Jul 17, 2015

Not so Black and White

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

Merith White lived in a condominium unit. The police searched it. Evidence obtained during that search led to him being charged with drug trafficking and possession of stolen property. He was acquitted - as a result of evidence being excluded under section 24(2) after the trial judge found that the search violated section 8. The Crown appealed. That appeal was dismissed: 2015 ONCA 508.

White lived in a condominium unit. It was one of 10 in a four story building. That unit was visited by Yianni Papadolias. Unfortunately for White, the police had Papadolias under surveillance via GPS tracking. The police suspected Papadolias was involved in drug trafficking.

As a result of that information, an officer entered the condominium unit on three occasions. On the first occasion he followed a postal worker in through the front door which was otherwise locked. On the second and third occasions he entered an doorway that would normally be locked, but for reasons not fully explained, the door was not locked and the officer entered. As a result of observations made during those entries the police obtained a warrant to enter White's residence.

At trial White successfully excluded the results of the search on the basis that it violated section 8. The Crown appealed.

On appeal the court cited Edwards and noted the factors set out therein. The court also recognized that there were "lower courts" that had found no expectation of privacy in "common areas of multi-unit buildings" - but the court rejected the applicability of those cases: 


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: see e.g. R. v. Piasentini, [2000] O.J. No. 3319 (S.C.J.); R. v. Simpson, [2005] O.J. No. 5056 (S.C.J.), rev’d on other grounds 2007 ONCA 793 (CanLII), 231 O.A.C. 19; R. v. Nguyen, 2008 ABQB 721 (CanLII),462 A.R. 240, aff’d 2010 ABCA 146 (CanLII), 477 A.R. 395; and R. v. Verrett, 2013 ABQB 658 (CanLII), 574 A.R. 212. 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. [@44].

Having rejected the applicability of those cases, the court offered the following (in part) as the basis for concluding that White had a reasonable expectation of privacy in the common areas and thus the entry thereto constituted a violation of section 8:

Although the respondent 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 of his building several times without permission or invitation and investigating at their leisure. It was reasonable for him to assume that although access to the building’s storage area was not regulated, it was not open to the general public. And it was reasonable for him to assume that people would not be hiding in stairwells to observe the comings and goings and overhear the conversations and actions within his unit.
In any event, the fact that a relatively large number of people may have access to a building’s common areas need not operate to eliminate a reasonable expectation of privacy. It is one thing to contemplate that neighbours and their guests, all of whom may be strangers to another resident, might be present in the common areas of a building, but another to say that a resident has no reasonable expectation of privacy as a result. An expectation of privacy may be attenuated in particular circumstances without being eliminated. [@47-48].

The court further upheld the trial judge's conclusion that the exclusion of the evidence under 24(2) was no in error.

With respect, it is not easy to accept these conclusions.

First, to the extent there was any expectation of privacy, it was significantly diminished and not breached by the police. The court does not discuss explicitly the nature of the privacy interest at play, but it seems clear that it must be territorial. Here, however, the territorial privacy is one that the court acknowledged was accessible by others - including strangers to the accused. Moreover, while the police did not have permission to access the area, they did not do anything illegal to access the area. Indeed, on two occasions, they entered through an unlocked door. In short, while territorial privacy interests can be significant, here, where they are impacted by strangers and accessed so easily, the nature (if any) of such an expectation is significantly diminished.

Second, applying the Edwards factors does not reveal an objective basis for the expectation: (i) the accused was not present at the time; (ii) the accused could permit access, but had no real control over access; (iii) the accused had no "ownership" over the common areas; (iv) while he did have historical use over this area, many others did as well; (v) the accused has no real ability to regulate access (other than to permit). What remains are subjective and objective assessments of the accused's expectation of privacy. In light of these it is hard to accept that there is an objective expectation of privacy from plain view observations in such common areas.

Third, even if there was a breach, it is not obvious that the evidence should be excluded. If the above analysis is, at least, reasonable, the seriousness of the breach must be minimal. The evidence obtained is reliable. The offence is serious. In these circumstances, exclusion should not follow.