R. v. Edwards,  1 S.C.R. 128
Calhoun Edwards Appellant
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.
By Cory J.
Considered: Hunter v. Southam Inc.,  2 S.C.R. 145; R. v. Thompson,  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,  1 S.C.R. 20; R. v. Wong,  3 S.C.R. 36; R. v. Plant,  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,  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,  2 S.C.R. 417; Hunter v. Southam Inc.,  2 S.C.R. 145; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission),  1 S.C.R. 425; R. v. Thompson,  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,  1 S.C.R. 30.
Statutes and Regulations Cited
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).
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.
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 the vehicle, they saw the appellant swallow an object wrapped in cellophane about half the size of a golf ball. The car doors were locked, and the appellant did not unlock them until he had swallowed the object. He was arrested for driving while his licence was under suspension and taken into custody. Evers' car was then towed to the vehicle pound.
5 It was conceded that the usual practice upon arresting a person for driving while under suspension was to impound the car and give the individual a ticket. It was unusual to take someone into custody and it was acknowledged that this procedure was adopted in order to facilitate the drug investigation.
6 The police suspected that there might be crack cocaine in Ms. Evers' apartment, but they did not consider that they had sufficient evidence to obtain a search warrant. After taking the appellant into custody, two police officers attended at the apartment. They made a number of statements to Evers, some of which were lies and others half‑truths, in order to obtain her cooperation. They advised her: (1) that the appellant had told them there were drugs in the apartment; (2) that if she did not cooperate, a police officer would stay in her apartment until they were able to get a search warrant; (3) that it would be inconvenient for them to get a search warrant because of the paperwork involved; and (4) that one of the officers would be going on vacation the following day and regardless of what they found in her apartment, she along with the appellant would not be charged.
7 There is conflicting evidence as to whether these statements were made before or after the officers were admitted to the apartment. Nonetheless, once inside, Ms. Evers directed them to a couch in her living room where she thought she had seen the appellant replacing a cushion a few days earlier. The cushion was removed, revealing a plastic bag containing six baggies of crack cocaine with a value of between $11,000 and $23,000. These were seized by the police. Twenty minutes later, they returned and arrested Ms. Evers. This they had been instructed to do by a superior officer after he had consulted a Crown Attorney. At no time prior to being taken into custody was Ms. Evers advised of her right to refuse entry to the police or of her right to counsel.
8 At the police station, Ms. Evers was questioned and in response, she gave a statement naming the appellant as the person who placed the drugs under the cushion of the couch in her apartment. She and the appellant were jointly charged under s. 4(2) of the Narcotic Control Act, R.S.C., 1985, c. N‑1, with possession of crack cocaine for the purpose of trafficking. Ms. Evers was then released. Charges against her were eventually dropped on the morning her trial was scheduled to begin.
9 On the evening of the arrest, the police attended at the vehicle pound and without a search warrant seized the cellular phone and pager used by the appellant. Then for several hours, they intercepted a number of calls from people ordering small amounts of crack cocaine from the appellant.
10 At the conclusion of the trial, the appellant was found guilty as charged. His appeal from conviction was dismissed by the Court of Appeal of Ontario, with Abella J.A. dissenting on the issue of the appellant's standing to assert his rights under s. 8 of the Canadian Charter of Rights and Freedoms in relation to the search of his girlfriend's apartment. The appeal to this Court is limited to that issue.
Ontario Court, Provincial Division (Downie Prov. J.)
11 A voir dire was held to determine the admissibility of the evidence obtained from Evers' apartment. The trial judge relied on the decision of the Ontario Court of Appeal in R. v. Pugliese (1992), 71 C.C.C. (3d) 295, as establishing that s. 8 of the Charter guaranteed a reasonable expectation of privacy for the occupant of a dwelling.
12 The trial judge stated that Ms. Evers' rights guaranteed by ss. 8 and 10(b) of the Charter had clearly been breached and that she could have sought a remedy pursuant to s. 24(2) for the exclusion of the evidence obtained as a result of the search.
13 With regard to the appellant, the trial judge observed that he considered Ms. Evers to be his girlfriend and was an "occasional visitor" to her apartment. Although he had been given a key and kept some of his personal effects there, he maintained a separate residence. The trial judge also noted that the appellant denied ownership of the drugs.
14 After reviewing the evidence, the trial judge concluded that the appellant had not discharged the burden of establishing that he had a reasonable expectation of privacy in Ms. Evers' apartment. As a result, he concluded that s. 24(2) of the Charter was not applicable and that the evidence was admissible.
