Court File and Parties

Ontario Court of Justice

Date: 2019-05-07

Court File No.: Toronto, College Park 4811-18-75001389

Between:

Her Majesty the Queen respondent

— And —

Keashawn George Harper-Grant applicant

Before: Justice J.W. Bovard

Heard on: January 4, 2019

Reasons for Ruling released on: May 7, 2019

Counsel:

• Mr. R. Wilson — counsel for the Crown
• Ms. H. Dudding — counsel for the accused Keashawn George Harper-Grant

Reasons for Ruling

Bovard J.:

[1] Introduction

These are the court's reasons for its disposition of Mr. Harper-Grant's motion for standing to challenge a search warrant and assert his rights under s. 8 of the Charter.

Background

[2] The Incident

Chelsea Stone, a close friend of Mr. Harper-Grant, rented an Airbnb to hold her birthday party. Mr. Harper-Grant and others attended the party. During the party, the police came and executed a search warrant. They found a gun in the kitchen cupboard. They arrested everyone in the apartment. After a short while, Mr. Harper-Grant declared that the gun was his. The police arrested him and charged him with various firearms offences.

[3] Crown Proceedings

The Crown proceeded by way of indictment on all of the charges. Mr. Harper-Grant elected trial in the Ontario Court of Justice. He asks that the court grant him standing to challenge the search warrant.

Issues

[4] The Question

Does Mr. Harper-Grant have standing to challenge the search warrant?

The Evidence

[5] Crown Affidavit

The Crown filed an affidavit from Ms. Lisa Daskalopoulos, a legal administrative assistant at the Provincial Operations Centre, Guns and Gangs Unit in Toronto.

[6] Information About the Firearm

She states, on information and belief, that the police received information that a person, other than Mr. Harper-Grant, was in possession of a firearm at 1305-89 Dunfield Avenue, Toronto.

[7] Search Warrant Execution

The police obtained a search warrant for the apartment and executed it.

[8] Discovery and Arrest

During the search of a kitchen cupboard they found a Taurus, 9 mm handgun with one round in the chamber. They arrested the 11 persons in the apartment for possession of the firearm. Twenty-nine minutes later, Mr. Harper-Grant declared "it's my gun, just take me in". Several of the persons in the apartment heard him say this. The police arrested Mr. Harper-Grant for possession of the firearm and took him to the police station.

[9] Ms. Stone's Statement

Chelsea Stone did not testify, but Ms. Daskalopoulos deposed that she gave a statement saying that she alone rented the apartment from Airbnb.

[10] Mr. Harper-Grant's Background and Relationship with Ms. Stone

Mr. Harper-Grant testified. He is 23 years old. He does not have a criminal record. He and Ms. Stone grew up in the same neighbourhood. He said that it appears that "a couple of our relatives have the same parents". When they were younger they had a lot of "sleepovers" and family interactions.

[11] Close Family-Like Relationship

Due to what some persons said, at one time they thought that they had the same father and so were brother and sister. Later, when Ms. Stone was nine or ten years old and he was twelve years old they realized that this was not true; they are not brother and sister. However, he considers her his "very close family friend" and they "categorize each other as sister and brother". They see each other approximately three times a week.

[12] Invitation to the Party

Approximately one and a half weeks before the day in question, Ms. Stone invited Mr. Harper-Grant to her birthday party. She was turning 21 years old.

[13] Rental Arrangement

She was renting an Airbnb unit in a high-rise condominium building for the party. He did not pay any money towards the rental, nor expend any money for the party.

[14] Pre-Party Discussion

Two or three days before the party he went to her house to speak about it. He asked her who was going to the party and whether she had a plan for the party. She told him some of the persons that were going to the party. She did not have a plan because she was "just going with the flow".

[15] His Concerns About the Party

He asked her who was going to the party because he does not normally go out. He wanted to make sure that he was going to be around nice persons. He was concerned that the persons she invited not be in "bad crowds or anything like that, and just like the well-being of the condo after the party". He was concerned that she not lose her deposit on the apartment if she had put one down, or be charged for any damage that might occur to the unit.

