Supreme Court Judgments

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R. v. Belnavis, [1997] 3 S.C.R. 341

 

Carol Lawrence and Alicia Belnavis                                                 Appellants

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

Indexed as:  R. v. Belnavis

 

File No.:  25507.

 

1997:  May 27; 1997:  September 25.

 

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 ‑‑ Car stopped for speeding ‑‑ Officer looking for car’s documentation and questioning passenger ‑‑ Stolen goods contained in garbage bags found in car ‑‑ Driver and passenger charged with possession of stolen goods ‑‑ Whether the driver and the passenger had reasonable expectation of privacy engaged by the search and seizure ‑‑ If so, whether the evidence should be excluded under s. 24(2)  of the Charter  --  Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .

 


The police stopped a car for speeding and ran a computer check after the driver (Belnavis) could produce no documentation.  While the computer check was being processed, the officer returned to the car to look for any pertinent documents.  He questioned the passenger (Lawrence) who had stayed in the car and noticed garbage bags on the seat crowding her.  He found more in the trunk.  On inspection, he found they contained new clothes with price tags.  The two women gave differing explanations as to who owned the bags.  They were subsequently charged with possession of stolen property.  The trial judge found the search unreasonable contrary to s. 8  of the Canadian Charter of Rights and Freedoms , excluded the evidence of the clothing under s. 24(2) , and acquitted the accused.  The Court of Appeal quashed the acquittals and ordered  new trials.  At issue here was whether the accused had a reasonable expectation of privacy engaged by the search and seizure, and if so, whether the evidence should be excluded under s. 24(2)  of the Charter .

 

Held (Iacobucci J. dissenting in part and La Forest J. dissenting):  The appeal should be dismissed.

 

Per Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin and Major JJ.: The driver of the car, driving with the apparent permission of the owner, had a reasonable expectation of privacy in the vehicle.  Searching the vehicle without a warrant constituted a breach of s. 8  of the Charter .

 


The passenger had no expectation of privacy, either in relation to the vehicle or in relation to the items seized, and therefore could not claim a violation of her s. 8  rights. The question as to whether a passenger has a reasonable expectation of privacy in a vehicle depends upon the totality of the circumstances.  All of the relevant facts surrounding a passenger’s presence in the vehicle must be considered.  Here the facts demonstrated that the passenger had no reasonable expectation of privacy in the vehicle.  Her connection to the vehicle was extremely tenuous.  She had no control over the vehicle or access to it and did not demonstrate any relationship with the owner or driver which would establish some special access to or privilege in regard to the vehicle.  No evidence indicated that she had a subjective expectation of privacy in the vehicle.  There may well be other situations where a passenger could establish a reasonable expectation of privacy in a vehicle.

 

The passenger could not demonstrate a reasonable expectation of privacy in the seized merchandise and therefore had no reasonable expectation of privacy in relation to it.  She did not identify any of the bags as hers and nothing on the exterior of the bags indicated a connection to her.  A garbage bag is very different from a suitcase or kit bag with a name or initials on it.

 

The officer had reasonable and probable grounds, both objectively and subjectively, to search the vehicle.  These grounds must inform the assessment of the seriousness of the Charter  breach, when determining whether to admit the evidence under s. 24(2) . The officer properly stopped the speeding vehicle.  He had every right to look for documents pertaining to its ownership or registration, to check it for safety reasons and to speak with the passenger. An objective observer would consider the officer had reasonable and probable grounds to believe the bags contained stolen goods and to check the trunk for more.

 

The transcript indicated that the officer clearly asserted a subjective belief in reasonable and probable grounds. The trial judge’s finding that he did not was unreasonable.

 


Whether or not the search was based upon reasonable and probable grounds, a consideration of  all the circumstances leads to the conclusion that the evidence of the clothing should be admitted under s. 24(2)  of the Charter .  Three sets of factors need to be considered:  the effect of admission on the fairness of the trial, the seriousness of the Charter  breach and the effect of the exclusion of the evidence on the reputation of the administration of justice.  Appellate courts should only intervene with respect to a lower court’s s. 24(2)  analysis when that court has made some apparent error as to the applicable principles or rules of law or has made an unreasonable finding.

 

Trial fairness was not in issue.

 

The trial judge’s conclusion that the breach was serious could not stand. The degree of the seriousness of the breach decreases as the expectation of privacy diminishes. The reasonable expectation of privacy in relation to a car is greatly reduced, in comparison to that expected of a home or office and it is further reduced when the car belongs to another.  Here, the trial judge failed to take into consideration the totality of the circumstances. The seriousness of the breach, if any, was diminished by the facts that there was no ongoing disregard for the accuseds’ Charter  rights, that there was no indication that any possible breach was deliberate, wilful or flagrant, and that the officer acted entirely in good faith.  Finally, the presence of reasonable and probable grounds mitigates the seriousness of the breach.  The violation of the accuseds’ s. 8  right was little more than a technical one.

 


The trial judge did not appear to have turned his mind to society’s interest in the effective prosecution of crime or to the reliability or discoverability of the evidence.  The exclusion, not the inclusion, of the evidence would cause harm to the administration of justice.  The evidence was essential to the prosecution and was entirely reliable.

 

Per Sopinka J.:  The police officer lacked reasonable and probable grounds.  This conclusion, however, did not affect the necessity to resort to s. 24(2)  of the Charter  because a s. 8  breach occurred.  Notwithstanding reasonable and probable grounds, a warrantless search violates s. 8 ,  absent a constitutionally valid law authorizing warrantless searches.  The evidence, however, should be admitted for the reasons of Doherty J.A. in the Court of Appeal.  The expectation of privacy in a dwelling is very different from that expected in a car which can be lawfully stopped by police officers virtually at random.

 

Per Iacobucci J. (dissenting in part):  The passenger (Lawrence) demonstrated no expectation of privacy sufficient to ground a claim under s. 8  of the Charter .  The trial judge’s conclusions with respect to the driver (Belnavis), however, were not unreasonable or based upon an error of law and were therefore entitled to appellate deference. Appellate courts cannot properly review findings of courts below in respect of s. 24(2)  of the Charter  and substitute their opinions absent some apparent error of law or a finding that is unreasonable.

 


The finding that the officer lacked reasonable and probable grounds to search the vehicle was not unreasonable.  The grounds for the officer’s searching activity must be assessed from the point of view of the initial search.  The mere presence in the back seat of garbage bags with new clothing did not constitute objectively reasonable and probable grounds supporting the search of those bags.  Similar observations could be made concerning the presence of subjective belief in reasonable and probable grounds.  Given conflicting evidence as to subjective belief, an appellate court cannot state with certainty that subjective belief in reasonable and probable grounds existed or that the trial judge acted unreasonably in failing to find that it did.

 

When police do not have sufficient grounds to support a search, they must leave the suspect alone and not proceed in violation of the Charter  to acquire the evidence they want.  This is no less true of a car than a home or office.

 

The Charter  breach was serious, notwithstanding its brief and isolated nature and the reduced expectation of privacy in the borrowed car. The trial judge was aware of concerns raised about the seriousness of the breach and his finding  the breach to be serious was consistent with previous authority.  He gave adequate consideration to whether the exclusion of the evidence would bring the administration of justice into disrepute.  Often this factor is mentioned only in passing.

 

Per La Forest J. (dissenting): The police search of the car and the property of the driver and its passenger occurred in circumstances that could no doubt be viewed as suspicious but where the officer had no reasonable and probable grounds to believe those whose property was searched had committed a criminal offence. The requirement of reasonable and probable grounds is the minimum requirement for a search.

 

Taking a drive with one’s spouse, friends or anyone else permitted to do so by the owner or driver is a common and perfectly legitimate activity in a free society and one which the citizen should generally be left free to pursue in the reasonable expectation that he or she would be left alone by the police.  Both drivers and passengers have an equally reasonable expectation of privacy, not only as to their persons but also with regard to any goods they may be carrying in a motor vehicle.

 


There is less expectation of privacy in an automobile not because a person is less entitled to privacy but because, for the purposes of regulating and controlling traffic safety in cars, it is reasonable for the state to seek entry into a car more freely than to the home, and once there the police may incidentally observe what is illegal.  But beyond this, the individual as such and the privacy he or she has in property brought with him or her is deserving of as much privacy as if the individual were at home.

 

The standard advanced by the majority, namely, that the police may search an automobile when the “totality of circumstances” dictates that it is reasonable to intrude upon a passenger’s expectation of privacy in relation to the property brought by the passenger, is well below the traditional standard of reasonable and probable grounds.  A vague standard such as this offers almost no protection to the citizen from interference by the police and also has grave implications for equality in the application of the law.  Another reason for rejecting the “totality of circumstances” test is that it draws distinctions based on the personal relationships and undermines the fact that s. 8  of the Charter  applies to everyone.

 

There is agreement with the trial judge that the search of the car and the property of both the accuseds was unreasonable.  The evidence, as against the driver and the passenger, should be rejected under s. 24(2)  of the Charter .