15 The trial judge ruled that the seizure of the cellular phone and pager from Ms. Evers' vehicle was proper. He also held that the telephone calls which were intercepted, although hearsay, were admissible to show the nature of the business carried on by the appellant. These rulings were not disputed on appeal and are not in issue here.
Ontario Court of Appeal (1994), 91 C.C.C. (3d) 123, (McKinlay and Finlayson JJ.A. for the majority)
16 McKinlay J.A. noted that in claiming a breach of s. 8 of the Charter, the appellant had to demonstrate that his personal right to privacy was infringed by the police search of Evers' apartment. If the appellant was successful, then the state would bear the onus of establishing that its interests, in the circumstances, were superior to his.
17 Relying on the decision in Pugliese, supra, McKinlay J.A. ruled that the appellant had no proprietary or possessory interest in Evers' apartment. She stated at p. 136:
On the evidence, he was no more than an especially privileged guest. Ms. Evers could admit anyone to the apartment whom the appellant wished to exclude, and could exclude anyone he wished to admit.
18 McKinlay J.A. held that the lies and trickery were not used by police to gain entrance to the apartment, but only to get Ms. Evers' cooperation once they were inside. In any event, McKinlay J.A. stated, this conduct did not constitute an infringement of any Charter right of the appellant. Therefore, there was no basis for excluding the evidence pursuant to s. 24(2) of the Charter.
19 McKinlay J.A. then turned to the question of whether the manner in which the search was conducted amounted to an abuse of authority in violation of s. 7 of the Charter. She found that the tactics employed by the police to gain access to Ms. Evers' apartment were acceptable and therefore could not have vitiated the proceedings against the appellant. On the basis of the evidence which was properly admitted, she upheld the trial judge's conviction of the appellant.
Finlayson J.A. (concurring)
20 Finlayson J.A. also upheld the conviction of the appellant. He noted that three issues had been raised on the appeal relating to the legality of the search. The first was whether Evers had consented to the search. If she had, there would be no constitutional concern. Finlayson J.A. found that the trial judge had not made a finding on this issue and therefore, as an appellate judge, he was not in a position to substitute his own conclusion.
21 The second issue was whether the appellant had status to complain about the search. This issue would only arise if Ms. Evers had not consented to the search or was tricked or coerced into giving her consent. Finlayson J.A. concluded that on the state of the record, there was no basis for upsetting the conviction of the appellant by finding a s. 8 violation. He noted that there was a paucity of factual findings in the reasons of the trial judge, particularly with regard to the conduct of the police during the search. He held, however, that this was irrelevant to the privacy issue and only needed to be considered in the event that the trial judge was reversed on his finding that the appellant did not have standing to complain about the search of Ms. Evers' apartment.
22 In the opinion of Finlayson J.A., evidence regarding the manner in which the search was conducted also related to the third issue, namely whether, in the course of the search of Ms. Evers' apartment, there was an abuse of authority which violated s. 7 of the Charter. He concurred with McKinlay J.A. on this issue and held that the findings of the trial judge fell short of the language of intimidation and coercion necessary to elevate this argument to the level of a constitutional challenge.
Abella J.A. (in dissent)
23 Abella J.A. held that the trial judge erred in concluding that since the appellant had no legal right to the premises (that is to say, he did not live there and paid no rent), he had no standing to assert a privacy interest that could protect him from an unreasonable search of Ms. Evers' apartment.
24 It was her position that each arrangement must be looked at in its own context. While the legal title, time spent, and money invested in the premises might be among the factors to be considered when looking for a privacy interest, they were not determinative. Rather, it was the qualitative extent of the access and the character of the governing relationship that were the dominant indications of a reasonable expectation of privacy.
25 Abella J.A. found the decisive factor to be that Ms. Evers and the appellant had been together for three years, that he had been given a key and had "real unrestricted access" to the apartment, and that he occasionally stayed there. It was this element of unrestricted access which, in her opinion, distinguished this case from Pugliese, supra.
26 In her view, the quality of the appellant's access was more important than the frequency or the fact that the appellant was not a tenant. The appellant could come and go as he chose and depended on no one else's permission for entry. Abella J.A. also rejected the notion that entitlement to privacy was based on financial contribution. She concluded that as long as the appellant was in a relationship with Ms. Evers and had a key to the apartment, his privacy right attached to it whether he was physically present or not.
27 Abella J.A. then reviewed the circumstances of the search and found at p. 143 that "[t]he line between justifiable police conduct which seeks to enlist co‑operation, and unlawful conduct which seeks to compel it was clearly crossed in this case". She concluded that the admission of any evidence yielded by this deliberately unlawful conduct would bring the administration of justice into disrepute. Consequently, the evidence should have been excluded.
