Ontario Court of Justice

Date: August 25, 2022 Court File No.: 21-0268

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CLAYTON FORREST

Before: Justice M. G. March

Heard on: August 3, 2022 Reasons for Decision released on: August 25, 2022

Counsel: Timothy McCann, Counsel for the Federal Crown Jennifer Ho, Counsel for the Accused, Clayton Forrest

M.G. MARCH J.:

INTRODUCTION

[1] This is a decision regarding whether the Applicant, Clayton Forrest, (“Forrest”), has standing to bring an Application under section 8 of the Canadian Charter of Rights and Freedoms (“the Charter”) for the exclusion of evidence under section 24(2) of the Charter resulting from a search of a dwelling house executed by members of the Renfrew Ontario Provincial Police (“OPP”).

[2] No affidavit or viva voce evidence was called upon the hearing of the Application for standing. It appears counsel were content for this Court to attempt to discern from the documents filed on the Application, which included:

a) a Warrant to Search issued February 25, 2021 pursuant to section 11 of the Controlled Drugs and Substances Act, b) an Information to Obtain a Search Warrant sworn in support of the issuance of judicial authorization to search a dwelling house, namely 136 Argyle St, Unit B, Renfrew, ON, c) an OPP Exhibit Register dated February 26, 2021, d) duty book notes of Sgt. Jeffrey Arnold of the OPP dated February 25 and 26, 2021, e) duty book notes of Detective Constable Scott Wood of the OPP dated February 26, 2020 (sic), f) duty book notes of Detective Sgt. Mike Hartwick of the OPP dated February 26, 2021, and g) two photographs taken from the basement area of 136 Argyle St., Unit B, and,

whether the legal test for standing had been met.

OVERVIEW

[3] Defence counsel on behalf of Forrest originally brought the Application on June 28, 2022 seeking the Order for standing. The matter could not be reached on that day and was eventually heard on August 3, 2022.

[4] In essence, Forrest contends that his right to be free from unreasonable search and seizure under section 8 of the Charter was infringed or denied at the time the police searched the residence at 136 Argyle St., Unit B. The terms, Unit B and Apt. B, appear to be referred to by counsel interchangeably.

[5] The search warrant in question was granted by a Justice of the Peace on February 25, 2021.

[6] In the Information to Obtain a Search Warrant sworn by OPP Detective Constable Mark Yarmel, Forrest was not mentioned as a target. Matthew Malcolm was. Mr. Malcolm was known to reside at 136 Argyle St. S., Apt. B, in Renfrew, ON.

[7] Police knew that the subject residence was a “one-story multi-apartment dwelling”.

[8] On February 26, 2021, police forced entry into the residence through an east side door where they located two adult females, two adult males, two children and one teenager.

[9] The four adults, Matthew Malcolm, his common-law spouse, Megan Beckett, a female, Abigail Cliche and Forrest were all arrested and charged then or shortly thereafter for possessing controlled drugs for the purpose of trafficking.

[10] Mr. Malcolm and Ms. Beckett were located and apprehended upstairs in the residential unit.

[11] Ms. Cliche and Forrest were found and arrested in the basement area of the apartment. Sergeant Jeffrey Arnold of the OPP, who participated in the search, noted that there was a deadbolt secured door in the basement of the residence, which was forced open and cleared.

[12] In the basement, police searched and seized the following:

a) 14.6 g of suspected cocaine in a backpack on a bed, b) 8.1 g of suspected fentanyl in a clear bag located in the backpack, c) 0.5 g of suspected purple fentanyl in a clear plastic container in the backpack, d) five prescription medication bottles allegedly belonging to Forrest located in the backpack, e) one orange pill bottle container with the label removed containing six suspected methamphetamine pills in the backpack, f) one yellow prescription pill bottle with the name of Stephen Wallace on it containing four blue Novo-100 pills in the backpack, g) six suspected methamphetamine pills removed from a prescription bottle allegedly belonging to Forrest in the backpack, h) a digital scale in the backpack, i) a Toyota key on a Protyre keychain in the backpack, j) a Motorola cell phone in a box in the backpack, k) an application for a Canada Pension Plan Disability Benefit with Forrest’s name on it listing his address as 326 Calabogie Rd. RR #2, Arnprior, ON, l) $420 cash located in a blue clutch purse allegedly belonging to Ms. Cliche located under a table, m) an iPhone located beside the purse under the table, n) a Motorola cell phone located on the table, o) a small green book with a suspected debt list located in a backpack on a rocking chair, p) packaging material located on the table, and q) an Infinity digital scale with white residue on it also located on the table.