[16] Friday Setup

It was to be a two-day party on Friday and Saturday. She was to leave the unit on Sunday. He attended on both days. She asked him for help setting up for the party on Friday, so he arrived at 11 PM with his girlfriend to help her. Ms. Stone and his girlfriend are good friends.

[17] Guest Admission Process

When the guests arrived they had to contact Ms. Stone so that she could go downstairs and let them in. A couple of times during the night he went downstairs to let in persons. In cross-examination, the Crown asked him "you've also indicated that on the Saturday if someone came … they would either phone, either Chelsea … or one of Chelsea's friends or you and say, hey, let me up". Mr. Harper-Grant replied "Yeah". He agreed that then the person would be let up into the unit.

[18] His Claimed Authority Over Access

When a person came to the door of the unit, someone would have to unlock the door to let them in. He said that from his perspective he had the right to tell persons that they could not come in to the party. He said that he had this right because "me and Chelsea growing up, like I've always been like, overprotective of her".

[19] Understanding with Ms. Stone

Mr. Harper-Grant indicated that:

So, like when me and her were talking about her party she, like basically, like – basically, like me and her have the understanding that, like if anybody, like was to get too rowdy or like not supposed to be there at all, like I do have that say-so to ask them to leave.

[20] Prior Experience

He has performed this function at other of her parties. He also would have denied entrance to the party to anyone that was a stranger.

[21] Ms. Stone's Ultimate Authority

However, his authority over the unit was subject to Ms. Stone's desires. Regardless of Mr. Harper-Grant's wishes, had she told him or anyone else to leave, they would have had to go.

[22] Limitation on His Authority

In addition, had he wanted one of Ms. Stone's friends to leave, but Ms. Stone objected, he could not have forced the person to leave. The final decision was hers.

[23] Removal of Interlopers

Mr. Harper-Grant also conceded that had there been an interloper that Ms. Stone wanted to leave, he and the rest of the persons there would have participated in kicking him or her out of the unit.

[24] Departure at 4 AM

He left the party at 4 AM. Ms. Stone had passed out from drinking. She was "knocked out cold". He said that she trusted "everybody in the room to sort of look after things".

[25] Saturday Invitation of Friends

The next day, Saturday, he invited four of his friends to go to the unit "just to chill out" together. Before doing so, he asked Ms. Stone if it was okay with her. She said that it was as long as they did not cause any trouble or break anything. The four friends were primarily his friends, but they also knew Ms. Stone from having grown up in the same neighbourhood. Ms. Stone, Mr. Harper-Grant's girlfriend, and a couple of other women were in the unit when they arrived.

[26] Saturday Evening

Ms. Stone drank alcohol during the evening and then fell asleep at around 11 PM. He remained at the party and let in some of Ms. Stone's girlfriends when he and his friends arrived.

[27] Police Arrival

The police came while Ms. Stone was asleep. He was in the living room.

[28] End of Evidence

That was all of the evidence.

The Law

[29] Standing and Reasonable Expectation of Privacy

Mr. Harper-Grant asks the court to grant him standing to challenge the search warrant that the police used to search the Airbnb apartment where they found the firearm. Whether he has standing depends on whether he had a reasonable expectation of privacy in the apartment. This is governed by the law as set out by the Supreme Court of Canada in R. v. Edwards. In Edwards the court had to decide if the accused had a reasonable expectation of privacy in his girlfriend's apartment.

[30] Totality of Circumstances Test

Cory J., writing for the majority, held that "A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances".

[31] Edwards Factors

In paragraph 45, Cory J. gave a non-exhaustive list of factors that can be considered in deciding if a person has a reasonable expectation of privacy:

(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.

