R. v. Edwards, [1996] 1 S.C.R. 128 (1996) - Case Law - VLEX 37669005

R. v. Edwards, [1996] 1 S.C.R. 128 (1996)

Docket Number:24297
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R. v. Edwards, [1996] 1 S.C.R. 128

Calhoun Edwards Appellant v.

Her Majesty The Queen Respondent

Indexed as: R. v. Edwards

File No.: 24297.

1995: June 1; 1996: February 8.

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Evidence -- Admissibility -- Search of apartment of third party -- Real evidence seized and admitted -- Whether or not accused can challenge admission of evidence obtained as a result of a search of third party's premises -- Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

The accused was convicted of possession of drugs for purposes of trafficking. He had been suspected of drug dealing out of his car using a cellular phone and of keeping the drugs at his residence or at his girlfriend's apartment. The police arrested him on a traffic offence. Two officers later called at his girlfriend's apartment and gained her cooperation through a number of statements, some of which were lies and half-truths -- the evidence was conflicting as to whether they were made before or after the officers were admitted to the apartment. Once inside, the accused's girlfriend directed them to the location of a significant cache of drugs. She was arrested a short time later but the charges against her were later dropped. At no time prior to being taken into custody was she advised of her right to refuse entry to the police or of her right to counsel. At the police station, she gave a statement naming the accused as the person who put the drugs in her apartment. At trial and on appeal, the accused denied being the owner of the drugs. The accused's appeal from conviction was dismissed with a dissenting opinion which found a reasonable expectation of privacy giving rise to the possibility of an infringement of his s. 8 Charter rights against unreasonable search or seizure. The appeal as of right to this Court was limited to this issue.

Held: The appeal should be dismissed.

Per Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: Several principles pertain to the s. 8 right to be secure against unreasonable search or seizure. A claim for relief under s. 24(2) of the Charter can only be made by the person whose Charter rights have been infringed. Like all Charter rights, s. 8 is a personal right. It protects people and not places. The right to challenge the legality of a search depends upon whether the accused had a reasonable expectation of privacy, and if so, whether the search by the police was conducted reasonably. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. The factors to be considered may include: (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; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.

The accused had no privacy interest in the goods seized as he had denied that the drugs were his. He demonstrated no expectation of privacy in his girlfriend's apartment which was the only other relevant privacy interest. His girlfriend described him as "just a visitor" who stayed over occasionally. He contributed nothing to the rent or household expenses and had no authority to regulate access to the premises.

The police conduct did not affect a personal right of the accused. It was accordingly not necessary to consider whether the accused could contest the admissibility of the evidence pursuant to s. 24(2) of the Charter or whether the accused's girlfriend did in fact consent to the search of her apartment.

The reasonable expectation of privacy concept has worked well in Canada. It has proved to be reasonable, flexible, and viable and should not be abandoned in favour of the discredited rule of automatic standing.

Per La Forest J.: While concurring with the majority in the result, disagreement with their reasons was expressed on the ground that their effect was to diminish drastically the public's interest in being left alone, guaranteed by s. 8 of the Charter, in a manner inconsistent with previous statements of this Court, which were not addressed in argument.

The appeal should be dismissed because it is not properly before the Court as of right. The dissent in the Court of Appeal dealt only with whether, on the facts as found by the trial judge, the accused had a reasonable expectation of privacy in his girlfriend's apartment. The formal order cannot be read as expanding the basis of the dissent which is quite explicit. Standing raises a separate issue. The unsatisfactory state of the factual findings, which at best indicate a constructive break-in of the accused's girlfriend's apartment, makes this an unsuitable case to deal with broad issues regarding the ambit of the protection accorded the public under s. 8 of the Charter.

Per L'Heureux-Dubé J.: The reasons and result of Cory J. were substantially agreed with. The issue of the relevance of a breach of a third-party Charter right, however, did not arise in this case as this was an appeal as of right. The dissent in the Court of Appeal dealt only with whether, on the findings of the trial judge, the accused had a reasonable expectation of privacy in his girlfriend's apartment. The formal order cannot be read as expanding the basis of the dissent on the issue of standing as the reasons of the dissent are very explicit. Standing is quite a separate argument which was not dealt with in the Court of Appeal judgment.

