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Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - Direct Interest. R. v. Mohamed [standing to challenge warrant/Edwards 1996 test]
In R. v. Mohamed (Ont CA, 2024) the Divisional Court dismissed a criminal appeal against a court finding that the appellant did not have standing to challenge a search warrant:[7] Mr. Mohamed submits that the trial judge erred in finding that he did not have standing to challenge the search of Ms. Goodale’s house because he failed to follow the Supreme Court’s decision in R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696. Specifically, in deciding whether Mr. Mohamed had standing, the trial judge should have relied on the Crown’s theory of the case that Mr. Mohamed resided with Ms. Goodale at the house, as set out in the ITO.
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[12] In advance of the trial, Ms. Goodale and Mr. Mohamed brought an application to challenge the search warrant under s. 8 of the Charter of Rights and Freedoms. ....
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[16] The trial judge granted Ms. Goodale’s application but found that Mr. Mohamed did not have standing to challenge the search warrant. Following the application, the trial judge gave a brief oral explanation for this conclusion, stating that, based on the Supreme Court’s decision in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, it was clear that Mr. Mohamed did not have standing to bring the Charter application and that he, therefore, could not challenge the admissibility of anything seized at the Leeming Street house.
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[19] We are satisfied that the trial judge did not make any legal errors in his approach to the issue of Mr. Mohamed’s standing and that his conclusion on the issue was supported by the evidence before him. In Edwards, the Supreme Court considered the rights of an accused to challenge a warrant obtained to search the premises of a third party. Cory J. explained that, in order to establish a violation of s. 8 of the Charter and obtain relief under s. 24(2), an accused must (1) establish standing by showing a reasonable expectation of privacy, and (2) if such an expectation is established, demonstrate that the search was conducted unreasonably: at para. 45. In deciding whether an accused has established a reasonable expectation of privacy, trial judges are to consider the totality of the circumstances, including the following factors:(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation. ....
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[21] Mr. Mohamed argues that Edwards must be applied in conjunction with Jones, and that the trial judge erred in failing to consider and apply Jones. In Jones, the Supreme Court dealt with the evidentiary burden on an accused challenging a search warrant under s. 8 of the Charter. The search in that case involved text messages. The Crown’s theory, as set out in the ITO, was that Mr. Jones had authored the text messages. For the purpose of challenging the search warrant, Mr. Jones sought to rely on the evidence in the ITO to argue that he had a reasonable expectation of privacy in the text messages. He wanted to avoid presenting his own evidence on the application. This strategy was intended to allow Mr. Jones to challenge the search warrant without admitting authorship, which otherwise would amount to admitting the actus reus of the offence with which he had been charged: at paras. 16, 23.
[22] Côté J., for the majority, held that Mr. Jones should be able to rely on the Crown’s theory to mount his s. 8 challenge and that he did not have to provide his own evidence on the application: at paras. 9, 32-33. She stated, at para. 32, that, despite the evidentiary burden being on the applicant to establish a breach of his Charter rights, “where the alleged Crown facts, if taken to be true, would establish certain elements of the applicant's s. 8 claim, he or she need not tender additional evidence probative of those facts in order to make out those same elements.” She reasoned that permitting applicants to rely on the evidence in an ITO to establish a reasonable expectation of privacy solves the dilemma that applicants like Mr. Jones would otherwise face when evidence supporting their position on the Charter application could subsequently incriminate them at trial. This is consistent with the principle against self-incrimination: Jones, at paras. 29-31. As this court stated in R. v. Labelle, 2019 ONCA 557, 379 C.C.C. (3d) 270, at para. 24, “[t]he overriding point of Jones is that an accused should not be placed in the position of being forced to compromise his or her substantive defence to criminal charges in order [to] assert standing to challenge the reasonableness of a search.”