[13] Through his counsel, Forrest argues that he had a reasonable expectation of privacy in the basement area of 136 Argyle St. S. All above listed items were located in a secured living space furnished with a bed, rocking chair, table and a bathroom. The basement area was separate and distinct from the upstairs living area of 136 Argyle St., Apt. B. Access to the basement area could be prohibited, as evidenced by the deadbolt lock on the entry door.

[14] Forrest’s counsel submits that as a “guest” of 136 Argyle St. S., Apt. B, Forrest had control over the basement living area. He was able to regulate access to it. He thus had a right to admit or exclude others from that space.

[15] Police only had authority to search Apt. B. The residence had at least two separate units (Apts. A and B). It was unclear whether the basement was part of Apt. A, Apt. B, or a unit unto itself.

[16] Consequently, Forrest had a personal right to privacy in the basement of 136 Argyle St. S., Renfrew, ON. He therefore should be granted standing to challenge the search warrant executed by members of the OPP on February 26, 2021.

[17] Forrest sought standing in order to:

a) challenge the facial validity of the authorization permitting a police search of 136 Argyle St. S., Apt. B, and b) to attack the basis for its issuance as a means to exclude all evidence obtained as a result of the search which implicated him.

[18] Crown counsel points out that Forrest himself indicated that he lived elsewhere -specifically, 326 Calabogie Rd., Arnprior, ON - on his disability pension application.

[19] Further, upon his release from police custody on the day of the search via an Undertaking he gave to the authorities, Forrest indicated that his place of residence was 473 Raglan St. S., Renfrew, ON.

[20] Crown counsel also drew to the attention of the Court that the basement area of 136 Argyle St. S. is accessed from the kitchen of Apt. B. Apt. A. is a self-contained unit located at the front of the subject “duplex” style residence. Apt. A. has no access to the basement of the residence.

[21] Crown counsel submitted that simply because Forrest was located at the residence at the time of execution of the search warrant does not mean that the standard of “objective reasonableness”, as that requirement for recognition of standing was defined in the case of R. v. Cole (2012) 2012 SCC 53, 3 S.C.R. 34, has been met.

[22] A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. A non-exhaustive list of factors for consideration were set out in R. v. Edwards (1996), 1 S.C.R. 128 to assist Courts in determining whether an individual’s claim to a reasonable expectation of privacy has been made out.

ANALYSIS

[23] Section 8 of the Charter provides:

“Everyone has the right to be secure against unreasonable search or seizure.”

[24] It is trite law to point out that section 8 of the Charter protects people, not places. It prohibits unreasonable intrusions on the privacy interests of individuals [1] (Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at p. 160).

[25] The person contending that his or her right to be secure against unreasonable search or seizure must establish that his or her right to privacy has been violated. Of necessity, such a person must demonstrate that he or she had a reasonable expectation of privacy in the place where the search was conducted [2] (R. v. Edwards, [1996] 1 S.C.R. 128 at para. 45).

[26] To claim section 8 Charter protection, claimants must establish that they had a direct interest in the subject matter of the search, that they had a subjective expectation of privacy in that subject matter, and that the subjective expectation of privacy was objectively reasonable [3] (R. v. Cole, [2012] 3 S.C.R. 34, 2012 SCC 53 at para. 11).

[27] A reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by section 8 of the Charter [4] (R. v. Cole, [2012] 3 S.C.R. 34, 2012 SCC 53, supra at para. 9).

[28] A reasonable expectation of privacy is contextual. The expectation does not have to be of the highest form of privacy to trigger the protection of section 8 of the Charter [5] (R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30 at para. 22).

[29] Whether the claimant had a reasonable expectation of privacy must be assessed in the totality of the circumstances [6] (R. v. Marakah, [2017] 2 S.C.R. 608, 2017 SCC 59 at para. 11).

