DATE: 20010813
DOCKET: C34243
COURT OF APPEAL FOR ONTARIO
CARTHY and CHARRON JJ.A. and McCOMBS J. ad hoc
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
- and -
FRITZ ADAMS
Appellant
David Tanovich, for the appellant
Enrico Visca, for the respondent
Heard: August 7, 2001
On appeal from his conviction by Madam Justice Wailan Low, sitting without a jury, on April 6, 2000
BY THE COURT:
[1] The appellant appeals his conviction for possession of a narcotic for the purpose of trafficking contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The drugs which formed the subject-matter of the charge were found in the appellant’s pocket as a result of a search incidental to his arrest for trafficking in a narcotic on a previous occasion. The sole issue on this appeal is whether the arrest was unlawful, in which case it is conceded by the Crown that the search would constitute a violation of the appellant’s right to be secure against unreasonable search and seizure under s. 8 of the Charter and that the evidence should be excluded under s. 24(2).
[2] The appellant was arrested by the police in the laundry room of the rooming house in which he resided. Although the appellant conceded that the police had reasonable and probable grounds to arrest him, he argued that his arrest was illegal because the police failed to obtain a warrant to enter a dwelling house pursuant to s. 529 of the Criminal Code, R.S.C. 1985, c. C-46. The Crown in turn conceded that the police did not obtain a warrant and that there were no exigent circumstances within the meaning of s. 529.3 justifying a warrantless entry in the dwelling house. The Crown at trial argued, however, that the R. v. Feeney (1996), 1997 CanLII 342 (SCC), 7 C.R. (5th) 101 (S.C.C.) warrant requirement only applies to arrests in a suspect’s dwelling house and not a third party’s dwelling house. As the appellant had no expectation of privacy in the laundry room, it was not his dwelling house, and consequently, no warrant was required.
[3] The trial judge agreed with the Crown’s contention that the appellant had no expectation of privacy with respect to the laundry room. She further concluded that the laundry room was not part of the superintendent’s apartment and that the arrest did not take place in a dwelling house, period. Consequently, she held that the arrest was not unlawful.
[4] The appellant submits that the trial judge erred in finding that the arrest did not take place in a dwelling house. He submits that, at the very least, the evidence was clear that the laundry room was part of the superintendent’s dwelling house. Indeed, this fact was admitted at trial. The appellant argues that the Feeney warrant requirement is not limited to a suspect’s dwelling house — it is equally applicable to third-party dwelling houses. Consequently, the appellant argues that, absent a warrant, the police required a lawful consent in order to effect a lawful entry. Crown counsel on appeal concedes that the trial judge erred in finding that the arrest did not take place in a dwelling house and that the lawfulness of the entry in this case hinged on the existence of a valid consent.
[5] On the issue of consent, Crown counsel takes the position that the police were afforded lawful entry into the premises by the superintendent of the rooming house who had unquestioned authority to grant them entry, particularly to the laundry room. The appellant disputes the validity of the consent. He submits that the police obtained the superintendent’s permission to enter the premises because they tricked him into believing that their purpose was to investigate a noise complaint whereas, as admitted by the Crown at trial, their purpose was to come in and arrest him. Consequently, he argues that the consent was not informed, and therefore invalid.
[6] In our view, the appellant is quite correct in that the Feeney warrant requirement is not limited to arrests in a suspect’s dwelling house. There is nothing in s. 529 of the Criminal Code or in Feeney to suggest that a warrant is not required for an arrest in the dwelling house of a third party.
[7] Also, in our view, the evidence is clear, and it is not seriously contested by the Crown, that the consent in this case was not valid: see R. v. Mellenthin (1992), 1992 CanLII 50 (SCC), 76 C.C.C. (3d) 481 at 487 (S.C.C.); R. v. Borden (1994), 1994 CanLII 63 (SCC), 92 C.C.C. (3d) 404 at 417 (S.C.C.); R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529 at 543-46 (Ont. C.A.); R. v. Lewis (1998), 1998 CanLII 7116 (ON CA), 13 C.R. (5th) 34 at 40-41 (Ont. C.A.).
[8] Crown counsel, however, argues that the appellant has no standing to question the validity of the superintendent’s consent in the absence of a reasonable expectation of privacy in the premises in question. The appellant submits that since he shared the laundry room with his superintendent, he had a reasonable expectation of privacy with respect to the area where he was arrested, and therefore has standing. Alternatively, he submits that he has standing to raise this issue based on his right to contest the validity of his arrest.
[9] It is not necessary for us to determine the reasonable expectation of privacy issue with respect to standing. In our view, the appellant has standing to contest the validity of his arrest by virtue of the fact that his own Charter right was involved. This is not a case where an accused seeks to exclude evidence obtained as a result of a violation of a third party’s s. 8 Charter right. It is the appellant’s own s. 8 right which was engaged when the police effected the search of his person incidental to his arrest. In the circumstances of this case, absent a valid consent, the arrest was unlawful. Consequently, the appellant’s s. 8 right was violated and, as agreed, the evidence should have been excluded.
[10] For these reasons, the appeal is allowed, the conviction is set aside and an acquittal is entered.
(signed) “J. J. Carthy J.A.”
(signed) “Louise Charron J.A.”
(signed) “D. McCombs J. (ad hoc)”