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Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - Test. 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. Maric [uses Edwards 1996 test]
In R. v. Maric (Ont CA, 2024) the Ontario Court of Appeal dismissed several merged criminal appeals, here on Charter s.8 'reasonable expectation of privacy' grounds:(b) There Was No Reasonable Expectation of Privacy
[105] The application judge applied the factors set out by the Supreme Court in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 45, that should be considered in assessing whether there is a reasonable expectation of privacy:(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. ....
[111] The application judge distinguished this case from R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32, where this court found that an accused had a reasonable expectation of privacy in common areas of his building.
[112] In White, a police officer, surreptitiously and without a warrant, entered the common areas of a building where the accused owned a unit, which led to a seizure and drug charges. The officer entered the locked building through a defective door without any owners’ prior consent or knowledge, walked through the hallways, listened at the accused’s door, observed the comings and goings at the accused’s unit, and viewed the accused’s storage locker in the common storage area. The results of these observations were included in the ITO used to obtain a search warrant for the accused’s unit. The affiant of the ITO did not inform the issuing judge that the investigating officer had entered the locked building without permission. The accused applied successfully to exclude that evidence under s. 24(2) of the Charter on the basis that the police violated his rights under s. 8.
[113] On appeal, this court held that the trial judge did not err in finding that the accused had a reasonable expectation of privacy in the common areas of his condominium building. In its analysis, the court relied on the factors set out in Edwards, at para. 45.
[114] The court held, at para. 41, that there was no categorical rule for common areas in multi-unit buildings and that a nuanced, contextual approach is required. Relevant factors in White included that the building was small enough that a stranger’s presence would be noteworthy and that “[a]lthough the [accused] did not have absolute control over access to the building, it was reasonable for him to expect that the building’s security system would operate to exclude strangers, including the police, from entering the common areas several times without permission or invitation and investigating at their leisure”: at paras. 46-47.
[115] The application judge held that the situation before him, involving observations of the eighth-floor hallway, was distinct from the multiple police entries in common areas, observation of the inside of a storage locker and eavesdropping of conversations inside a condominium unit at issue in White.
[116] The application judge adopted the words of Huscroft J.A. in White, at para. 44, that the reasonable expectation of privacy analysis is contextual:[T]he lesson from Edwards is that a reasonable expectation of privacy is a context-specific concept that is not amenable to categorical answers. A number of considerations may be relevant in determining whether an expectation of privacy is reasonable in the context of particular multi-unit buildings, albeit that none of them is dispositive. The Edwards factors must be considered as a whole, having regard to the particular circumstances of each case. ....
(b) The application judge did not err in finding no reasonable expectation of privacy
[196] In his analysis of Mr. Eckstein’s reasonable expectation of privacy, the application judge referred to the following non-exhaustive factors set out by the Supreme Court in Edwards, at para. 45:(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. [197] In Edwards, these factors were used to consider whether the subject of a search had a reasonable expectation of privacy in his girlfriend’s apartment, in which he was described as “just a visitor.” According to the Supreme Court, Mr. Edwards demonstrated no expectation of privacy in his girlfriend’s apartment since he contributed nothing to the rent or household expenses and had no authority to regulate access to the premises.
[198] In this case, Mr. Eckstein argues that the application judge erred in concluding that, as “an exceptionally privileged guest,” he had no reasonable expectation of privacy. He submits that the application judge erred in rejecting categorically that a guest could have an objectively reasonable expectation of privacy.
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[210] The application judge’s reliance on White demonstrates his understanding that a reasonable expectation of privacy could arise over the common areas of an apartment building or condominium complex, but that context was important. While the application judge did not have the benefit of this court’s decision in Yu, we do not see the analysis in Yu as inconsistent with the application judge’s reasoning. In Yu, Tulloch J.A. (as he then was) described, at paras. 81-83 and 87, the privacy interests in common areas generally in these terms:The hallways are a different story. Under the White framework, in my view, the appellants had a reasonable expectation of privacy in the hallways of their respective buildings, although it was at the low end of the spectrum. White establishes that a contextual approach is required when applying the reasonable expectation of privacy analysis, and there is no categorical bar to a reasonable expectation of privacy in shared common areas.
Once inside an access-controlled condominium building, residents are entitled to expect a degree of privacy greater than what, for instance, they would expect when approaching the building from the outside. This results from the fact that anyone can view the building from the outside, but there is some level of control over who enters the building.
The level of expectation of privacy inside a condominium building will vary. The level of expectation of privacy is dependent on the likelihood that someone might enter a certain area of the building, and whether a person might reasonably expect a certain area to be subject to camera surveillance.
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On balance, the factors listed above establish a low, but reasonable expectation of privacy in these common areas. The buildings had strict security features designed to exclude outsiders, and the condominium rules at Joe Shuster Way barred non-owners and non-occupants from accessing the common areas unless accompanied by an owner or occupant. It was thus reasonable for the appellants to believe that the buildings’ security systems would operate to exclude the police from entering the common areas of the building multiple times without permission. [Emphasis added.] ....
[213] We do not read the application judge’s reasons as requiring strict security measures in order to establish a reasonable expectation of privacy. Rather, he considered the type and quality of security measures and noted that there were no exceptional security measures that would heighten any expectation of privacy. In Yu, for example, the strict security measures were a key factor in finding that there was a reasonable expectation of privacy in the condominium hallways. Furthermore, the application judge took into account that police did not have permission from building management to enter the building but found that this did not provide Mr. Shahin with a reasonable expectation of privacy. . R. v. Attard
In R. v. Attard (Ont CA, 2024) the Ontario Court of Appeal considered Charter s.8 ['search and seizure'] and s.24(2) ['exclusion of evidence'], here while assessing a CCC 489 issue regarding the seizure of a car's airbag deployment data in a Crown appeal.
Here the court focusses on the test for 'reasonable expectation of privacy':[61] At paras. 31-32 of El-Azrak, Fairburn A.C.J.O., writing for this court, summarized the legal framework - whatever the form of privacy is at issue – for whether someone has a reasonable expectation of privacy. That determination necessitates both a factual and a normative inquiry. The factual inquiry necessitates a command of all the circumstances in play in the case. The normative inquiry is broader in nature, with an eye to protecting that for which we ought to expect protection from a privacy perspective in a free and democratic society. The test for determining whether someone has a reasonable expectation of privacy asks the following:1. What is the subject matter of the search?
2. Does the accused have a direct interest in that subject matter?
3. Does the accused have a subjective expectation of privacy in the subject matter?
4. Would an expectation of privacy be objectively reasonable in the circumstances of the case? ....
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