Cases Cited

 

By Cory J.

 

Considered:  R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Stillman, [1997] 1 S.C.R. 607;  distinguished:  R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Jacoy, [1988] 2 S.C.R. 548;  referred to:  R. v. Collins, [1987] 1 S.C.R. 265; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Duarte, [1990] 1 S.C.R. 30.

 

By Sopinka J.

 

Distinguished:  R. v. Kokesch, [1990] 3 S.C.R. 3; referred to:  R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Wise, [1992] 1 S.C.R. 527.

 

By Iacobucci J. (dissenting in part)

 

R. v. Duguay, [1989] 1 S.C.R. 93; R. v. Greffe, [1990] 1 S.C.R. 755; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Goncalves, [1993] 2 S.C.R. 3; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Barrett, [1995] 1 S.C.R. 752; R. v. Burns, [1994] 1 S.C.R. 656; R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. Lamy (1993), 80 C.C.C. (3d) 558; R. v. Simpson (1993), 20 C.R. (4th) 1; R. v. McMaster, [1996] 1 S.C.R. 740; R. v. Morrissey (1995), 97 C.C.C. (3d) 193; R. v. Klimchuk (1991), 67 C.C.C. (3d) 385; R. v. Stockley, [1997] N.J. No. 25 (QL); R. v. W.S.S.K., [1991] B.C.J. No. 3603 (QL).

 


La Forest J. (dissenting)

 

Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Edwards, [1996] 1 S.C.R. 128; Maryland v. Wilson, 117 S.Ct. 882 (1997); R. v. Wise, [1992] 1 S.C.R. 527; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Mellenthin, [1992] 3 S.C.R. 615; Rakas v. Illinois, 439 U.S. 128 (1978);  R. v. Landry, [1986] 1 S.C.R. 145.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .

 

Authors Cited

 

Roach, Kent.  Constitutional Remedies in Canada.  Toronto:  Canada Law Book, 1994 (loose-leaf updated November 1995, release 2).

 

APPEAL from a judgment of the Ontario Court of Appeal (1996), 29 O.R. (3d) 321, 91 O.A.C. 3, 107 C.C.C. (3d) 195, 48 C.R. (4th) 320, 36 C.R.R. (2d) 32, allowing an appeal from acquittals by Salhany J.  Appeal dismissed, Iacobucci J. dissenting in part, La Forest J. dissenting.

 

James Lockyer and Paul Shapiro, for the appellants.

 

Christine Bartlett‑Hughes, for the respondent.

 

 

//Cory J.//


 

The judgment of Lamer C.J. and L’Heureux-Dubé, Gonthier, McLachlin and Major JJ. was delivered by

 

1                                   Cory J. -- What expectation of privacy can a passenger and a driver have in a car and what are the consequences of a police search of the car which violates whatever right to privacy may exist?  These are the questions presented on this appeal.

 

Factual Background

 

2                                   At about 8:30 p.m. on June 5, 1991, Constable Boyce of the Cambridge O.P.P. stopped a speeding car with New York licence plates on the Highway 401 near Kitchener.  In the car were three young women, the two appellants and a teenager.  Constable Boyce asked the driver, the appellant Belnavis, for her licence, insurance and vehicle registration.  When she admitted that she had no documentation, the officer asked her to accompany him to the police cruiser.  She went, accompanied by the teenage passenger who had occupied the front seat of the vehicle.  This left the appellant Lawrence sitting in the passenger side of the back seat.  The officer’s intention was merely to write up a speeding ticket, but suspecting that the car might be stolen he ran a computer check of the plates.

 


3                                   Belnavis gave the officer her name and date of birth and told him she was from Ontario.  After he ran a licence check, she corrected her birth date, increasing her age by three years.  He asked her who owned the vehicle and she told him it belonged to a friend.  While he waited for information on the vehicle, the officer returned to the car to look for any documents pertaining to its ownership or registration.  The contents of the glove box were so messy that Constable Boyce decided there was no point looking through them.  He then stepped out of the vehicle, opened the back door on the passenger side, and stuck his head inside the vehicle so he could speak with Lawrence.  He did this because the roar of the traffic alongside Highway 401 made it difficult to hear.

 

4                                   Constable Boyce asked Lawrence to identify herself and she provided her name and birth date.  As they were speaking, Constable Boyce noticed three garbage bags on the driver’s side of the back seat.  They were open and appeared to be full of clothing.  He could also see price tags on some of the garments hanging out of the garbage bags.  Constable Boyce reached into one of the bags and removed three or four articles.  They were all new and had price tags attached.  He asked Lawrence who owned the bags and she replied that they each owned one bag.  She did not indicate which bag belonged to her.  The trial judge found that the officer also looked in the trunk while the car was pulled off to the side of the highway, and discovered five more garbage bags filled with clothing.

 

5                                   Constable Boyce returned to the police cruiser and put the same question to Belnavis.  She told him the bags were in the car when she got it.  At this point, the computer search showed that the car was not stolen, but that there was an outstanding arrest warrant for Belnavis for unpaid traffic fines.  He proceeded to arrest her on the authority of that warrant.  After arresting Belnavis, Constable Boyce returned to the vehicle and asked Lawrence who owned the car.  She replied that it had been given to Belnavis by her boyfriend.

 

6                                   At this point, Constable Boyce decided to call his supervisor, Sergeant Thornton, for assistance.  He testified as to his reason for doing so in these words:

 


A.  Because I had . . . the first thing was three females  involved.  I was on my own it was difficult to separate what I had, which I had never learned anyway.  I really didn't know what I had at that time.  I still felt I could even have [a] stolen car involved because I have experienced, actually stopped a stolen car and not finding out until three hours, four hours later that the thing was stolen.  It's just not on the system at the time or been reported.  The new clothing with tags.  Three garbage bags.  It just didn't make sense.  Plus the explanations which were being given to me. Lawrence told me they had come from [Staten] Island.

 

The trial judge found that when Sergeant Thornton arrived at the scene, Constable Boyce pointed out the three green garbage bags of clothing in the back seat of the car and the five other bags in the trunk.  He also had a purse containing 12 pairs of women’s panties and a driver’s licence belonging to Belnavis.

 

7                                   The car was towed to a nearby police station.  The appellants were charged with ten counts of possession of stolen property.

 

Decisions Below

 

Ontario Court (General Division)

 

8                                   At the opening of the trial, a voir dire was held regarding the admissibility of the clothing.  It was accepted for the purposes of the voir dire that the merchandise was stolen.

 

9                                   The trial judge noted that because the search was a warrantless one, he must consider whether Constable Boyce had reasonable grounds to conduct the search.  He found that there was no basis for the officer to believe, objectively or subjectively, that the items in the garbage bags were stolen.  The essence of the trial judge's reasons can be found in these two extracts from his reasons:


 

Viewed objectively, I can find no basis for reasonable cause.  What the officer observed was three medium-sized garbage green bags 2' x 1 ½' with some new clothing and price tag [sic] on top.  There was nothing to lead him to believe that all of the items in both bags were new.  Moreover, even assuming that all of the items were newly acquired, it does not necessarily follow that they were probably stolen.  Nor does it necessarily follow from the fact that the clothing was in garbage bags instead of shopping bags provided by retail vendors that they were probably stolen.  Nor can I accept that the answers given by the accused to his questions about the ownership of the clothing, viewed objectively, would have led a reasonable person to conclude that these items were probably stolen.  Finally, there was nothing which would give him reasonable cause to conclude that there was probably stolen property in the trunk of the vehicle.

 

                                                                   . . .

 

In this case, Constable Boyce quite properly stopped the vehicle for speeding and detained Belnavis while he made inquiries to obtain proper identification, her driver's licence, her insurance and particulars regarding the ownership of the vehicle.  These were duties imposed upon him by the Highway Traffic Act.  Moreover, he acted quite reasonably in making inquiries about where the occupants were coming from, who owned the vehicle and where they were going.  In the absence of identification and proper documentation, it was reasonable for him to make enquiries about whether the vehicle was stolen.  I am also of the view that it was not improper for him to inquire about the contents of the bags in the light of his concern that the vehicle was stolen.  I am satisfied on the evidence that those questions were asked before he received a response from the dispatcher that the vehicle was not stolen.

 

However, as I have said, I cannot accept that viewed objectively all of these factors would have led a reasonable man to conclude that the items were stolen.  Moreover, they would not have led a reasonable man to assume, as Constable Boyce said it did, that there must be  more clothing in the trunk.  In my view, the search was unreasonable in the circumstances.

 

10                               He concluded that even though the vehicle was properly stopped for speeding and the appellant Belnavis was correctly arrested for unpaid fines, once Constable Boyce confirmed that the vehicle was not stolen there was no reason to search it.  He made no specific reference to the search of the purse.  It is, however, implicit in his reasons that all seizures made by Constable Boyce were unreasonable and contravened s. 8  of the Canadian Charter of Rights and Freedoms .