[32] Edwards Application

In finding that Mr. Edwards did not have a reasonable expectation of privacy in his girlfriend's apartment, Cory J. pointed to the following additional factors:

1. The accused was just a visitor who stayed over occasionally. He was no more than a privileged guest;

2. The accused did not contribute to the rent or household expenses, except for the purchase of a couch.

3. Although the accused had a key to the apartment, he "lacked the authority to regulate access to the premises". His girlfriend "could admit anyone to the apartment whom [the accused] wished to exclude, and could exclude anyone he wished to admit".

[33] Importance of Control

Cory J. found that "An important aspect of privacy is the ability to exclude others from the premises".

[34] Privileged Guest Status

On the facts in Edwards Cory J. found that the accused was no more than a "privileged guest".

[35] R. v. Le Application

Recently, in R. v. Le, the Ontario Court of Appeal had an opportunity to apply Edwards. Mr. Justice Doherty summarized the facts in Le as follows:

The central events occurred in the backyard of the townhouse unit where Leraldo Dixon lived with his mother. Mr. Dixon and four of his friends, one of whom was the appellant, were sitting in the backyard talking when three police officers arrived. Less than a minute later, the appellant bolted from the backyard with the officers in pursuit. He was apprehended a short distance away. At the time of his arrest, he was carrying a loaded handgun, cocaine, and a considerable amount of cash.

[36] Le Facts

Mr. Le was in the backyard at the invitation of Mr. Dixon.

[37] Procedure for Reasonable Expectation of Privacy

Doherty J.A. explained the procedure for considering a reasonable expectation of privacy claim:

The court begins by identifying the subject matter of the claim. It then asks first, did the claimant have a subjective expectation of privacy in the subject matter, and second, if so, was that expectation objectively reasonable? The second of these two inquiries is almost inevitably the determinative consideration: Spencer, at para. 18; Tessling, at para. 32.

[38] Subject Matter Specificity

Further, "A reasonable expectation of privacy does not exist in the air or in the abstract. One has or does not have a reasonable expectation of privacy in respect of a specified subject matter in specified circumstances."

[39] Subject Matter and Relevant Factors

Le held in paragraph 36 that:

The subject matter of a privacy claim may be …a place … The factors that will be relevant to the determination of whether a reasonable expectation of privacy exists and the weight to be assigned to any particular factor will depend in large measure on the subject matter of the privacy claim.

[40] Control as Central Factor

Doherty J.A. pointed out that "if the subject matter of the privacy claim is a place, control over that place will play a central role in assessing the validity of a reasonable expectation of privacy claim".

[41] Edwards and Control

He held that "Edwards identifies control as a key factor in the assessment of a territorial privacy claim".

[42] Fact-Specific and Normative Evaluation

The determination of whether a person has a reasonable expectation of privacy "is fact-specific and must also reflect a normative evaluation of societal expectations and aspirations as they relate to personal privacy".

[43] Le on Control and Real Property

After reviewing the authorities, Justice Doherty found in Le that:

The right to be left alone, when exercised in relation to real property, must, in my view, include some ability, either as a matter of law, or in the circumstances as they existed, to control who can access and/or stay on the property. One cannot realistically talk about a reasonable expectation of privacy in respect of real property without talking about an ability to control, in some way, those who can enter upon, or remain on, the property.

Disposition

[44] Analytical Framework

I will follow Dougherty J.A.'s analytical framework as explained in Le (see: paragraph 37 above).

[45] Subject Matter

First, I find that the subject matter of Mr. Harper-Grant's claimed reasonable expectation of privacy is the Airbnb unit.

[46] Subjective Expectation

Second, based on all of the circumstances, I find that Mr. Harper-Grant had a subjective expectation of privacy in the unit.

[47] Objective Reasonableness

Third, after considering all of the circumstances, the jurisprudence and counsels' submissions, I find that his expectation of privacy was not reasonable.

[48] Lack of Possession or Control

My reasons for this conclusion are that he did not have possession or control of the unit. He did not own it, nor had he rented it. His name was not on the rental contract. He did not contribute in any way to the process of renting the unit. He did not help to arrange the rental, nor did he pay anything towards the cost of renting the unit.