The Appellant's Reasonable Expectation of Privacy in Relation to Ms. Evers' Apartment
28 At the outset, I should say that I am in agreement with the conclusions of the majority and in substantial agreement with their reasons. In the ordinary course, I would have favoured dismissal of the appeal on that basis. However, in the circumstances it is appropriate to set out in a somewhat summary manner my own reasons for dismissing the appeal.
29 In Hunter v. Southam Inc.,  2 S.C.R. 145, Dickson J. (as he then was), writing for the Court, emphatically rejected any requirement of a connection between the rights protected by s. 8 and a property interest in the premises searched. He quoted with approval at pp. 158‑59 the statement of Stewart J., delivering the majority opinion of the United States Supreme Court in Katz v. United States, 389 U.S. 347 (1967), at p. 351, that "the Fourth Amendment protects people, not places". Dickson J. held that this applied equally to construing s. 8.
30 While Dickson J. advocated a broad general right to be secure from unreasonable search and seizure, he stressed that it only protected a "reasonable expectation of privacy". He stated at pp. 159‑60 that the limiting term "reasonable" implied that:
. . . an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement.
31 It has since been determined that this assessment must be made in light of the totality of the circumstances of a particular case. See, for example, R. v. Colarusso,  1 S.C.R. 20, at p. 54, and R. v. Wong,  3 S.C.R. 36, at p. 62.
32 I would, as well, observe that in R. v. Plant,  3 S.C.R. 281, at p. 291, it was held that it is not necessary for an accused to establish a possessory interest in the goods seized before seeking to enforce rights guaranteed under s. 8.
33 It is important to emphasize that generally, the decision as to whether an accused had a reasonable expectation of privacy must be made without reference to the conduct of the police during the impugned search. There are two distinct questions which must be answered in any s. 8 challenge. The first is whether the accused had a reasonable expectation of privacy. The second is whether the search was an unreasonable intrusion on that right to privacy. See Rawlings v. Kentucky, 448 U.S. 98 (1980). Usually, the conduct of the police will only be relevant when consideration is given to this second stage.
34 In any determination of a s. 8 challenge, it is of fundamental importance to remember that the privacy right allegedly infringed must, as a general rule, be that of the accused person who makes the challenge. This has been stressed by the United States Supreme Court in several cases dealing with searches that allegedly violated the Fourth Amendment guarantee. In Alderman v. United States, 394 U.S. 165 (1969), for example, White J., delivering the judgment of the majority, stated at pp. 171‑72 that:
. . . [the] suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. [Emphasis added.]
35 This principle was adopted and applied in Rakas v. Illinois, 439 U.S. 128 (1978), at p. 133, and United States v. Salvucci, 448 U.S. 83 (1980), at p. 86. The view expressed in these cases is persuasive and should be applied when s. 8 challenges are considered.
36 The intrusion on the privacy rights of a third party may however be relevant in the second stage of the s. 8 analysis, namely whether the search was conducted in a reasonable manner. The reasons in R. v. Thompson,  2 S.C.R. 1111, considered this question. At issue was a wiretap authorization which allowed the police to eavesdrop on several public pay telephones that were often used by the appellant as well as other members of the public. The appellants argued that the failure of the authorizing judge to limit the intrusion on those third‑party users rendered the search unreasonable. Sopinka J. agreed and stated at p. 1143:
In my view, the extent of invasion into the privacy of these third parties is constitutionally relevant to the issue of whether there has been an "unreasonable" search or seizure. To hold otherwise would be to ignore the purpose of s. 8 of the Charter which is to restrain invasion of privacy within reasonable limits. A potentially massive invasion of the privacy of persons not involved in the activity being investigated cannot be ignored simply because it is not brought to the attention of the court by one of those persons. Since those persons are unlikely to know of the invasion of their privacy, such invasions would escape scrutiny, and s. 8 would not fulfil its purpose.
37 It is important to observe that Sopinka J. was careful to point out that the invasion of third-party privacy rights is not determinative of the reasonableness of the search. He put it in this way at pp. 1143‑44:
In any authorization there is the possibility of invasion of privacy of innocent third parties. For instance a wiretap placed on the home telephone of a target will record communications by other members of the household. This is an unfortunate cost of electronic surveillance. But it is one which Parliament has obviously judged is justified in appropriate circumstances in the investigation of serious crime.
38 In what may be somewhat rare circumstances, the extent of the invasion of privacy may be constitutionally relevant. This was the case in Thompson, supra, where the actions of the police were judged at p. 1143 as a "potentially massive invasion of . . . privacy" of members of the general public who were not involved in the suspected criminal activity.