 


11                               In considering whether the merchandise should be excluded the trial judge referred to the relevant considerations set out in R. v. Collins, [1987] 1 S.C.R. 265.  He found that the admission of the evidence would not render the trial unfair.  He went on, however, to find that the breach was a serious one, even though the officer did not act in bad faith.  He concluded that the serious nature of the breach necessitated the exclusion of the merchandise from evidence.  After he excluded the evidence, there was no other evidence of theft to tender and the appellants were acquitted.

 

Ontario Court of Appeal (1996), 29 O.R. (3d) 321

 

12                               The Court of Appeal, in a unanimous decision, allowed the appeal, quashed the acquittals and ordered new trials.

 

13                               Doherty J.A. held that there were two fundamental issues in the appeal.  First, did the police conduct interfere with the reasonable expectations of privacy of either of the appellants?  Second, if the answer to the first question is yes, then was that interference reasonable?  He noted that the onus is on the appellants to demonstrate that they had a reasonable expectation of privacy.  If the appellants cannot meet that onus, then they cannot obtain a remedy under s. 24(2)  of the Charter , because such a remedy is only available to someone whose own rights under s. 8  have been breached.  If they do meet the onus, then the Crown must show that the interference with the appellants’ privacy was reasonable.

 


14                               Lawful presence in the vehicle, in Doherty J.A.’s view, was only one factor to be considered in the assessment of a reasonable expectation of privacy, and did not per se create a privacy expectation with respect to the vehicle or its contents.  He observed that a person may have a reasonable expectation of privacy over the place or the thing seized, or both.  He was satisfied that Belnavis established a reasonable expectation of privacy in relation to the car because she had possession and control over the vehicle and the owner had consented to her use of the car.  However, he found that Lawrence had not demonstrated that she had a reasonable expectation of privacy.  In his view, because she was merely a passenger, she did not automatically have a reasonable expectation of privacy over the vehicle.  He noted that there may be circumstances which would enable a passenger to establish such an expectation, but they were not present in this case.

 

15                               Doherty J.A. also recognized that Lawrence could have had a reasonable expectation of privacy in the things seized, but it was incumbent upon her to demonstrate that she had an ownership interest in them.  This she had not done with the result that she had no basis for alleging her s. 8  right to be free from unreasonable search had been breached.

 

16                               With regard to s. 24(2) , Doherty J.A. agreed with the trial judge’s conclusion that the admission of the evidence would not adversely affect the fairness of the trial.  He noted that the trial judge found that the breach was a serious one and reluctantly accepted this finding of fact.  He did comment, however, at p. 349, that:

 

The seriousness of the breach is somewhat mitigated by several factors.  The place searched was an automobile and Ms. Belnavis' somewhat limited expectation of privacy was further attenuated by the lawful stopping and detention of the vehicle.  Ms. Belnavis was lawfully detained throughout the process and unlike many cases involving an unreasonable search, there was no pattern of police conduct suggesting a disregard for her constitutional rights.  But for the improper search, Ms. Belnavis was treated in an entirely proper manner by the police.

 


17                               Doherty J.A. found that the exclusion of the evidence would have negative consequences for the administration of justice because it was essential to the prosecution and was completely reliable.  While the charges were not of the most serious nature, there was a sufficient quantity of merchandise to suggest something beyond an isolated act of petty theft.  He concluded that Ms. Belnavis did not demonstrate on the balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute.  Therefore, he held that the evidence should not have been excluded.

 

Issues

 

18                               (1)   Did the appellant Lawrence have a reasonable expectation of privacy engaged by the search and seizure?

 

(2)               Should the evidence be excluded under s. 24(2)  of the Charter ?

 

Analysis

 

Did Lawrence Have a Reasonable Expectation of Privacy?

 

19                               Both parties to this appeal concede that as the driver of the car with the apparent permission of the owner to be driving, Belnavis had a reasonable expectation of privacy in the vehicle and thus could advance a claim that her s. 8  Charter  rights were violated by the police search and seizure of articles.  However, it is more difficult to determine whether Lawrence, as a passenger in the car, had a reasonable expectation of privacy.  The trial judge appeared to presume that she did.  However, relying upon this Court’s decision in R. v. Edwards, [1996] 1 S.C.R. 128, Doherty J.A. concluded that she did not.  I agree with his conclusion.

 


20                               In Edwards, the police sought to introduce evidence collected in a warrantless search of the apartment of the girlfriend of the accused.  The question was whether Edwards, as opposed to his girlfriend, had a reasonable expectation of privacy in her apartment such that his s. 8  rights were violated by the search.  The reasons of the majority set out the following framework for the s. 8  analysis, at para. 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:

 

1.  A claim for relief under s. 24(2)  can only be made by the person whose Charter  rights have been infringed.

 

2.  Like all Charter  rights, s. 8  is a personal right.  It protects people and not places.

 

3.  The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated.

 

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.

 

5.  A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.

 

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.

 

                                                                    

 

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. [References omitted.]

 

21                               It was concluded that Edwards had not demonstrated that he had a reasonable expectation of privacy in his girlfriend’s apartment.  Even though he had a key to the apartment and was a visitor over the three‑year period that they had been dating, this was insufficient to establish an expectation of privacy.  It was noted, at para. 47, that Edwards’ girlfriend described him as “just a visitor” who stayed over occasionally, and that he was described in the courts below as “no more than an especially privileged guest”.  In addition, Edwards did not contribute to the rent or household expenses of the apartment, although he did keep a few personal belongings there.  Finally, Edwards had no authority to regulate access to the apartment.

 


22                               The approach outlined in Edwards makes it clear that the question as to whether a passenger will have a reasonable expectation of privacy in a vehicle will depend upon the totality of the circumstances.  All of the relevant facts surrounding a passenger’s presence in the vehicle will have to be considered in order to determine whether the passenger had a reasonable expectation of privacy.  In this case, although Lawrence was present at the time of the search, there are few other factors which would suggest she had an expectation of privacy in the vehicle.  First, her connection to the vehicle was extremely tenuous.  She did not own the vehicle, she was merely a passenger in a car driven by a friend of the owner of the vehicle.  There was no evidence that she had any control over the vehicle, nor that she had used it in the past or had any relationship with the owner or driver which would establish some special access to or privilege in regard to the vehicle.  Lawrence did not demonstrate any ability to regulate access to the vehicle.  Finally, there was no evidence that she had a subjective expectation of privacy in the vehicle.  I agree with Doherty J.A. that the trial judge erred by apparently presuming that a passenger would have a reasonable expectation of privacy in a vehicle and in failing to consider the totality of the circumstances, the approach set out in Edwards.  The facts of the case demonstrate that Lawrence did not have a reasonable expectation of privacy in the vehicle.

 

23                               However there may well be other situations in which a passenger could establish a reasonable expectation of privacy in a vehicle.  As Doherty J.A. stated at the Court of Appeal, at p. 334:

 

There may be other circumstances, such as the relationship between the owner and the passenger, or the terms on which the passenger came to be a passenger, that will support the contention that a passenger had a reasonable expectation of privacy in relation to the vehicle. . . .

 

For example, in many cases there would be little difference in the expectation of privacy for the owner‑operator of a car and that of his or her spouse.  Similarly, if two people were travelling together on an extended journey and were sharing driving responsibilities and expenses, each would be likely to have an equal expectation of privacy in the vehicle.

 


24                               The only other manner in which Lawrence could claim a violation of her s. 8  rights is if she could demonstrate a reasonable expectation of privacy in relation to the items seized, specifically, the bags of merchandise.  This she could not do.  When asked about the three garbage bags in the back seat of the car, Lawrence stated only that each of the occupants of the vehicle owned one of the bags.  She did not identify one of the bags as hers, or make any gesture which suggested that she claimed one bag in particular as her own.  Nor was there anything on the exterior of any of the bags to indicate a connection to Lawrence.  A garbage bag is very different from a suitcase with initials displayed or a kit bag with a name on it.  A green garbage bag offers no hints that it has a particular owner.  And a garbage bag filled with brand new clothes with price tags still affixed is both anonymous and suspicious.  In short, there was nothing to indicate that she had an expectation of privacy in relation to any particular bag.

 

25                               I find it impossible to conclude that Lawrence had any expectation of privacy, either in relation to the vehicle or in relation to the items seized.  Therefore, she cannot claim a violation of her s. 8  rights.  I would dismiss her appeal.

 

Should the Evidence be Excluded Under s. 24(2) of the Charter ?

 

26                               Both parties conceded that the appellant Belnavis had a privacy right in relation to the car.  The Crown did not argue that the courts below erred in finding that the warrantless search violated her s. 8  rights.  Rather it proceeded directly to the analysis under s. 24(2), and submitted that the evidence should have been admitted despite the Charter  violation.  I agree that to search the vehicle without a warrant constituted a breach of s. 8 .

