Ontario Court of Justice

Date: 2020-09-17 Location: Newmarket

Between:

Her Majesty the Queen

— AND —

Merrick Barham

Ruling on Standing

Submissions Heard: 17 September, 2020 Delivered: 17 September, 2020

Counsel:

• Mr. Martin Dionne, counsel for the Crown
• Ms. Eleanor Shaw, counsel for the defendant

KENKEL J.:

Introduction

[1] There was an altercation at a local bar and a patron was stabbed. The Crown alleges that witnesses saw the assailant flee in a grey Mazda. They provided the description and the license plate number to police. One patron at the bar identified the female driver. Police stopped the Mazda as it pulled in to the driver's residence. Police located a safe in the trunk of the vehicle during a search incident to arrest. Through what appeared to be mounting holes drilled into the safe, the officers could see a handgun and cash. The police obtained a warrant to search the safe and items found inside were later linked to the defendant through DNA analysis.

[2] If Mr. Barham had been in the Mazda that evening, he was no longer present when it was stopped and searched. The defence applies for a ruling to determine whether Mr. Barham has standing to challenge the search of the safe. While the defence does not concede that the safe belonged to Mr. Barham and in fact takes the contrary position, the defence submits that the Crown's theory alleging his possession of items in the safe is sufficient to give him standing to challenge the search. The defendant also seeks a finding that he has standing to challenge other alleged infringements of the rights of the driver involving her arrest and the search of her vehicle.

[3] The Crown submits that direct and circumstantial evidence will show that Mr. Barham fled in the Mazda and left the vehicle sometime before the driver arrived at her home. Any interest he had in the safe was abandoned when he left the vehicle. He has no standing to contest a search of someone else's vehicle when he wasn't present at the scene and otherwise contests the Crown's assertion of possession. Further, the defence has no standing to contest other alleged violations of the driver's rights.

Search of the Safe – Standing to Challenge the Warrant Based on the Crown's Theory

[4] Section 8 of the Charter protects everyone from unreasonable search and seizure. A defendant alleging a breach of that section and seeking a remedy under s 24 must show that a state act invaded his or her reasonable expectation of privacy in the subject matter of the search – R v Jones, 2017 SCC 60 at para 11. The claimant must also show that the search itself was unreasonable. The applicant must prove both points on the balance of probabilities to show a breach of s 8 (Jones at para 11).

[5] In R v Edwards, [1996] SCJ No 11 at paragraph 45 the Supreme Court set out seven criteria to be considered when assessing whether an applicant had a reasonable expectation of privacy that was engaged by the search. As the Crown points out, most of those criteria do not apply in this case. Before Jones that might have been the end of the discussion, however in that case the Supreme Court held at paragraph 18 that a defendant should be permitted to rely upon the Crown's theory of the case for the purpose of establishing s 8 standing. The court held that it was unfair to, in effect, compel the defendant to concede the Crown's allegation of possession in order to advance a Charter claim in relation to the search or seizure of that property. After Jones, a defendant retains the ability to challenge searches and seizures of property that may ultimately be proved to be hers or his even if they otherwise contest the Crown's assertion of possession.

[6] In this case I find Mr. Barham has standing to contest the search via warrant of the safe seized by police. It is the items therein that are alleged in counts 3, 4, 5 and 8 to have been in the possession of the accused on the date of the stabbing. The Crown takes the position that the evidence proves beyond a reasonable doubt that Mr. Barham was in possession of those items as alleged. The defendant therefore has standing based on the Crown's theory to challenge the search warrant.

[7] A defendant bringing a Charter s 8 challenge on this basis is not thereafter estopped from putting the Crown to the strict proof of the alleged possession or calling evidence to the contrary as part of the defence. While this does allow the defendant to "have it both ways" as discussed in submissions, any restriction on the defence would result in the unfair "Catch-22" described in Jones at para 18.

Standing to Challenge the Arrest of Anderson and the Search of her Vehicle?

[8] The agreed facts for the purpose of the application show that the Mazda stopped by police was registered to the driver, Ms. Anderson. The vehicle was searched incident to her arrest. The police were looking for weapons and evidence related to the stabbing offence. The vehicle search led to the discovery of the safe and its contents in the trunk of the hatchback.

[9] The defence submits at paragraphs 37-43 of their factum that the police did not have grounds to arrest Ms. Anderson. They submit the search of her vehicle incident to arrest was unlawful, and in the alternative, that the scope of the search exceeded what was justified under that common law power. The defence submits that the court should be able to review the full context of the investigation that led up to the search of the safe.

[10] The search of the safe leading to discovery of items now alleged to be linked to Mr. Barham was done pursuant to a warrant. Based on this standing ruling, the defence will proceed with their s 8 Garofoli application to challenge the validity of that search. This court will have to determine whether there was a sufficient basis on which the issuing justice could have issued the warrant. If it is found that the Information to Obtain (ITO) contains information obtained in contravention of the Charter, the remedy is to excise that information from the ITO – R v Wu, 2015 ONCA 667 at para 38. Section 24(2) is not engaged.

[11] The application and factum refer to several breaches related to Ms. Anderson and request a s 24(2) remedy:

• The police did not have reasonable grounds to arrest her;
• they did not have reasonable grounds to search her vehicle;
• the search of her vehicle exceeded the scope of search incident to her arrest.

[12] The facts set out in the application seem to show at first glance ample grounds for the arrest of Ms. Anderson and the search of her vehicle. Even if that proved not to be the case, it's not open to Mr. Barham to mount a second, further challenge based on alleged breaches of Ms. Anderson's rights. There is no evidence, nor is it the Crown's theory that Mr. Barham had any privacy interest in, property interest in or possession of Ms. Anderson's vehicle. Section 24 by its terms provides remedies only for "persons whose rights … have been infringed or denied". Beyond the Garofoli application, I find the defence does not have standing to bring a further s 8 application based on alleged violations of Ms. Anderson's rights.

Conclusion

[13] I find the defence has standing to pursue their s 8 Garofoli challenge to the search warrant. As the Supreme Court said in R v Marakah, 2017 SCC (which was the companion case to Jones) at para 59, "Standing is merely the opportunity to argue one's case." I make no findings of fact otherwise in relation to the allegations and issues that remain for trial.

Delivered: September 17, 2020

Justice Joseph F. Kenkel