privacy interest. See also R v LB , 2007 ONCA 596, where the accused was asked who owned a satchel sitting near him and replied “I don’t know,” when as a matter of fact it was his: he was fo......
  • Other Investigative Powers
    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • 23 Junio 2020
    ...Criminal Reports (6th) 88 [Quigley, “Was It Worth the Wait?”] for the same opinion. 101 See, for example, H(CR) , above note 97; R v LB , 2007 ONCA 596; or Tammie , above note 97. Other Investigative Powers 239 they were doing made it less likely there was a Charter violation. The majority’......
  • Table of cases
    • Canada
    • Irwin Books Youth Criminal Justice Law. Third Edition
    • 18 Junio 2012
    ...297 R. v. L.A.B., [2007] O.J. No. 4473, 2007 ONCJ 538 ......................682, 686–87, 689 R. v. L.B. (2007), 86 O.R. (3d) 730, 49 C.R. (6th) 245, [2007] O.J. No. 3290 (C.A.) ................................................................... 236–37 R. v. L.B. (2008), 236 O.A.C. 371, [200......
  • Request a trial to view additional results

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