 


27                               However, in proceeding to the analysis under s. 24(2) I must stress that I find it difficult to understand why the trial judge concluded that the officer lacked reasonable and probable grounds to search the vehicle.  There is both an objective and a subjective component to reasonable and probable grounds, and I believe they were both established.  The reasonable and probable grounds for the search must then inform the assessment of the seriousness of the Charter  breach, when determining whether to admit the evidence under s. 24(2) .

 

28                               There is no question that Constable Boyce properly stopped the vehicle for a speeding violation.  Once the car had been pulled over and the driver said she did not have any ownership information, the officer had every right to look for documents pertaining to the ownership or registration of the vehicle.  Similarly, he had the right to open the back door and look into the rear of the vehicle for safety reasons and to speak with the passenger in the back seat.  See R. v. Mellenthin, [1992] 3 S.C.R. 615, at p. 623.  The garbage bags full of new clothes with the price tags still attached were then in plain view in the back seat.

 

29                               When he saw the clothing in the bags in the back seat of the car, Constable Boyce asked Lawrence who owned them.  Lawrence said that each of the women owned one bag.  He then returned to his cruiser where Belnavis was waiting and asked her the same question.  She replied that the bags were in the car when she picked it up.

 

30                               In my view, upon seeing three garbage bags full of new clothing with price tags on them, and after receiving conflicting stories about their ownership, an objective observer would find that the officer had reasonable and probable grounds to believe that the bags contained stolen property.  Further, Lawrence was somewhat crowded in the back seat by the three bags of clothing.  As a result of that observation, a reasonable person would have good cause to believe that the trunk might contain more stolen clothing.  Despite all this cogent evidence the trial judge concluded that when “viewed objectively” this did not amount to reasonable and probable grounds for the search.  This conclusion as to the lack of objective grounds I find difficult to accept.

 


31                               Turning to the subjective belief of the officer, the Court of Appeal noted that Constable Boyce was never specifically asked at the voir dire whether he thought he had reasonable and probable grounds to believe that the goods were stolen prior to searching the trunk.  At the preliminary inquiry, Constable Boyce did testify that he believed he had reasonable and probable grounds to suspect the merchandise in the back seat was stolen when he decided to open the trunk.  However, when he set out the grounds for his belief, Constable Boyce referred to the appellants’ inability to produce receipts for any of the material.  Yet the appellants were not asked for receipts until they returned to the police station, and the trial judge found that the trunk was opened at the roadside.  Therefore, if the officer’s belief that he had reasonable and probable grounds depended upon the appellants’ inability to produce receipts then he would not have had reasonable grounds prior to making the search.

 

32                               Nevertheless, the following exchange from the cross‑examination of Constable Boyce at trial supports and, I believe, confirms the position that the officer did believe that he had reasonable grounds for opening the trunk even before he knew of the absence of receipts:

 

Q.  And the reason you opened the trunk was what, you figured because it was three garbage bags in the car that it was sort of like a hunch that there might be more stuff in the car?

 

A.  Indirectly I felt that the three bags which were in the car were stolen, was stolen property.  I felt that the passenger Lawrence obviously had to sit somewhere, namely in the back seat.  She was crowded by the three garbage bags and that any more stolen property would of course be in the trunk and it seemed logical in police work to check the trunk.  [Emphasis added.]

 

This portion of the transcript amounts to a clear assertion of a subjective belief in reasonable and probable grounds.

 


33                               Moreover, the trial judge treated the officer as having a subjective belief that he had reasonable and probable grounds for conducting the search.  This is confirmed by the following extract from his reasons:

 

Constable Boyce said that he found it unusual that new clothing was stuffed in three garbage bags to the brim.  This coupled with the inconsistent responses as to ownership plus the fact that the accused had travelled from New York to Kitchener via London gave him reasonable grounds to believe that the items were stolen.

 

It appears to me that the officer did indeed have a subjective belief that the property was stolen.

 

34                               However, we are left with the trial judge’s specific finding that when viewed objectively, the officer did not have reasonable and probable grounds for the search.  Doherty J.A. stated, at p. 348, that he was deferring to this conclusion “after some hesitation”.  I would go further.  In my view, this is a finding of fact which could well be characterized as unreasonable.  However, whether or not the search was based on reasonable and probable grounds, a consideration of all of the circumstances in the context of a s. 24(2) analysis leads to the conclusion that the evidence obtained as a result of the search should be admitted.

 


35                               The law regarding s. 24(2) has been recently clarified by this Court in R. v. Stillman, [1997] 1 S.C.R. 607.  There it was confirmed that there are still three sets of factors to be considered in deciding whether to admit evidence obtained in violation of the Charter .  They are the effect of admission on the fairness of the trial, the seriousness of the Charter  breach, and the effect of the exclusion of the evidence on the reputation of the administration of justice.  The majority in Stillman, at para. 68, also reiterated the traditional position regarding appellate review of a trial judge’s findings regarding s. 24(2) :

 

. . . appellate courts should only intervene with respect to a lower court’s s. 24(2) analysis when that court has made “some apparent error as to the applicable principles or rules of law” or has made an unreasonable finding. . . .

 

I will review the trial judge’s decision on s. 24(2) with this need for caution in mind.

 

Trial Fairness

 

36                               The first consideration in deciding whether to admit evidence under s. 24(2) is whether admission would tend to render the trial unfair.  On the facts of this case, trial fairness is not in issue.  The first step in deciding whether or not the admission of evidence leads to trial unfairness is to determine whether the evidence in question is conscriptive.  Conscriptive evidence is described in Stillman in the following manner at para. 80:

 

Evidence will be conscriptive when an accused, in violation of his Charter  rights, is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of bodily samples.

 

There is no doubt that the evidence in this case was not conscriptive.  The merchandise, allegedly stolen, was not obtained through any compelled participation of the appellants, and the evidence in question was not a statement of any kind.  Therefore, I agree with the trial judge’s conclusion that the admission of the evidence would not render the trial unfair.

 


Seriousness of the Breach

 

37                               The next consideration is the seriousness of the breach.  The trial judge dealt with this point only briefly, and concluded that the breach was a serious one:

 

. . . in my view the search of the bags, without reasonable grounds, particularly the search of the trunk of the vehicle, was a serious one.  I do not for one moment suggest that there was any bad faith on the part of Constable Boyce.  Nevertheless, in the circumstances it constitutes in my view a serious Charter  violation that would bring the administration of justice into disrepute if the evidence was admitted.

 

Doherty J.A. expressed some concerns about this conclusion, but in the end he deferred to the trial judge’s conclusion.  I cannot do so.  I believe the trial judge’s conclusion was, for the reasons which follow, unreasonable, and cannot stand.

 

38                               First, I believe the trial judge failed to take into account the reduced expectation of privacy in a motor vehicle.  As the majority of this Court stated in R. v. Wise, [1992] 1 S.C.R. 527, at p. 534, the expectation of privacy in a vehicle cannot be as high as that in a home or office:

 

Society . . . requires and expects protection from drunken drivers, speeding drivers and dangerous drivers.  A reasonable level of surveillance of each and every motor vehicle is readily accepted, indeed demanded, by society to obtain this protection.  All this is set out to emphasize that, although there remains an expectation of privacy in automobile travel, it is markedly decreased relative to the expectation of privacy in one’s home or office.  [Emphasis added.]

 


39                               A person can expect that his home can and should be a safe castle of privacy.  A person cannot possibly have the same expectation of a vehicle.  Vehicular traffic must be regulated, with opportunities for inspection to protect public safety.  A dangerous car is a threat to those on or near our roads.  The reasonable expectation of privacy in a car must, from common experience and for the good of all, be greatly reduced.  The high expectation of privacy attaching to the home may well extend to an attached garage, but it should not extend to the car within when it leaves the premises.

 

40                               Turning now to the facts of this case and applying the guidelines in Edwards, I would note that Belnavis did not own the car and there was no evidence of her historical use of the vehicle.  Therefore, not only does she begin with a greatly reduced expectation of privacy because her claim is in relation to a vehicle, that expectation is then further reduced because her relative privacy interest in this particular vehicle is low.  This greatly reduced expectation of privacy should have had a significant impact on the trial judge’s assessment of the seriousness of the breach, yet it appears that he has not even taken it into consideration.  Obviously, the degree of the seriousness of the breach will increase the greater the expectation of privacy.  Clearly the converse must also be true.

 


41                               Secondly, the trial judge failed to take into consideration the totality of the circumstances in concluding that the breach was a serious one.  It is important to remember that the stopping of Belnavis for speeding and her subsequent arrest on an outstanding warrant was proper in every respect.  The vehicle was not stopped and searched arbitrarily, which would clearly have made the breach more serious, as discussed in Mellenthin, supra, at pp. 628-30.  Here the car was stopped because the appellants were travelling at 130 km/h in a 100 km/h zone.  The officer treated the appellants politely.  The breach itself was isolated and brief.  All these factors indicate that there was no ongoing disregard for the appellants’ Charter  rights, which was of considerable significance in such cases as R. v. Simmons, [1988] 2 S.C.R. 495, and R. v. Jacoy, [1988] 2 S.C.R. 548.  The breach was in no way deliberate, wilful or flagrant.  Indeed the trial judge explicitly emphasized that the officer acted entirely in good faith.  All of these factors serve to reduce the seriousness of the violation.