39 In the case at bar, there is no need to consider the reasonableness of the search since the appellant has not established the requisite expectation of privacy. Even if it were necessary to consider the invasion of the privacy of Ms. Evers, I would conclude that there was neither a potentially massive invasion of property nor a flagrant abuse of individual's right to privacy.
40 Like the parties, I agree that the clearly stated reasons of Finlayson J.A. in Pugliese, supra, are correct and applicable to this case. The only difference between the parties arises from their view as to how it should be applied. In Pugliese, supra, the police obtained a search warrant for an apartment in a building owned by the accused but rented to another person. Illegal drugs, hidden by the tenant for the accused, were found in the apartment. The accused sought to challenge the search warrant on the basis of his right to privacy which, he contended, arose either from his proprietary interest in the apartment or his possessory interest in the goods seized.
41 This argument was rejected by Finlayson J.A. He found that, while the building may have been owned by Pugliese, he had leased the apartment to the tenant with the result that his right of entry was restricted by the provincial landlord‑and‑tenant legislation. It was the tenant who had a legitimate right to privacy. He alone was in a position to grant or refuse permission to enter the premises. Pugliese, on the other hand, had no right or authority to overrule the tenant's wishes in this regard. Nor did he have any demonstrated possessory interest in the drugs seized, since he had expressly disavowed any connection with them.
42 Finlayson J.A. emphasized that the essence of the test under s. 8 was the existence of a personal privacy right. He noted, however, that a proprietary or possessory interest could properly be considered as evidence of that personal right. Since Pugliese was unable to advance any ground other than his proprietary interest in the building, Finlayson J.A. concluded that there was nothing in the record that established an expectation of privacy in the apartment or in the portion of it in which the drugs were seized.
43 The following extracts from the reasons of Finlayson J.A. at pp. 301‑2 are, I think, apposite:
When an accused, such as the appellant, asserts at his trial that there has been a breach of his s. 8 Charter right to be secure from unreasonable search or seizure, he is asserting a particular right to privacy which may, on occasion, be unrelated to any recognized proprietary or possessory right. Section 8 of the Charter is directed to the protection of the security of the person, not the protection of his property, and it is the appellant's personal exposure to the consequences of the search and seizure that gives him the right to challenge, not the search warrant itself, but the admission into evidence at his trial of the fact of the search and the account of what was seized.
Hunter v. Southam, supra, is authority for the proposition that s. 8 of the Charter does not authorize a search and seizure, but rather acts as a limitation on the powers of search and seizure set out in the Code. Section 8 guarantees a broad and general right to be secure from unreasonable search and seizure which at least protects a person's entitlement to a reasonable expectation of privacy. Accordingly, s. 8 is available to confer standing on an accused person who had a reasonable expectation of privacy in the premises where the seizure took place, even though he had no proprietary or possessory interest in the premises or in the articles seized. In a proper case, the remedy available to such an accused would be the exclusion under s. 24(2) of the Charter of the evidence obtained pursuant to the search.
. . .
The true test of a protected constitutional right under s. 8 of the Charter is whether there is a reasonable expectation of privacy. This is so even where it is alleged that the privacy shelters illegal activity: see R. v. Wong (1990), 60 C.C.C. (3d) 406,  3 S.C.R. 36, 1 C.R. (4th) 1 (S.C.C.), and R. v. Mercer, a judgment of the Court of Appeal for Ontario, released January 29, 1992 (since reported 70 C.C.C. (3d) 180, 7 O.R. (3d) 9, 15 W.C.B. (2d) 215).
This is not to say that property rights do not confer privacy rights in a given case. They obviously do. But the appellant must assert a personal privacy right, whatever be the foundation of his assertion. And, since this reasonable expectation of privacy is a Charter protected right, the burden of providing an evidentiary basis for any violation rests with the appellant. . . . There is nothing in the record that supports any suggestion that the appellant had a reasonable expectation of privacy in McInnis's apartment or in any portion of it where the drugs and drug paraphernalia were seized. The appellant is thus unable to show that he had a constitutionally protected right. [Emphasis by italics in original; emphasis by underlining added.]
44 In the case at bar, one of the bases upon which the appellant asserted his right to privacy in Ms. Evers' apartment was his interest in the drugs. It is possible, in certain circumstances, to establish an expectation of privacy in the goods that are seized. The appellant in Plant, supra, sought unsuccessfully to do so with respect to the public utility's records of his electricity consumption. See, also, R. v. Sandhu (1993), 82 C.C.C. (3d) 236 (B.C.C.A.), where the issue was raised in relation to the suitcase of a co‑accused. However, this contention cannot be raised in the circumstances of this case. At trial, the appellant denied that the drugs were his and Ms. Evers testified that they might have belonged to someone else. The appellant maintained in the Court of Appeal that the drugs were not his. It was only in this Court that he acknowledged for the first time that the drugs were his. He should not now be permitted to change his position with regard to a fundamentally important aspect of the evidence in order to put forward a fresh argument which could not be considered in the courts below. The result in this appeal must turn solely on the appellant's privacy interest in Ms. Evers' apartment.
