R. v. White (M.), 2015 ONCA 508

• Judge: Simmons, D. Brown and Huscroft, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 09, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 508;(2015), 336 O.A.C. 252 (CA)

R. v. White (M.) (2015), 336 O.A.C. 252 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JL.007

Her Majesty the Queen (appellant) v. Merith White (respondent)

(C56966; 2015 ONCA 508)

Indexed As: R. v. White (M.)

Ontario Court of Appeal

Simmons, D. Brown and Huscroft, JJ.A.

July 7, 2015.

Summary:

The accused was acquitted on charges of drug trafficking and possession of property obtained by crime. The trial judge found that the accused's s. 8 Charter rights were violated because the police made three surreptitious entries into the common areas of his 10 unit condominium building to gather evidence, which they used to obtain a warrant and to arrest the accused. The Crown appealed, arguing that the accused had no reasonable expectation of privacy in the common areas of the building.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: For a decision by the British Columbia Court of Appeal on the expectation of privacy issue - see R. v. Webster (P.A.) (2015), 374 B.C.A.C. 129; 642 W.A.C. 129; 2015 BCCA 286.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The accused was acquitted on charges of drug trafficking and possession of property obtained by crime - The trial judge found that the accused's s. 8 Charter rights were violated because the police made three surreptitious (warrantless) entries into the common areas of his 10 unit condominium building to gather evidence, which they used to obtain a warrant to arrest the accused - The trial judge excluded the evidence under s. 24(2) of the Charter - The Crown appealed, arguing that the accused had no reasonable expectation of privacy in the common areas of the building - The Ontario Court of Appeal disagreed with the Crown's argument and dismissed the appeal - The trial judge was correct in concluding that the accused had a reasonable expectation of privacy in the common areas of his condominium building - The police searches violated the accused's s. 8 Charter rights - The trial judge's s. 24(2) analysis was entitled to deference - There was no basis to interfere with his conclusion - See paragraphs 31 to 69.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - A trial judge found that an accused's s. 8 Charter rights were violated because the police made three surreptitious entries into the common areas of his 10 unit condominium building to gather evidence, which they used to obtain a warrant and to arrest the accused - The Crown appealed, arguing that the trial judge erred in failing to conduct the thorough analysis as set out in R. v. Edwards (SCC 1996) - The Ontario Court of Appeal stated that "It is clear that lower courts have rendered decisions rejecting reasonable expectation of privacy claims in several cases involving the common areas of multi-unit buildings ... But the lesson from Edwards is that the 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" - See paragraphs 29 and 44.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The Ontario Court of Appeal discussed the reasonable expectation of privacy in the common area of a multi-unit condominium building - The court stated, inter alia, that "The reasonable expectation of privacy does not establish a zone for the protection of criminal activity in the common areas of multi-unit buildings, but neither does it permit the police to enter common areas of those buildings at any time and for any reason. The reasonable expectation of privacy is a concept which protects those interests that courts think ought to be protected having regard to the interests at stake in particular circumstances ... Some limits on police activity are necessary if privacy is to be protected. There is nothing 'perverse' about providing a measure of privacy protection to the many Canadians who live in multi-unit dwellings. They, no less than those who live in detached homes, are entitled to the protection against unreasonable search and seizure the Charter provides. In any event, it is not an all or nothing choice. A balance must be struck between law enforcement objectives and privacy in modern urban life. Cases such as Laurin and Thomsen demonstrate that the police have considerable ability to investigate crime in multi-unit buildings. But they do not have carte blanche" - See paragraphs 50 and 51.

Civil Rights - Topic 1555

Property - Land - Search of private land and buildings - [See all Civil Rights - Topic 1508 ].

Civil Rights - Topic 1559

Property - Land - Search and seizure by police - [See all Civil Rights - Topic 1508 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See first Civil Rights - Topic 1508 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See first Civil Rights - Topic 1508 ].

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 25].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 29].

R. v. Laurin (R.R.) (1997), 98 O.A.C. 50; 113 C.C.C.(3d) 519 (C.A.), dist. [para. 22].

R. v. Thomsen (2005), 72 W.C.B.(2d) 349 (Ont. Sup. Ct.), affd. 2007 ONCA 878, dist. [para. 34].

R. v. Piasentini, [2000] O.J. No. 3319 (C.J.), refd to. [para. 44].

R. v. Simpson (C.), [2005] O.J. No. 5056 (Sup.Ct .J.), revsd. (2007), 231 O.A.C. 19; 2007 ONCA 793, refd to. [para. 44].

R. v. Nguyen (T.V.) et al. (2008), 462 A.R. 240; 2008 ABQB 721, affd. (2010), 477 A.R. 395; 483 W.A.C. 395; 2010 ABCA 146, refd to. [para. 44].

R. v. Verret (R.C.) (2013), 574 A.R. 212; 2013 ABQB 658, refd to. [para. 44].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 50].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 144 D.L.R.(4th) 193, refd to. [para. 54].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 55].

R. v. Mian (M.H.) (2014), 462 N.R. 1; 580 A.R. 1; 620 W.A.C. 1; 2014 SCC 54, refd to. [para. 63].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 24(2) [para. 3].

Counsel:

Emilie Taman and Jim Marshall, for the appellant;

Andrew Burgess, for the respondent.

This appeal was heard on April 9, 2015, before Simmons, D. Brown and Huscroft, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Huscroft, J.A., on July 7, 2015.