 

42                               Finally, for the reasons outlined earlier, I believe that the officer did objectively have and subjectively believed he had reasonable and probable grounds to conduct the search.  The presence of reasonable and probable grounds mitigates the seriousness of the breach:  Collins, supra, at p. 288; R. v. Sieben, [1987] 1 S.C.R. 295, at p. 299; Jacoy, supra, at p. 560, and R. v. Duarte, [1990] 1 S.C.R. 30, at p. 60.  Perhaps it was because the trial judge too readily concluded that the officer did not have reasonable grounds that he determined that the breach was a serious one.

 

43                               In light of all these factors I must, with the greatest respect for the able and experienced trial judge, conclude that his finding that the breach was a serious one is unreasonable and cannot stand.  The violation of the appellant’s right to be free from unreasonable search and seizure was little more than a technical one.  It would be best described as a minimal violation of Belnavis’ Charter  rights.

 

Effect on the Repute of the Administration of Justice

 

44                               The final consideration is whether the exclusion of the evidence would harm the reputation of the administration of justice.  The trial judge’s assessment of this issue is as follows:

 

. . . in the circumstances it constitutes in my view a serious Charter  violation that would bring the administration of justice into disrepute if the evidence was admitted.  Accordingly, the evidence of the items seized in the vehicle will be excluded.

 


I believe that the trial judge gave inadequate consideration to this third set of factors.  It appears that he essentially based his conclusion that the evidence should be excluded upon his finding that the breach was serious, a finding which I have concluded is unreasonable.  He does not appear to have turned his mind to society’s interest in the effective prosecution of crime nor to the reliability or discoverability of the evidence.

 

45                               I find Doherty J.A.’s conclusion, at p. 349, that it would be the exclusion, not the inclusion, of the evidence which would cause harm to the administration of justice to be much more persuasive:

 

In my opinion, the exclusion of the evidence would have negative consequences for the administration of justice.  The evidence was essential to the prosecution and was entirely reliable.  While the offence charged was not among the most serious crimes in the Criminal Code , the quantity of merchandise involved suggests something well beyond an isolated act of petty theft.  The exclusion of reliable evidence essential to the prosecution of a significant criminal charge must, in the long term, have some adverse effect on the administration of justice.

 

46                               It was held in Collins, supra, that the administration of justice will be brought into disrepute where evidence essential to substantiate the charge is excluded because of a trivial breach of the Charter .  In this case, the breach, if any, was minimal, and without the evidence the prosecution would be unable to proceed.  Further, the evidence was reliable and the quantity of merchandise suggested more than a random act of petty theft.  I cannot believe that the administration of justice would be brought into disrepute by admitting the evidence; rather, I believe that disrepute would result if the evidence were excluded.

 


Summary

 

47                               The finding of the trial judge that the Charter  breach was serious is unreasonable.  That erroneous decision must inevitably have influenced his balancing of the three Collins factors.  Trial fairness was not an issue; the breach was not a serious one; and the admission of the evidence would not bring the administration of justice into disrepute.  Therefore the evidence should be admitted.

 

Disposition

 

48                               The appeal is dismissed and the order of the Court of Appeal directing a new trial for the appellants is confirmed.

 

//La Forest J.//

 

The following are the reasons delivered by

 


49               La Forest J. (dissenting) -- In this case the majority takes a further step along the restrictive path traced by recent decisions of the Supreme Court of the United States in relation to the constitutional protection afforded the citizen against unreasonable search and seizure.  This it does by abandoning the broad purposive approach to s. 8  of the Canadian Charter of Rights and Freedoms  first enunciated by Dickson J. (as he then was) in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, and consistently followed by this Court until quite recently in R. v. Edwards, [1996] 1 S.C.R. 128, where the majority effectively accepted the narrow post-Warren United States law for the purposes of that case.  In my dissent in that case, I discussed the sorry state of the American law and its general implications and shall not repeat that discussion here.  Suffice it to say that the situation has not improved since (see, e.g. Maryland v. Wilson, 117 S.Ct. 882 (1997)) and that American constitutional law now appears to protect only against the most obvious interferences with personal privacy.

 

50               Essentially the legal technique adopted to accomplish this result is to interpret the reasonable expectation of privacy protected by the Constitution not by reference to what the citizen should expect in a free society but by reference to legalistic property concepts, an approach that was completely discarded in Hunter, supra.  These property concepts go some way towards protection of the driver or owner, but the passenger is not equally protected.  In this case the majority’s approach virtually eviscerates the right of a wide range of passengers in an automobile to be left alone by the police, and allows the police to importune even those considered to retain some element of privacy.  I find the approach wholly inappropriate in a free society and quite simply disturbing in its general implications.

 

51               Let me begin by saying that I accept the factual findings of the trial judge, findings that were also accepted by the Court of Appeal.  On this issue I take the law and the facts to be as set forth by my colleague, Justice Iacobucci.  A trial judge’s findings, especially when accepted by the Court of Appeal, should normally also be accepted by this Court.  I add that, in my view, the judge’s findings were entirely reasonable.

 


52               What we have here then, on the facts, is a case where a police officer reasonably stopped a car for speeding but went on to search the car and the property of the driver and its passenger in circumstances that could no doubt be viewed as suspicious but where the officer had no reasonable and probable grounds to believe those whose property was searched had committed a criminal offence.  The general rule, of course, is that a warrantless search is presumed to be unreasonable.  There are narrow exceptions including certain searches incidental to an arrest based on reasonable and probable grounds for believing the accused had committed a criminal offence.  The search here does not fall within any of these exceptions if only because the arrests for possession of stolen property followed a search made without reasonable and probable grounds.  The requirement of reasonable and probable grounds, as Dickson J. eloquently explained in Hunter, supra, is the minimum requirement for a search.  He put it this way, at pp. 167-68:

 

The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion.  History has confirmed the appropriateness of this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement.

 

53               The majority, however, holds that there is a reduced expectation of privacy in a motor vehicle as compared to the home.  I agree.  But why is this so?  What purposes or policies underlie intrusive action by the police in respect of people in motor cars?  The reason, I would suggest, is that it is important to regulate the use and safety of automobiles and to subject them to greater surveillance because of the dangers their use poses to other members of the public.  So police are permitted greater access to automobiles than to homes.  My colleague, Justice Cory at para. 38, in a passage taken from his own reasons in R. v. Wise, [1992] 1 S.C.R. 527, at p. 534, has thus expressed it:

 

Society . . . requires and expects protection from drunken drivers, speeding drivers and dangerous drivers.  A reasonable level of surveillance of each and every motor vehicle is readily accepted, indeed demanded, by society to obtain this protection.  All this is set out to emphasize that, although there remains an expectation of privacy in automobile travel, it is markedly decreased relative to the expectation of privacy in one’s home or office.

 


54               In promoting these administrative ends, the Court has gone so far as to permit police to make random stops at their whim without articulable cause.  That was the basis of the decision in R. v. Ladouceur, [1990] 1 S.C.R. 1257, where the Court held that a police officer could make a random stop of a car without giving any reason.  I thought this went too far to conform with the principles of a free society and concurred in Justice Sopinka’s strong dissent.  Nonetheless I can understand, if I cannot accept, the administrative reasons given why this approach might be considered necessary for regulating the conduct of drivers on the highway.  Cory J. noted in R. v. Mellenthin, [1992] 3 S.C.R. 615, at p. 624, that “[t]he primary aim of [random stops] is . . . to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars”.

 

55               But what has that got to do with persons in the car and the goods they may be carrying with them?  Nothing I would have thought.  It seems to me that taking a drive with one’s spouse, friends or anyone else permitted to do so by the owner or driver is a common and perfectly legitimate activity in a free society and one which the citizen should generally be left free to pursue in the reasonable expectation that he or she would be left alone, without incursion by the police or other state agent.  And I find the activity as legitimate for the passenger as for the owner or the driver.  Oftentimes, it is a matter of chance among friends which car to use, and I am quite unable to see that it makes any difference whether the occupants are married to or friends of the owner or driver, or someone he or she permits to be there.  Driving a car or being a passenger in it are legitimate and related activities.

 

 


56               Moreover, it is perfectly legitimate for drivers and passengers to carry their possessions into a car and reasonably to expect that these items will be protected from unjustified government prying.  Indeed, sitting in a car with one’s possessions should be considered no different from walking down the street while carrying the same items in a bag or cart.  A person’s expectation of privacy in relation to those items is the same.  This is true regardless of whether the person’s name or initials are indicated on the items or whether the items are contained in a suitcase, purse or kit bag.  As well, there is no onus on a driver or passenger to establish ownership of any property in a motor vehicle unless, for instance, the police have reasonable and probable grounds to believe that the property is stolen.  It follows that drivers and passengers have an equally reasonable expectation of privacy, not only as to their persons, but also with regard to any goods they may be carrying in a motor vehicle.