45 A review of the recent decisions of this Court and those of the U.S. Supreme Court, which I find convincing and properly applicable to the situation presented in the case at bar, indicates that certain principles pertaining to the nature of the s. 8 right to be secure against unreasonable search or seizure can be derived. In my view, they may be summarized in the following manner:
3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated. See Pugliese, supra.
4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably. See Rawlings, supra.
5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, at p. 54, and Wong, supra, at p. 62.
6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:
(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.
See United States v. Gomez, 16 F.3d 254 (8th Cir. 1994), at p. 256.
7. 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.
46 Taking all the circumstances of this case into account, it is my view that the appellant has not demonstrated that he had an expectation of privacy in Ms. Evers' apartment. While the factors set out in Gomez, supra, are helpful, they are certainly not exhaustive and indeed other factors may be determinative in a particular case. Nonetheless, it is significant that, apart from a history of use of Ms. Evers' apartment, the appellant cannot comply with any of the other factors listed in Gomez, supra.
47 There are, as well, several factors which specifically militate against a finding that the appellant had any reasonable expectation of privacy in the apartment. First, Ms. Evers stated in her testimony that the appellant was "just a visitor" who stayed over occasionally. As McKinlay J.A. found at pp. 136 and 134, respectively, "he was no more than an especially privileged guest" who "took advantage of Ms. Evers by making use of her premises to conceal a substantial quantity of illegal drugs".
48 Second, although the appellant kept a few personal belongings at the apartment, he did not contribute to the rent or household expenses save for his alleged assistance of Ms. Evers in the purchase of a couch.
49 Third, although only he and Ms. Evers had keys to the apartment, the appellant lacked the authority to regulate access to the premises. In the words of McKinlay J.A. at p. 136, "Ms. Evers could admit anyone to the apartment whom the appellant wished to exclude, and could exclude anyone he wished to admit". An important aspect of privacy is the ability to exclude others from the premises. This is apparent from one of the definitions of the word "privacy" found in The Oxford English Dictionary (2nd ed. 1989). It is set out in these terms:
b. The state or condition of being alone, undisturbed, or free from public attention, as a matter of choice or right; freedom from interference or intrusion.
50 The right to be free from intrusion or interference is a key element of privacy. It follows that the fact that the appellant could not be free from intrusion or interference in Ms. Evers' apartment is a very important factor in confirming the finding that he did not have a reasonable expectation of privacy. He was no more than a privileged guest.
51 Since no personal right of the appellant was affected by the police conduct at the apartment, the appellant could not contest the admissibility of the evidence pursuant to s. 24(2) of the Charter. It is therefore not necessary to consider either this aspect of the case or whether Ms. Evers did in fact consent to the search of her apartment. This is, in itself, a sufficient basis for dismissing the appeal.
52 However, the appellant has argued that automatic standing should be granted to challenge the search of a third party's premises in those circumstances where the Crown alleges that the accused is in possession of the property which was discovered and seized. The United States Supreme Court has resiled from its earlier position on this issue. See Jones v. United States, 362 U.S. 257 (1960). In Salvucci, supra, and in Rawlings, supra, it was determined that the correct approach to asserting Fourth Amendment rights was to satisfy the "legitimate expectation of privacy test".
53 Not only has the United States Supreme Court rejected the automatic standing rule, but so too have the great majority of state courts. As one author writes, "they have done so not because they are required to, but rather, because they agree with the policy underlying the Supreme Court decisions". See David A. Macdonald, Jr., "Standing to Challenge Searches and Seizures: A Small Group of States Chart Their Own Course" (1990), 63 Temp. L. Rev. 559, at pp. 571‑72 and 576.
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [Emphasis added.]
. . . I want to stress the following. An application for relief under s. 24(1) can only be made by a person whose right under s. 11(b) has been infringed. This is clear from the opening words of s. 24(1).
56 The reasonable expectation of privacy concept has worked well in Canada. It has proved to be reasonable, flexible, and viable. I can see no reason for abandoning it in favour of the discredited rule of automatic standing.
57 In the result, I would dismiss the appeal and confirm the order of the Court of Appeal upholding the conviction of the appellant.
