Criminal Law – Drug Offences – Possession for the Purpose of Trafficking
Constitutional Law – Charter of Rights, Section 8
Statutes – Interpretation – Residential Tenancies Act, Section 65
The accused was charged with having possession of currency believed to be proceeds of crime contrary to s. 354(1) and 355 of the Criminal Code and 4 counts of possession of different drugs for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. Notice was given by the accused of an application to have exhibits excluded because of violations of ss. 8 and 9 of the Charter. Counsel for the accused advised that the only issues to be determined were the validity of the search and seizure and the question of admissibility of the exhibits. If possession was established, the accused did not dispute possession for the purpose of trafficking or that the money seized was the proceeds of crime. The accused rented an apartment pursuant to a 12-month lease. On the day that the lease expired, the building manager advised the rental company that the accused had not yet vacated although he had told her that he would be out of the suite by noon. The manager was instructed to tell the accused to leave and if he had not moved within one hour, his belongings would be removed. At 11:30 am the manager told the accused that he had one hour to vacate or his possessions would be moved into the common hallway of the building. The accused laughed, said that was fine and left the building. As the accused had not returned by 1:30, the manager instructed her staff to start moving the furniture. They discovered a large baggie of what appeared to be marihuana under a futon in the living room. The manager directed the staff to return the furniture to the suite, locked the apartment and called the police. When they arrived, they asked who had lawful possession of the apartment and the manager advised that the landlord had, as the lease had expired. She unlocked the door at their request and they entered and stayed in the suite for five minutes. They found the bag of marihuana and a box of cash. The accused returned during this period and was arrested, and when searched, the police found a wad of cash in his pocket. The accused was advised of his right to counsel. The investigating officer returned to the police station where he filed the marihuana and cash in the exhibit room. Assistance was requested from the Drug Unit and a search warrant was obtained and executed. Exhibits related to that search included cell phones, a grinder, plastic bags and several bags of cocaine and ecstasy. The Crown argued that at the time the police entered the suite, the accused did not have a reasonable expectation of privacy as he had indicated his intention to move and had granted permission to the landlord to move his possessions. He therefore was not an overholding tenant within the meaning of The Residential Tenancies Act. Therefore the warrantless search was authorized by the consent of the landlord. The defence argued that the search was unreasonable and breached the accused’s s. 8 Charter right, which warranted the exclusion of the exhibits. The accused maintained an expectation of privacy in the suite as an overholding tenant and pursuant to s. 65 of the Act, the landlord was only entitled to enter after obtaining a court order for possession. The arrest of the accused in his home without a Feeney warrant constituted a violation of his s. 9 Charter right.
HELD: The Court held that the initial warrantless search was unreasonable but that because the lease had expired and the accused had been told that he must vacate and he appeared to acquiesce, the Court found that the accused did not hold the same expectation of privacy as he would have as a valid leaseholder. The Court found that the arrest of the accused without a warrant was not a violation of s. 9 of the Charter. The police entered the apartment at the behest of the landlord with the understanding that the accused was no longer entitled to inhabit it. The officers were directed to evidence of an indictable offence. Pursuant to s. 495(1) of the Criminal Code, the police were lawfully in the premises and properly seized the evidence and therefore the arrest was lawful. The grounds to obtain the subsequent search warrant were valid and the seizure of time pursuant to that warrant was also lawful. The Court would not have excluded the evidence in any case.