 

57               I agree that the police, since Ladouceur, supra, have the power to stop cars at their whim for purposes of traffic regulations and the like and to make enquiries relevant thereto from the occupants.  I also agree that the police in performing that duty need not turn a blind eye to things in plain view that evidence, or raise suspicions of illegality, and that he or she may also ask questions about this, subject, of course, to the occupants’ right to silence.  But as Cory J. observes in Mellenthin, supra, at p. 624, this “must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search”.

 


58               Given the facts here I would have thought that this case came within the principle in Mellenthin and that the police simply conducted an unreasonable search.  Certainly that is true if one still accepts that the minimum threshold for conducting a search is reasonable and probable grounds.  Not surprisingly, counsel for the Crown conceded that there was an unlawful search, but this concession was limited to the driver of the car, Belnavis.  However, the Crown argues, the search, as it applies to the passenger, Lawrence, was not unreasonable because the passenger did not have a reasonable expectation of privacy in relation to the car or even to the bag of clothing within the car, which she claimed belonged to her.  This position, it says, is supported by Edwards, supra, a position accepted by the majority.

 

59               On what grounds, then, is this distinction made?  The majority argues that the driver and the passenger have different expectations of privacy.  But on what do they base this conclusion?  Ultimately, it is on the ground that the car is in the possession of the driver with the consent of the owner.  In short, it is property based, an approach rejected by this Court in Hunter, supra.  I observe that the minority in Rakas v. Illinois, 439 U.S. 128 (1978), one of the series of United States cases from which the majority approach derives inspiration, saw the matter exactly as I do.  At pages 156-57, White J. has this to say:

 

Though professing to acknowledge that the primary purpose of the Fourth Amendment’s prohibition of unreasonable searches is the protection of privacy ‑‑ not property ‑‑ the Court nonetheless effectively ties the application of the Fourth Amendment and the exclusionary rule in this situation to property law concepts.  Insofar as passengers are concerned, the Court’s opinion today declares an “open season” on automobiles.  However unlawful  stopping and searching a car may be, absent a possessory or ownership interest, no “mere” passenger may object, regardless of his relationship to the owner.

 


60               Like White J. in Rakas, I think that so far as passengers are concerned the majority’s approach here declares an “open season” on automobiles, particularly when one combines it with the ruling in Ladouceur, supra.  It effectively sets aside the regime clearly enunciated in Hunter, supra, and repeated by this Court in numerous cases since.  The majority’s approach here does not arise out of the “social, political and historical realities” (Hunter, supra, at p. 155) which should inform constitutional rights.  This should be the thrust of a constitutional provision, as Hunter clearly envisaged.  That surely is what is meant by a broad purposive interpretation of a constitutional provision that guarantees each of us “the right to be secure against unreasonable search or seizure”.  I cite among the many statements of Dickson J. in Hunter where, by reference to other constitutional authority he argued for a broad interpretation, eschewing a narrow, legalistic approach.  At pages 155-56, he had this to say:

 

The need for a broad perspective in approaching constitutional documents is a familiar theme in Canadian constitutional jurisprudence.  It is contained in Viscount Sankey’s classic formulation in Edwards v. Attorney-General for Canada, [1930] A.C. 124, at p. 136, cited and applied in countless Canadian cases:

 

The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.  The object of the Act was to grant a Constitution to Canada . . . .  Their Lordships do not conceive it to be the duty of this Board ‑‑ it is certainly not their desire ‑‑ to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation.

 

More recently, in Minister of Home Affairs v. Fisher, [1980] A.C. 319, dealing with the Bermudian Constitution, Lord Wilberforce reiterated at p. 328 that a constitution is a document “sui generis, calling for principles of interpretation of its own, suitable to its character”, and that as such, a constitution incorporating a Bill of Rights calls for:

 

. . . a generous interpretation avoiding what has been called “the austerity of tabulated legalism,” suitable to give individuals the full measure of the fundamental rights and freedoms referred to.

 

Such a broad, purposive analysis, which interprets specific provisions of a constitutional document in the light of its larger objects is also consonant with the classical principles of American constitutional construction enunciated by Chief Justice Marshall in M‘Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).  It is, as well, the approach I intend to take in the present case.

 

I begin with the obvious.  The Canadian Charter of Rights and Freedoms  is a purposive document.  Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines.  [Emphasis added.]

 

Shortly afterwards, he added, at p. 157:

 


This leads, in my view, to the further conclusion that an assessment of the constitutionality of a search and seizure, or of a statute authorizing a search or seizure, must focus on its “reasonable” or “unreasonable” impact on the subject of the search or the seizure, and not simply on its rationality in furthering some valid government objective.

 

61               The majority pay lip service to the proposition, insisted upon in Hunter, supra, that s. 8  of the Charter  was intended to protect people not places, but their minds are throughout completely focussed on the car, its ownership and control.  Accordingly, Lawrence’s appeal is dismissed by the majority because the appellant did not demonstrate “control over”, “access to”, “privilege in” or “ability to regulate access to” the motor vehicle in question.  In a car, we are told there is a reduced expectation of privacy without reference to the underlying purpose and policy that underlie this assertion.  The fact is, as earlier noted, that there is less expectation of privacy in an automobile, not because a person is as such less entitled to privacy, but because, for the purposes of regulating and controlling traffic safety in cars, and related administrative reasons, it is reasonable for the state to seek entry into a car more freely than to the home, and once there it follows that the police may incidentally observe what is illegal.  But beyond this, the individual as such and the privacy he or she has in property brought with him or her seems to me to be deserving of as much privacy as if that individual were at home.  This Court has ad nauseam repeated that the Constitution protects people not places.  Administrative matters apart, the individual has a constitutional right to be left alone unless the police have reasonable and probable grounds that the individual has committed an offence.

 


62               In support of its approach the majority, I noted, relies on its decision in Edwards, supra.  I do not see that case as governing the present situation.  There the search was made of the accused’s girlfriend’s apartment when the accused was not present (indeed he was already in custody elsewhere) and she had possession and control of his property.  In this case, the passenger was physically in the vehicle at the time of the search and remained, at all times, in the back seat with the bags of clothing.  She thus remained in possession and control of her property within the car.  Even in the majority’s tabulation of factors in Edwards, which is reiterated in the present case, physical presence and control over property are listed as matters requiring consideration.  Had the passenger been carrying that property in a cart outside the car, I do not see on what basis there would be any right in the police to search.

 

63               This is the first serious deficiency of the general standard taken from Edwards and advanced by the majority, namely, that the police may search an automobile when the “totality of circumstances” dictates that it is reasonable for the police to intrude upon a passenger’s expectation of privacy in relation to the property brought by the passenger.  The standard is well below that traditionally accepted at common law over the years, namely, reasonable and probable grounds.  Equally troublesome is the lack of specificity.  All the circumstances in the particular case must be examined to answer the question, and as this case demonstrates we have no guidance as to what factors in the majority’s tabulation should govern in particular circumstances.

 


64               The need for clarity regarding when the police may make such a serious intrusion on the liberty of the individual as a search of his or her property is critically important for two reasons.  The police are entitled to as clear a standard as possible so as to guide them in the performance of their sometimes dangerous and thankless work.  I have discussed this point in, inter alia, R. v. Landry, [1986] 1 S.C.R. 145, at p. 186.  More important is that a vague standard such as this offers almost no protection to the citizen from interference by the police.  Though the subjective judgment of the police is open to review by the courts, the protection thereby offered is negligible.  Given the multiplicity of factors that may arise and the lack of precision as to their relative weight, it will be difficult to second guess the police judgment.  And even if the courts do not agree with the view of the police there is a good chance, given the difficulty of application, that they will understandably hold that the police acted in good faith for the purposes of s. 24(2)  of the Charter  and justify the inclusion of evidence obtained in a search in that way.  So what they miss on the roundabout they take back on the swing.

 

65               Moreover, the Court’s understanding of the implications of the police action may be obscured by the fact that most cases that come before them relate to someone who has already been convicted.  The courts have little “feel” for what this means to persons who have committed no wrong or any idea of the number of such people who may be harassed by the overly zealous elements in any police force.  If such a draconian regime is to be imposed, it should be done by Parliament, which is in a position to gather data, and to present evidence justifying its need.  The court’s job is not to restrict the rights of the citizen; it is to protect them (see Landry, supra, at p. 187).

 

66               The vagueness of the standard also has grave implications for equality in the application of the law.  As I noted in Landry, supra, at p. 186, such vague discretion “is unlikely to be used as much against the economically favoured or powerful as against the disadvantaged”; see also Ladouceur, supra, per Sopinka J., at p. 1267.  It does not prove but certainly does not detract from this thesis that the appellants in the present case are both members of a visible minority.