The following are the reasons delivered by
58 La Forest J. -- While I agree with the conclusion arrived at by my colleagues, I do so for quite different reasons than those espoused by the majority. With these I am in profound disagreement. I am deeply concerned with the implications of these reasons which, I think, result in a drastic diminution of the protection to the public s. 8 of the Canadian Charter of Rights and Freedoms was intended to ensure. This is all the more regrettable since this case has come to this Court as of right on facts that are at best obscure and where the arguments raised before this Court were different from those considered by the courts below. Nor did the arguments in this Court raise the full implications of the effect the case may have on the ambit of s. 8.
59 As I see it, the protection accorded by s. 8 is not in its terms limited to searches of premises over which an accused has a personal right to privacy in the sense of some direct control or property. Rather the provision is intended to afford protection to all of us to be secure against intrusion by the state or its agents by unreasonable searches or seizures, and is not solely for the protection of criminals even though the most effective remedy will inevitably protect the criminal as the price of liberty for all. The section, it must be remembered, reads: "Everyone has the right to be secure against unreasonable search or seizure" (emphasis added). It is a right enuring to all the public. It applies to everyone, an expression that unlike many of the other Charter provisions is not qualified by express circumstances, such as, for example, s. 9 which protects everyone arbitrarily detained or imprisoned, s. 10, which applies to a everyone arrested or detained, and s. 11, which is limited to a person charged with an offence. Moreover, s. 8 does not merely prohibit unreasonable searches or seizures, but also guarantees to everyone the right to be secure against such unjustified state action; see R. v. Dyment,  2 S.C.R. 417, at p. 427. It draws a line between the rights of the state and the rights of the citizen, and not just those of an accused. It is a public right, enjoyed by all of us. It is important for everyone, not only an accused, that police (or what is even more dangerous for the public, other agents of the state) do not break into private premises without warrant.
60 The issue has not yet been directly raised because the cases dealt with in this Court have thus far been centred on cases of unreasonable searches directly involving the personal expectation of privacy of an accused person. But the approach I am suggesting is entirely consistent with the conceptual, societal and constitutional underpinnings of the right guaranteed by s. 8. Thus it is noteworthy that in the seminal case of Hunter v. Southam Inc.,  2 S.C.R. 145, in the very passage cited by my colleagues, Dickson J. (as he then was) for the Court indicated, at p. 159, that what was being protected by s. 8 was "the public's interest in being left alone". In determining whether s. 8 would apply, Dickson J. thus put the matter, at pp. 159-60:
. . . an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement. [Emphasis added.]
I add that Dickson J. stressed the importance of interpreting the right generously and not in a legalistic fashion, an approach reiterated in every subsequent s. 8 case in this Court. Nowhere was the right confined to the protection of an accused.
61 Similarly in Dyment, supra, I emphasized the public aspects of the right protected by s. 8. Having noted that the provision did not merely prohibit unreasonable search and seizure but "goes further and guarantees the right to be secure against unreasonable search and seizure" (p. 427), I added, at pp. 427-28:
The foregoing approach is altogether fitting for a constitutional document enshrined at a time when, Westin tells us, society has come to realize that privacy is at the heart of liberty in a modern state; see Alan F. Westin, Privacy and Freedom (1970), pp. 349-50. Grounded in man's physical and moral autonomy, privacy is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state. [Emphasis added.]
62 The public's interest in being left alone, "to be secure against unreasonable search or seizure", has in fact been determined, or asserted in defining, the application of s. 8 in a number of cases in this Court. This can be seen in the distinction drawn between a search of business documents (which Hunter, supra, held ordinarily required a warrant to make it reasonable), and a seizure of similar documents (which Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission),  1 S.C.R. 425, held did not require a warrant as a condition of being reasonable). The documents, so far as the corporations under investigation in those cases were concerned, in themselves gave rise to similar claims for privacy on their part. What made the difference was that a search, unlike a seizure, affected the privacy of individual third parties who were not parties against whom the investigation was directed (see my comments at pp. 521-22).
63 A similar situation occurred in R. v. Thompson,  2 S.C.R. 1111, where both the majority and minority agreed that the interception of conversation from a pay phone, unlike a private phone, required consideration of the rights of the public. For the majority, Sopinka J. had this to say, at p. 1143:
In my view, the extent of invasion into the privacy of these third parties is constitutionally relevant to the issue of whether there has been an "unreasonable" search or seizure. To hold otherwise would be to ignore the purpose of s. 8 of the Charter which is to restrain invasion of privacy within reasonable limits. A potentially massive invasion of the privacy of persons not involved in the activity being investigated cannot be ignored simply because it is not brought to the attention of the court by one of those persons. Since those persons are unlikely to know of the invasion of their privacy, such invasions would escape scrutiny, and s. 8 would not fulfill its purpose.