[23] Mr. Mohamed relies on Jones to argue that, on his s. 8 application, the trial judge erred in not accepting as true the Crown’s theory that he was in a common law relationship with Ms. Goodale and that he resided with her on Leeming Street. We disagree. The trial judge did not err. Jones does not stand for the proposition that a trial judge must accept the Crown’s theory of the case in all circumstances when assessing an accused’s reasonable expectation of privacy. Rather, as explained by this court in Labelle, at para. 31:The point of Jones is that the accused can rely on the Crown theory to establish certain facts relevant to their s. 8 claim. The trial judge is still required to assess those facts in the “totality of the circumstances” to determine whether the accused had a reasonable expectation of privacy in a particular territorial space [Emphasis added.]
See also: R. v. Greer, 2020 ONCA 795, 397 C.C.C. (3d) 40, at para. 85. . R. v. Campbell [reasonable expectation of privacy]
In R. v. Campbell (SCC, 2024) the Supreme Court of Canada dismissed a criminal appeal, this from a dismissal of an Ontario Court of Appeal, and that from a trial judge's finding that convicted the defendant "of trafficking and possession offences under the CDSA and sentenced him to a term of imprisonment".
Here the court considers whether the defendant had a 'reasonable expectation of privacy' under Charter s.8:[34] Mr. Campbell has standing if he establishes that he had a reasonable expectation of privacy in his text message conversation with who he thought was Mr. Gammie, in which case the police conducted a “search” under s. 8 of the Charter. It would then be necessary to consider whether the search was “unreasonable” under s. 8 of the Charter (see R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 35-36; Marakah, at paras. 10 and 12; R. v. Bykovets, 2024 SCC 6, at para. 30).
[35] As I will explain, I agree with the Court of Appeal that Mr. Campbell had a reasonable expectation of privacy in his text message conversation, and he therefore has standing to allege that the police infringed his rights under s. 8 of the Charter.
(1) Legal Principles
[36] Section 8 of the Charter guarantees that “[e]veryone has the right to be secure against unreasonable search or seizure.” The main purpose of s. 8 is to protect the right to privacy from unjustified state intrusion (Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 160; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 291; Bykovets, at para. 29).
[37] The right to privacy is foundational to a free and democratic society. It is essential to “individual dignity, autonomy, and personal growth” (Bykovets, at para. 29; see also Plant, at p. 292; R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 38), and to “the relationship between the state and the citizen” (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 12). In an oft-quoted passage in R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at pp. 427-28, La Forest J. wrote that “[t]he restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.” A similar sentiment was echoed by Binnie J. in Tessling, who observed that “[f]ew things are as important to our way of life as the amount of power allowed the police to invade the homes, privacy and even the bodily integrity of members of Canadian society without judicial authorization” (para. 13).
[38] A central preoccupation of this Court’s s. 8 jurisprudence has been to balance the often competing aims of personal privacy and the public interest. This quest for balance reflects the constitutional imperative in s. 8 itself, which, expressed negatively, protects against an unreasonable search and seizure or, expressed positively, safeguards only a reasonable expectation of privacy (Hunter, at p. 159). In Hunter, Dickson J., as he then was, explained that s. 8 requires “an assessment . . . as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement” (pp. 159‑60). In Tessling, Binnie J. added that “[t]he community wants privacy but it also insists on protection. Safety, security and the suppression of crime are legitimate countervailing concerns” (para. 17; see also Plant, at pp. 291-92).
[39] Section 8 of the Charter is engaged where a person has a “reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access” (Marakah, at para. 10, quoting Cole, at para. 34). A claimant seeking standing to argue that their rights under s. 8 were infringed must show that they subjectively expected the subject matter of the search would remain private, and that their expectation was objectively reasonable having regard to “the totality of the circumstances” (Marakah, at para. 10, quoting R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at paras. 31 and 45; see also R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at paras. 17-18; Jones, at para. 13). In making this evaluation, courts are guided by four lines of inquiry: (1) the subject matter of the alleged search; (2) whether the claimant had a direct interest in the subject matter; (3) whether the claimant had a subjective expectation of privacy in the subject matter; and (4) whether the claimant’s subjective expectation of privacy was objectively reasonable (Marakah, at para. 11; Cole, at para. 40; Spencer, at para. 18; Bykovets, at para. 31).
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