 


67               Yet another reason for rejecting the “totality of the circumstances” test is that it draws distinctions based on the personal relationships between individuals.  According to the majority, a driver’s friend who is “merely a passenger” does not have a reasonable expectation of privacy in a car whereas the driver’s spouse or a long-distance co-traveller probably would.  The problem with this type of analysis is twofold.  First, it gives police the difficult task of determining the nature of personal relationships between drivers and passengers.  In order to make this determination, the police will be forced to ask motorists irrelevant and unreasonable questions.  Second, this type of analysis undermines the fact that s. 8  of the Charter  applies to “[e]veryone”.  As I noted in Edwards, supra, at p. 150, the right to be secure against unreasonable search or seizure is a “right enuring to all the public”.  It is  not concerned with a person’s marital or familial status vis-à-vis someone else.  Rather, it is concerned with the relationship between the individual and the state and, most importantly, the individual’s interest in being free from unjustified government prying.  I do not think it is the business of the police to know whether a woman sitting beside a male driver is his wife, his mistress or a friend of long or short standing.

 

68               I thus cannot accept the lower standard for interference with the rights of the citizen proposed by the majority, and I agree with the trial judge that the search of the car and the property of both the appellants was unreasonable.

 

69               Turning to the issue of the rejection of the evidence under s. 24(2)  of the Charter , I am in complete agreement with Iacobucci J. that the evidence should be rejected as against the driver.  As well, from what I have already said, it will be clear that I see no reason why a distinction should be made between the driver and the passenger, and I would reject the evidence as against the passenger as well.

 

70               Accordingly, I would allow the appeal and restore the acquittals of both the appellants Belnavis and Lawrence.

 

 

//Sopinka J.//

 


The following are the reasons delivered by

 

71      Sopinka J. -- I agree with the conclusion of Justice Cory that the appeal must be dismissed.  I also generally agree with his reasons.  However, for the reasons stated by Justice Iacobucci and by Doherty J.A. in the Court of Appeal (1996), 29 O.R. (3d) 321, I would defer to the finding that the police officer lacked reasonable and probable grounds.  This approach does not affect the necessity to resort to s. 24(2)  of the Canadian Charter of Rights and Freedoms  as there is a breach of s. 8  whether or not the officer had reasonable and probable grounds.  In the absence of a law which authorizes a warrantless search and which is constitutionally valid, a warrantless search is unreasonable and contrary to s. 8 .  Notwithstanding this conclusion, I would admit the evidence for the reasons of Doherty J.A.  With respect to the contrary view, I do not see much similarity between this case and R. v. Kokesch, [1990] 3 S.C.R. 3, which involved a warrantless perimeter search of a dwelling.  There is a marked difference between the expectation of privacy in a dwelling and an automobile which, pursuant to decisions of this Court, can be lawfully stopped by police officers virtually at random.  See R. v. Ladouceur, [1990] 1 S.C.R. 1257, and R. v. Wise, [1992] 1 S.C.R. 527.  Moreover, the police in Kokesch acted in bad faith which has been negated by the trial judge in this case.

 

72      I would dispose of the appeal as proposed by Cory J.

 

 

//Iacobucci J.//

 

The following are the reasons delivered by

 


 

73                               Iacobucci J. (dissenting in part) -- I have had the advantage of reading the lucid reasons of my colleague, Justice Cory.  While I agree with him that the appellant Lawrence has demonstrated no expectation of privacy sufficient to ground a claim under s. 8  of the Canadian Charter of Rights and Freedoms , I cannot, with respect, concur with his disposition of the appellant Belnavis’ appeal.  In my view, the trial judge’s conclusions in her regard were not unreasonable or based upon an error of law.  They are therefore entitled to deference from this Court.  Although I might have found differently had I been in the trial judge’s position, I am not prepared to overrule his findings and would therefore allow Ms. Belnavis’ appeal.

 

74                               This Court has emphasized on numerous occasions the importance of deferring to the s. 24(2)  Charter  findings of lower court judges, who hear evidence directly and are thus better placed to weigh the credibility of witnesses and gauge the effect of their testimony: see e.g., R. v. Duguay, [1989] 1 S.C.R. 93, at p. 98; R. v. Greffe, [1990] 1 S.C.R. 755, at p. 783; R. v. Mellenthin, [1992] 3 S.C.R. 615, at p. 625; R. v. Wise, [1992] 1 S.C.R. 527, at p. 539; R. v. Goncalves, [1993] 2 S.C.R. 3, at p. 3; R. v. Stillman, [1997] 1 S.C.R. 607.  In Greffe, Lamer J. (as he then was) stated as follows at p. 783:

 

I note that it is not the proper function of this Court, absent some apparent error as to the applicable principles or rules of law, or absent a finding that is unreasonable, to review findings of courts below in respect of s. 24(2)  of the Charter  and substitute its opinion for that arrived at by the Court of Appeal. . . .

 


75                               I agree with this statement, and I note that while it speaks of deference to the findings of Courts of Appeal, the same principles apply, a fortiori, to the findings of trial judges: Goncalves, supra; Stillman, supra, at para. 68.  As Cory J. states in his reasons, appellate courts in general should not intervene with respect to a lower court’s s. 24(2)  analysis absent an error of law or unreasonable finding.

 

76                               The reasons for this principle of deference are apparent and compelling.  Trial judges hear witnesses directly.  They observe their demeanour on the witness stand and hear the tone of their responses.  They therefore acquire a great deal of information which is not necessarily evident from a written transcript, no matter how complete.  Even if it were logistically possible for appellate courts to re-hear witnesses on a regular basis in order to get at this information, they would not do so; the sifting and weighing of this kind of evidence is the particular expertise of the trial court.  The further up the appellate chain one goes, the more of this institutional expertise is lost and the greater the risk of a decision which does not reflect the realities of the situation.

 

77                               Consequently, I am unwilling to disturb Salhany J.’s findings on issues arising under s. 24(2)  of the Charter  unless it can be demonstrated that he made either an error in principle or an unreasonable finding.  For the reasons that follow, I am not convinced that he did.

 


78                               Cory J. suggests that Salhany J.’s finding that the officer lacked reasonable and probable grounds to search the vehicle could be characterized as unreasonable.  With respect, like the majority of the Ontario Court of Appeal ((1996), 29 O.R. (3d) 321), I cannot agree.  The officer’s testimony clearly establishes that while questioning the passenger in the back seat (which I agree was perfectly legitimate), he reached into the bags of clothing and removed several articles of clothing in order to examine them more closely and see what was underneath them.  This went beyond a plain view observation of the contents of the vehicle’s back seat and in my view constituted a search of the bags.  The grounds for the officer’s searching activity must, therefore, be assessed from the point of view of this initial search, since no evidence was led that he would have engaged in further investigation (e.g., asking the passenger and Ms. Belnavis who owned the bags) had it not been for his examination of the contents of the bags: R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Grant, [1993] 3 S.C.R. 223.

 

79                               Salhany J. assessed these grounds as follows:

 

Viewed objectively, I can find no basis for reasonable cause.  What the officer observed was three medium-sized garbage green bags 2' x 1 1/2' with some new clothing and price tag [sic] on top.  There was nothing to lead him to believe that all of the items in both bags were new.  Moreover, even assuming that all of the items were newly acquired, it does not necessarily follow that they were probably stolen.  Nor does it necessarily follow from the fact that the clothing was in garbage bags instead of shopping bags provided by retail vendors that they were probably stolen.

 

80                               Although I might have come to a different conclusion had I heard all the evidence myself, I cannot say that the trial judge acted unreasonably in finding that  the mere presence in a back seat of some garbage bags with new clothing on top did not alone constitute objectively reasonable and probable grounds supporting the search of those bags.  While the presence of clothing in bags might suggest that the clothing had recently been stolen, it could also suggest that the appellants had simply been shopping.  I would defer to the trial judge in this regard.

 

81                               Similar observations may be made concerning the presence of subjective belief in reasonable and probable grounds.  It is true, as Cory J. points out at para. 32, that the officer testified on cross-examination that “[i]ndirectly, [he] felt that the three bags which were in the car were stolen, was stolen property”.  In his examination-in-chief, however, he also testified as follows:

 


Q. What was the initial reason . . . for what reason did you call Sergeant Thornton?

 

A. Because I had . . . the first thing was three females involved.  I was on my own it was difficult to separate what I had, which I had never learned anyway.  I really didn’t know what I had at that time. [Emphasis added.]

 

82                               Even after having looked in the bags, the officer stated that he was not sure he was dealing with stolen property.  This statement directly contradicts his later statement that he felt the clothing in the bags was stolen.  This inconsistent testimony cannot, in my view, provide the basis for interference with a trial judge’s conclusions on the grounds that those conclusions were unreasonable.  Faced with such conflicting evidence, I do not see how an appellate court, particularly one this far removed from the relevant events, can state with certainty that subjective belief in reasonable and probable grounds existed or that the trial judge acted unreasonably in failing to find that it did.