While he recognized, at pp. 1143-44, that even the interception of a private telephone might give rise to invasions of the privacy of innocent third parties, this was inevitable and Parliament had obviously considered it justified in appropriate cases. However, he went on to say, at p. 1144, that "in some cases the possibility of invasion of privacy of innocent persons may become so great that it requires explicit recognition along with the interests of the investigation of crime". He concluded, at p. 1145, that "given the extent of the invasion of privacy authorized in this case, a total absence of any protection for the public created a potential for the carrying out of searches and seizures that were unreasonable".
64 From this, it seems, the majority agrees, at para. 38, that at least in "somewhat rare circumstances" the extent of invasion of privacy of members of the public may be constitutionally relevant. I have no doubt that it is relevant and, in my view, the cases are not confined to massive invasions of privacy but to other situations where one can reasonably conclude that the public right to be secure against unreasonable search and seizure has been infringed. The wilful and forcible breaking in of the home of a person other than the accused would appear to me to be a candidate for consideration. A stronger case would be a break-in by state agents for less compelling reasons than criminal law enforcement. Not to accept this point of view is to accord greater protection to the right of privacy to the accused or other wrongdoer than to a person against whom there may be no reasonable suspicion of wrongdoing. That seems to me to turn the citizen's Charter right to be left alone on its head. We exercise discretion to exclude evidence obtained by unconstitutional searches from being used against an accused, even when it would clearly establish guilt, not to protect criminals but because the only really effective safeguard for the protection of the constitutional right we all share is not to allow use of evidence obtained in violation of this public right when doing so would bring the administration of justice into disrepute. There are other remedies such as trespass, it is true, but these are not constitutional remedies and they are not equal to the task.
65 I should, before going on, point out that the notion of a public right to be left alone, or in Charter terminology "to be secure against unreasonable search or seizure", is not confined to the cases I have cited; for discussions of the issue, see, for example, Donald L. Doernberg, "`The Right of the People': Reconciling Collective and Individual Interests Under the Fourth Amendment" (1983), 58 N.Y.U. L. Rev. 259; David A. Macdonald, Jr., "Standing to Challenge Searches and Seizures: A Small Group of States Chart Their Own Course" (1990), 63 Temp. L. Rev. 559; Jonathan Dawe, "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. Just how far the public's right should go, or to what extent appropriate nuances would have to be made in applying s. 24(2) of the Charter, I need not enter into here. It would be inappropriate since the issue of the public right was not even raised; that is the threshold objection I have to my colleagues' reasons (though I confess it is far from exhausting my disagreement with their approach). For the moment, I simply point out that the state courts in the United States that have refused in interpreting their State Constitutions to follow the constricted approach of the United States Supreme Court have followed a variety of paths, and it would seem to me that the proper course in Canada would be to assess the matter in the crucible of experience, rather than by taking an abstract position on the issue. My colleagues suggest that if a flagrant case arose, it could be dealt with on the basis of abuse of process. To adopt this type of "Chancellor's foot" approach, while curtailing the possibility of developing in a principled way in the light of experience the constitutional provision specifically aimed at the evil, seems to me to be at best incongruous.
66 As I mentioned earlier, some aspects of the majority's reasons seem to leave some opening for a public right consistent with Thompson, supra, but this possible avenue appears to be closed by that portion of their reasons where they purport to set forth the law by a series of syllogisms. This is the part that perhaps most concerns me about their reasons. Syllogistic reasoning has its place, no doubt, but that can only be so long as the premises are sound. It will be evident from my previous discussion that I do not agree with all these premises in so far as they purport to be based on the decisions of this Court. For example, I see no reason why, if we all share in the public right under s. 8, we cannot have resort to s. 24(2) if evidence so obtained is adduced against us. Nor do I read Hunter, supra, as being confined to an individual's personal right to privacy, and indeed this issue was expressly left open (see p. 158). But what I find especially distressing is my colleagues' embracement of recent United States authorities on the subject, whether directly or through the medium of Canadian cases in the courts below that have accepted these. It was specifically in this connection that Dickson J. in Hunter, supra, first warned against the uncritical acceptance of American cases. And this with good reason. The decisions of the United States courts on this subject, and specifically those of the Supreme Court, have not received undiluted acclaim in that country. As early as 1973, the renowned scholar, Roger B. Dworkin, succinctly described them as "a mess"; see Dworkin, "Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering" (1973), 48 Ind. L.J. 329, at p. 329. Similarly, Professor Amsterdam, who wrote extensively in the field, in a piece of studied understatement, described their efforts as "not the Supreme Court's most successful product"; see Amsterdam "Perspectives On The Fourth Amendment" (1974), 58 Minn. L. Rev. 349, at p. 349. In the years since, Professor Doernberg, supra, at p. 259, tells us "the situation has not improved".