[30] Only if a claimant’s subjective expectation of privacy was objectively reasonable does the claimant have standing to challenge that the search was unreasonable [7] (R. v. Marakah, [2017] 2 S.C.R. 608, 2017 SCC 59, supra at para. 12).

[31] Of course, standing is only the opportunity to argue one’s case.

[32] An examination of a number of factors assists Courts in determining whether a reasonable expectation of privacy on an objective standard ought to be recognized. They include:

a) the place where the search occurred, whether it be a real place or a metaphorical space, b) the private nature of the subject matter at issue, and c) control over the subject matter [8] (R. v. Marakah, [2017] 2 S.C.R. 608, 2017 SCC 59, supra at paras. 27-30).

[33] In addition, the Edwards factors involve an assessment of the totality of the circumstances including, but not limited to:

a) presence at the time of the search, b) possession or control of the property or place searched, c) ownership of the property or place, d) historical use of the property for item, e) the ability to regulate access, including the right to admit or exclude others from the place, f) the existence of a subjective expectation of privacy, and g) the objective reasonableness of the expectation [9] (R. v. Edwards, [1996] 1 S.C.R. 128 at pp. 145–146).

[34] An inquiry into the existence of a reasonable expectation of privacy is always driven by the question of whether a privacy claim should “be recognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free, democratic and open society” [10] (R. v. Le, [2019] 2 S.C.R. 692, 2019 SCC 34 at para. 136).

[35] Guests’ expectations may be qualified by the knowledge that their host could invite others in, including the state. Yet, it may still be objectively reasonable for a guest present on private property to expect that the state will not enter uninvited [11] (R. v. Le, [2019] 2 S.C.R. 692, 2019 SCC 34, supra at para136).

Place of the Search

[36] Police entered 136 Argyle St., Apt. B, Renfrew, ON under authority of a Warrant to Search issued by a Justice of the Peace. State intrusions upon private dwelling houses attract a high expectation of privacy, particularly for owners, and renters, but less so for guests. That is not to say guests should enjoy no reasonable expectation of privacy in a home where they are staying.

[37] For this very reason no doubt, defence counsel drew my attention to R. v. Angou (2021) ONSC 7446. In that case, Tranquilli J. was essentially invited by the Crown to recognize the limited privacy interest a guest enjoys within a private residence of his or her host based on an assessment of the relevant factors set out in the cases of Andrews and Cole.

[38] In my view however, the authority of the police to search the basement area of 136 Argyle St., Apt B in this case was quite different. Unlike Angou, the police here had a search warrant in hand. They were judicially authorized to search for and to seize controlled substances in things which could contain or conceal them. The basement qualified as such a thing.

[39] To be blunt, the police clearly did not know exactly what they would find when they entered 136 Argyle St, Apt. B. They learned that the basement was accessible through the kitchen. Police would have been remiss in their duties not to go down to look for illicit drugs or evidence of trafficking upon their discovery of the stairway to the basement.

Private Nature of the Subject Matter

[40] A dwelling house and its contents attract a high, and of course, reasonable expectation of privacy. However, what police found when they looked around the kitchen at 136 Argyle, Apt. B, and then decided to venture down to the basement, was a place where controlled substances could be securely stored. It would not be uncommon for illegal substances to be kept locked away and out of sight from just any casual visitor. Common sense, logic and reason dictate as much.

[41] I can see no basis for the police to question their judicially authorized power to search for controlled substances in and about the basement, even if it meant breaching the door.

Control over the Subject Matter

[42] There is some evidence to suggest that Forrest had control over the basement area. Police were met with a locked basement door, which had to be breached. When opened, it would have been visible to them that he was present in an area which contained, amongst other things, a bed, a rocking chair, a table and a nearby bathroom.

[43] Upon examination of the photographs, I note however that the bed does not have sheets or blankets. Indeed, it looks quite sullied. There are as well certain other items of interest lying upon it, amongst them, a backpack, deodorant, prescription drugs in pill bottles, a container of what would appear to be vitamin pills, cigarettes, glasses, a glass case, lighters, a belt, writing paper and cell phones. Some, but not all of the items, were probably spread out and demonstratively placed there by police to be photographed.