 

83                               Moreover, to the extent that it is possible to make such a determination, I agree with Doherty J.A.’s assessment of the evidence, at p. 339:

 

I also cannot find in the evidence of [the officer], any indication that he believed he had reasonable and probable grounds to believe that there was stolen property in the trunk. [The officer] said that he did not have ground to arrest anyone for possession of stolen property before he opened the trunk.  If he did not think he had grounds to arrest any of the occupants of the vehicle for possession of stolen property, I cannot see how he could believe that he had reasonable and probable grounds to believe there was stolen property in the trunk.

 

84                               Accordingly, I would not disturb Salhany J.’s findings regarding reasonable and probable grounds for the search.

 


85                               Cory J. also objects to Salhany J.’s conclusion as to the seriousness of the Charter  breach.  In his view, it was unreasonable to conclude that the breach was so serious that admission of the evidence would bring the administration of justice into disrepute.  Again, I cannot concur.  First of all, while I fully agree with Cory J.’s observations about Ms. Belnavis’ reduced expectation of privacy in the borrowed car and about the brief and isolated nature of the Charter  breach, I disagree with his conclusion that the trial judge failed to take these considerations into account.

 

86                               This Court has stated on several occasions that failure to provide explicit treatment of every issue is not a reversible error of law: see, e.g., R. v. Barrett, [1995] 1 S.C.R. 752; R. v. Burns, [1994] 1 S.C.R. 656; R. v. Shropshire, [1995] 4 S.C.R. 227.  All of the points Cory J. raises about the seriousness of the breach were made before Salhany J. in counsels’ submissions.  There is, in my view, no question but that he was aware of them, and the fact that he did not review them explicitly in his reasons does not persuade me that he failed to consider them in reaching his conclusion.  Unless that conclusion was itself unreasonable, therefore, I am unwilling to interfere with it.  This brings me to a consideration of the reasonableness of the trial judge’s conclusion.

 

87                               Again, while I might have held differently, given the factors outlined by Cory J. in his reasons, I am not convinced that this decision was unreasonable.  With respect to my colleague, I believe the record supports Salhany J.’s conclusion that the breach was sufficiently serious to warrant exclusion of the evidence, as I will now attempt to demonstrate.

 


88                               As noted above, I accept the trial judge’s finding that the officer did not have reasonable and probable grounds when he searched the appellants’ car.  This Court has repeatedly emphasized the seriousness of proceeding to a search in the absence of reasonable and probable grounds.  As Justice Sopinka  stated in Kokesch, supra, at p. 29:

 

Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally.  Where they take this latter course, the Charter  violation is plainly more serious than it would be otherwise, not less.  Any other conclusion leads to an indirect but substantial erosion of the Hunter standards.  The Crown would happily concede s. 8  violations if they could routinely achieve admission under s. 24(2)  with the claim that the police did not obtain a warrant because they did not have reasonable and probable grounds. [Emphasis in original.]

 

89                               The evidence at issue in that case -- narcotics -- was excluded notwithstanding that the breach was relatively unintrusive (a perimeter search of a dwelling-house).  Similar results are found in  Mellenthin, supra, in which, as in this case, a car was legitimately stopped but then searched in violation of s. 8 .  The Court held, at p. 630, that it was the attempt to extend the power to stop “to include a right to search without warrant or without reasonable grounds that constitutes the serious Charter  violation”.  See also in this regard R. v. Lamy (1993), 80 C.C.C. (3d) 558 (Man. C.A.), and R. v. Simpson (1993), 20 C.R. (4th) 1 (Ont. C.A.).  In both of these cases, cars were searched on the mere suspicion that they contained drugs; in both cases, the Charter  breach was judged serious and the evidence excluded.  Salhany J.’s finding of seriousness in this case, therefore, seems consistent with previous authority and well within the range of acceptable conclusions.

 


90                               Moreover, the evidence suggests that the officer, Constable Boyce, may have lied about his conduct in searching the appellants’ vehicle.  He testified that he did not search the trunk of the car until after it had been towed to the police detachment.  However, Sergeant Thornton, his supervisor, testified that when he arrived at the side of the road, Constable Boyce  pointed out to him the contents of the trunk, which had already been opened.  Salhany J. explicitly found Sergeant Thornton’s evidence preferable to that of Constable Boyce, noting that Constable Boyce’s testimony was inconsistent with his own notes made during the investigation.  While Salhany J. declined to comment further on this discrepancy in Constable Boyce’s evidence, perhaps wishing to avoid discrediting an overzealous constable, I believe it further supports his conclusion that the breach in this case was serious.

 

91                               In light of these factors, I cannot say that Salhany J. acted unreasonably in concluding that the Charter  breach in this case was sufficiently serious to warrant exclusion of the evidence.  That I might have held otherwise were I in his position does not by itself warrant overturning his decision.

 

92                               Finally, I must respectfully disagree with Cory J.’s conclusion that the trial judge gave inadequate consideration to the third consideration under s. 24(2) , whether the exclusion of the evidence would bring the administration of justice into disrepute.  As the Chief Justice stated in R. v. McMaster, [1996] 1 S.C.R. 740, at p. 751 (quoting Doherty J.A.’s reasons in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.)):

 

Where a case turns on the application of well-settled legal principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to those parties, much less to the Court of Appeal, that he or she was aware of and applied those principles.

 


93                               See also Barrett, supra; Burns, supra; Shropshire, supra.  Salhany J. began his reasons on s. 24(2)  by listing the three factors to be considered in applying this section of the Charter .  I am unable to accept that over the course of his reasons (some two pages), he somehow forgot one of them and thus did not take it into account.  As Kent Roach observes in Constitutional Remedies in Canada (1996) at ¶10.1850-¶10.1860, the third s. 24(2)  factor is often mentioned only in passing, even in decisions of this Court.  This does not mean judges are not taking it into account.  Whether the trial judge gave it sufficient weight in this case is really a question of the reasonableness of his conclusion: given the effect of exclusion on the administration of justice, was it unreasonable to exclude the evidence in this case?  For the reasons given above, I am of the clear opinion that it was not.  Given the exclusion of evidence in cases such as Mellenthin and Lamy, I believe Salhany J. was well within reasonable standards in deciding to exclude the evidence.

 

94                               In summary, I believe the appellant Belnavis’ appeal should be allowed.  Although I understand why the Court of Appeal may have decided differently from the trial judge with respect to issues arising under s. 24(2)  of the Charter , and why my colleagues on this Court may wish to do so, I am unwilling to override our long-standing principle of deference in cases such as these.  I find in the trial judge’s reasons no error in principle or unreasonable finding which warranted intervention by the Court of Appeal.  I would therefore allow the appeal of the appellant Belnavis, set aside the judgment of the Court of Appeal, and restore the acquittal entered at trial.

 

95                               I wish to add that since preparing these reasons, I have had the advantage of reading the reasons prepared by my colleague, Sopinka J.  With respect, I cannot agree with his attempt to distinguish this case from Kokesch, supra.  Kokesch involved a warrantless search of the perimeter of a house, not of its interior.  The relevant comparison in terms of reasonable expectation of privacy is therefore not between “a dwelling and an automobile”, as Sopinka J. suggests at para. 71, but rather between the outside of a house and the inside of a car.  I am not convinced, as is he, that one gives rise to so markedly different a reasonable expectation of privacy than the other as to warrant overruling the trial judge’s decision to exclude the evidence.


 

96                               Moreover, the nature of the place searched is not, with respect, relevant to the applicability of Kokesch.  The point of the principle stated in that case is that when police do not have sufficient grounds to support a search, they must leave the suspect alone and not proceed in violation of the Charter  in order to acquire the evidence they want.  I see no reason why this is any less true -- or any less important -- in the case of an automobile than in the case of a home or office.  Certainly lower courts have shown no hesitation in applying this principle to exclude evidence obtained in unconstitutional searches of suspects’ cars: see, e.g. R. v. Klimchuk (1991), 67 C.C.C. (3d) 385 (B.C.C.A.); R. v. Stockley, [1997] N.J. No. 25 (S.C.T.D.); R. v. W.S.S.K., [1991] B.C.J. No. 3603 (Prov. Ct.).  In this respect, I can do no better than quote Sopinka J.’s dissenting reasons in Wise, supra, at p. 577, in which he states:

 

In my opinion, we would attribute to the arbiter of this question too high a degree of subtlety if we tried to distinguish this case from Kokesch. . . .  The significant fact for Charter  purposes is the illegal trespass knowingly committed by the police.

 

Appeal dismissed, Iacobucci J. dissenting in part, La Forest J. dissenting.

 

Solicitors for the appellants:  Pinkofsky, Lockyer & Kwinter, Toronto.

 

Solicitor for the respondent:  The Attorney General for Ontario, Toronto.

 

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