67 The sorry state of the law in the United States is a product of history. It seems unfortunate that this Court has the irresistible urge to repeat it. That history is succinctly set forth by Dawe, supra, at pp. 43 et seq., and I shall not attempt to discuss it at any length; see also the other articles I have just cited. Suffice it to say that despite the broad language in which the Fourth Amendment is framed ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . ."), the lower federal courts early restricted it to situations where the claimant had some proprietary interest in the goods seized or the place searched. In Jones v. United States, 362 U.S. 257 (1960), however, the Supreme Court rejected this narrow property-based approach, and began a process affording wider rules of standing for individuals involving the Fourth Amendment. Of particular importance for Canada is Katz v. United States, 389 U.S. 347 (1967), where the court effectively expanded the ambit of this provision by focusing the protection afforded by it on privacy rather than protected places. This was, of course, the case to which this Court turned for guidance in developing its approach to s. 8 of the Charter in Hunter, supra. From this base this Court has had some success in developing the protection afforded by that provision in some areas beyond what the United States Supreme Court had done even in its more liberal days, an approach fed of course by the conviction that privacy, the right to be left alone, is at the heart of liberty in a modern state. As such, the right to be secure against unreasonable search or seizure belongs to all of us.
68 A wholly different direction has been taken in recent jurisprudence in the United States. Beginning with Rakas v. Illinois, 439 U.S. 128 (1978), the post-Warren court has systematically narrowed the ambit of the Fourth Amendment by rejecting the various rules of standing created in the years when the court was expanding the protection afforded by the Fourth Amendment. Oddly enough, in doing so, it has employed the concept of privacy which we saw had served as a tool for expanding the ambit of the Fourth Amendment, by narrowly constricting it to the most obvious interferences with the accused's personal privacy. So successful has it been in that endeavour that the protection now afforded by the Fourth Amendment is in at least a number of ways narrower than that afforded under the early restrictive property concept. The approach seems largely motivated by the social costs attendant upon the application of the strict exclusionary rule in the United States. But quite apart from the fact that s. 24(2) of the Charter provides a balancing instrument in Canada, the truth of the matter is that there are social costs in giving state agents wide discretion in interfering with the right of the public and of the individual to be left alone that warrant consideration in defining the right. In the absence of close consideration of the underlying policies (and these were not even addressed in the argument), I think it unwise for this Court to adopt the American approach.
69 As I mentioned, however, I agree with the conclusion of my colleagues, but I do so on the narrow ground that the appeal is not properly before us as of right. As my colleague, Justice L'Heureux-Dubé, indicates in her separate reasons, the dissent in the Court of Appeal deals 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. I add as a footnote that the argument on this issue in this Court was made on the basis of the narrow perspective adopted in the United States courts without any real attention to the broader view of the ambit of s. 8 espoused in a number of statements in this Court. Even on this broader basis, it is open to doubt that the appellant would have succeeded. From what I can determine from the unsatisfactory state of the factual findings, we appear to be concerned at best with a constructive break-in where the appellant's girlfriend led the police to the evidence. This would appear to have some affinity to the situation described in R. v. Duarte,  1 S.C.R. 30, at p. 41, where the Court drew a line between statements of an accused obtained by electronic surveillance by the police, which fell within the protection accorded by s. 8, and statements made by the accused to a trusted individual and revealed by the latter to the police, which did not. What concerns me here is that the majority would appear to have foreclosed the possibility of development where the security of the public could reasonably be held to be engaged.
The following are the reasons delivered by
70 L'Heureux-Dubé J. -- Although I substantially agree with Justice Cory's reasons and the result he reaches, I have some concern about the issue of the relevance of a breach of a third-party Charter right in the context of this case.
71 Since this is an appeal as of right, that issue, in my view, does not arise. The dissent deals only with whether, on the findings of the trial judge, the accused had a reasonable expectation of privacy in Ms. Evers' 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.
The following are the reasons delivered by
72 Gonthier J. -- I have had the benefit of the reasons of my colleagues. I concur with Justice La Forest that the appeal be dismissed as not properly before us as of right. The dissent in the Court of Appeal was as to whether the accused had a reasonable expectation of privacy. I share the views of Justice Cory that he did not. I refrain from commenting on the other issues referred to by my colleagues.
Solicitor for the appellant: Keith E. Wright, Toronto.
Solicitor for the respondent: The Attorney General of Canada, Toronto.