[44] On my objective assessment, it did not appear as though the basement would have been used as sleeping quarters for anyone. To the contrary, it had all the trappings of a storage area for drugs and/or a private room for drug use.

[45] I cannot be satisfied that Forrest enjoyed anything beyond a very minimal measure of control over the basement area on the limited evidence put before me for the hearing of this Application.

Presence at Time of Search

[46] There can be no doubt that Forrest was located by police in the basement behind a locked door. Yet, there is no basis for the Court to determine how he came to be there. Inferentially, I can and do accept that he was a guest within the residential unit occupied by Mr. Malcolm and Ms. Beckett. He also had personal items with him, all of which could have fit in a backpack, but that is as far as I can go.

[47] All I can conclude is that he was present and possessed of certain items when police breached the door.

Possession or Control of the Property or Place Searched

[48] Frankly, I cannot find that I am satisfied on a balance of probabilities that Forrest had some claim to possession or control of the basement area of 136 Argyle, notwithstanding his presence in it.

[49] The backpack may have been brought there by him. It is unclear how long he had been in the basement prior to police arrival. There is nothing to suggest he stayed there overnight. Nor can I glean from the evidence adduced on the hearing of the Application when, in fact, the door had been locked by him or someone else.

Ownership of the Property or Place

[50] There is no evidence to suggest that Forrest owned 136 Argyle.

Historical Use of the Property

[51] Nor is there any evidence to suggest Forrest occupied the basement area of 136 Argyle on a historical basis.

The Ability to Regulate Access to Others

[52] It is clear that the basement door at 136 Argyle was equipped with a lock. Indeed, police were obliged to breach the door to enter and search the basement.

[53] Aside from the fact of a deadbolt on the door, I can infer nothing more than that Forrest and Ms. Cliche were in the basement on February 26, 2021, and that either he or she utilized the lock. Whether he or she chose to do so when police arrived, or at a certain earlier point in time, when they occupied the basement, I simply cannot discern from the evidence adduced at the hearing of the Application.

The Existence of a Subjective Expectation of Privacy

[54] Accepting as I have that Forrest was a guest in the home of Mr. Malcolm and Ms. Beckett, I find that he enjoyed a subjective expectation of privacy inside their dwelling house. However, that right to privacy did not supersede the right of police to search the entire residence for controlled substances on what I must presume was a validly issued Warrant to Search authorized by a Justice of the Peace for 136 Argyle St., Apt. B.

[55] On the basis of the materials put before me, I find that Forrest perhaps owned the backpack found on the bed in the basement, even though he claimed no direct ownership interest in it. His name was on several of the prescription pill bottles found in the backpack. However, the backpack itself is not what Forrest must establish a subjective expectation of privacy over. It is the entire basement ‘living’ area if he is to attain standing.

The Objective Reasonableness of the Expectation

[56] Ultimately, in deciding this Pre-Trial Application, I must determine whether Forrest had a reasonable expectation of privacy in the basement area of 136 Argyle. In his mind, he may have felt he did. Objectively, I find he did not. Once police obtained a Warrant to Search Unit B or Apt. B of that dwelling house, their authority to search must have extended to the areas occupied by “guests” within the residence.

[57] It matters not that the basement door was equipped with a deadbolt, and in fact, was locked before or shortly after the arrival of police on February 26, 2021. I cannot, on the state of the evidence before me, determine who even locked the door. It could have been Ms. Cliche or Forrest.

[58] What is clear is that the guests of Mr. Malcolm and Ms. Beckett could opt to lock the basement door, if they were allowed to go or were invited to stay in the basement area at 136 Argyle, Apt. B, for whatever reason. What has not been established on a balance of probabilities in assessing the totality of the evidence adduced at the hearing into whether Forrest should be granted standing to challenge the validity of the Warrant to Search is that he, either individually or shared collectively with Ms. Cliche, enjoyed a reasonable expectation of privacy in the basement area of 136 Argyle as his living area.

Conclusion

[59] For the above reasons, I must therefore decline to afford standing under sections 8 and 24(2) of the Charter to Forrest to challenge the validity of the Warrant to Search issued on February 25, 2021 for the dwelling house of Mr. Malcolm and Ms. Beckett.

Released: August 25, 2022 Signed: Justice M. G. March