[49] Limited Role in Party Organization

Two or three days before the party he and Ms. Stone spoke about the party. She told him how she was organizing the party. He did not have a say in the matter. The most that he did to organize the party was to help her set up for the first party on Friday by coming at 11 PM with his girlfriend. I note that there is no evidence that she asked him to help her for the Saturday night party.

[50] Non-Exclusive Role in Guest Admission

With regard to how the guests were admitted to the unit for the party, the arrangement was that the guest would call Ms. Stone who went downstairs to let them in. Mr. Harper-Grant performed this function "a couple of times". However, this role was not exclusive to him and Ms. Stone. He agreed that that a prospective guest would either call Ms. Stone or one of her friends to let them up to the unit. Therefore, he did not enjoy any more control or status in this regard than did Ms. Stone's other friends.

[51] Claimed Right to Exclude

Mr. Harper-Grant said that from his perspective he had the right to tell persons that they could not come to the party because he has always been "overprotective" of her. He said that they had an understanding that he could ask unruly party goers to leave. He had served in this capacity at her other parties. It is not clear from his evidence whether he ever actually expulsed anyone at these previous parties.

[52] Ms. Stone's Ultimate Authority Over Access

However, it is clear that his ability to "regulate access, including the right to admit or exclude others from the place" was 100% subject to Ms. Stone's wishes and directions. She had the final say in these respects. There were no exceptions.

[53] Removal of Interlopers Not Particular to Him

In addition, Mr. Harper-Grant conceded that the persons at the party would have helped him to remove anyone that Ms. Stone wanted to leave. Thus, this was not a role that was particular to Mr. Harper-Grant.

[54] No Supervisory Role

Mr. Harper-Grant said that when he left at 4 AM, Ms. Stone was "out cold" and she trusted "everybody in the room to sort of look after things". This indicates that Mr. Harper-Grant did not have any particular supervisory role over and above the rest of the persons at the party. Moreover, he left her in the apartment "out cold".

[55] Need for Permission to Invite Others

The next day, he invited four of his friends to come over to the unit. But before he did this he had to get Ms. Stone's permission. He said that as a matter of manners he always asks for permission when he wants to do something even if he knows that he is entitled to "it or it's mine". That may be so, but there is no evidence that he was entitled to ask persons to attend the unit without Ms. Stone's consent.

[56] Absence of Ownership, Possession, or Control

Although he was present when the search occurred, he did not have ownership, possession or control of the unit. I acknowledge that since it was a short-term rental, the factor of historical use of the unit is naturally absent in these circumstances. This does not rule out the possibility of his having a reasonable expectation of privacy. But nor is it a factor that tends to establish a reasonable expectation of privacy in these circumstances.

[57] Comparison to Edwards

In Edwards, the accused had a key to his girlfriend's apartment. The court found that in spite of this, "he lacked the authority to regulate access to the premises. His girlfriend "could admit anyone to the apartment whom [the accused] wished to exclude, and could exclude anyone he wished to admit". This degree of control is the same as existed between Ms. Stone and Mr. Harper-Grant.

[58] Harper-Grant's Claim Less Than Edwards

Furthermore, Mr. Harper-Grant's claim to control over the Airbnb is less than that of the accused in Edwards. Mr. Harper-Grant did not have a key to the unit and he did not stay over occasionally. He had none of his things in the unit. Although his relationship with Ms. Stone was a close one, it was not as intimate as a boyfriend-girlfriend relationship, which existed in Edwards.

[59] Glorified Guest Status

I find that Mr. Harper-Grant may have subjectively felt that he had a reasonable expectation of privacy in the unit, but this belief is not supported by the facts. It does not have a reasonable objective basis. At most, he was a glorified guest in the unit.

[60] Conclusion

Therefore, I find that he did not have a reasonable expectation of privacy in the unit. The application is denied.

Released: May 7, 2019

Signed: Justice J. W. Bovard