Per Gonthier J.: The appeal should be dismissed as not properly before the Court as of right. The dissent in the Court of Appeal was as to whether the accused had a reasonable expectation of privacy. The views of Cory J. that he did not were shared.

Cases Cited

By Cory J.

Considered: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Thompson, [1990] 2 S.C.R. 1111; referred to: R. v. Pugliese (1992), 71 C.C.C. (3d) 295; Katz v. United States, 389 U.S. 347 (1967); R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Plant, [1993] 3 S.C.R. 281; Rawlings v. Kentucky, 448 U.S. 98 (1980); Alderman v. United States, 394 U.S. 165 (1969); Rakas v. Illinois, 439 U.S. 128 (1978); United States v. Salvucci, 448 U.S. 83 (1980); R. v. Sandhu (1993), 82 C.C.C. (3d) 236; R. v. Rahey, [1987] 1 S.C.R. 588; United States v. Gomez, 16 F.3d 254 (1994); Jones v. United States, 362 U.S. 257 (1960).

By La Forest J.

Considered: R. v. Dyment, [1988] 2 S.C.R. 417; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Thompson, [1990] 2 S.C.R. 1111; referred to: Jones v. United States, 362 U.S. 257 (1960); Katz v. United States, 389 U.S. 347 (1967); Rakas v. Illinois, 439 U.S. 128 (1978); R. v. Duarte, [1990] 1 S.C.R. 30.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7, 8, 9, 10, 11, 24.

Highway Traffic Act, R.S.O. 1990, c. H.8, s. 217(2).

Narcotic Control Act, R.S.C., 1985, c. N-1, s. 4(2).

Authors Cited

Amsterdam, Anthony G. "Perspectives On The Fourth Amendment" (1974), 58 Minn. L. Rev. 349.

Dawe, Jonathan. "Standing to Challenge Searches and Seizures Under the Charter: The Lessons of the American Experience and Their Application to Canadian Law" (1993), 52 U.T. Fac. L. Rev. 39.

Doernberg, Donald L. "`The Right of the People': Reconciling Collective and Individual Interests Under the Fourth Amendment" (1983), 58 N.Y.U. L. Rev. 259.

Dworkin, Roger B. "Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering" (1973), 48 Ind. L.J. 329.

Macdonald, David A., Jr. "Standing to Challenge Searches and Seizures: A Small Group of States Chart Their Own Course" (1990), 63 Temp. L. Rev. 559.

The Oxford English Dictionary, vol. 12, 2nd ed. Prepared by J. A. Simpson and E. S. C. Weiner. Oxford: Clarendon Press, 1989, "privacy".

APPEAL from a judgment of the Ontario Court of Appeal (1994), 91 C.C.C. (3d) 123, 19 O.R. (3d) 239, 22 C.R.R. (2d) 29, 73 O.A.C. 55, 34 C.R. (4th) 113, dismissing an appeal from conviction by Downie Prov. J. Appeal dismissed.

Keith E. Wright and Peter B. Hambly, for the appellant.

Robert W. Hubbard and Joseph DeFilippis, for the respondent.

The judgment of Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ. was delivered by

1 Cory J. -- What rights does an accused person have to challenge the admission of evidence obtained as a result of a search of a third party's premises? That is the question that must be resolved on this appeal.

Factual Background

2 As a result of receiving information that the appellant was a drug trafficker operating out of his car using a cellular phone and a pager, the police placed him under surveillance. They were told that he had drugs either on his person, at his residence or at the apartment occupied by his girlfriend, Shelly Evers. At the time, Ms. Evers was an 18-year-old student in grade 11 who lived alone.

3 On the day of his arrest, the police observed the appellant drive Ms. Evers' vehicle from a residence to her apartment. The appellant entered the apartment and stayed there for a brief period of time. Shortly after he left, he was stopped by the police. They knew his driver's licence was under suspension and that a person driving while his or her licence is under suspension may be arrested without a warrant (pursuant to the provisions of the Highway Traffic Act, R.S.O. 1990, c. H.8, s. 217(2)).

4 The police saw the appellant speaking on the cellular phone in the car. When they approached...

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