WARNING The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: September 24, 2024 COURT FILE No.: 4810-998-22-70001577
BETWEEN:
HIS MAJESTY THE KING
— AND —
DAYLO ROBINSON DALTON WILSON
Before: Justice Hafeez S. Amarshi Written reasons released on: September 24, 2024
Counsel: M. Gharabaway....................................................................................... counsel for the Crown T. Okada-Phillips……….………………………………………...counsel for Daylo Robinson S. Proudlove……………….………………………………………..counsel for Dalton Wilson
H.S. Amarshi J.:
RULING ON SECTION 8 CHARTER APPLICATION: STANDING
A. Introduction
On February 10, 2002, police executed a search warrant at 185 Queen St, unit 2, Port Perry. Four individuals were located inside the unit. [1] In a satchel on a bed police located a loaded firearm, 35.6 grams of crystal methamphetamine, 51.07 grams of powder cocaine and 2.19 grams of fentanyl.
Daylo Robinson and Dalton Wilson are seeking exclusion as evidence the contraband found in the unit. Specifically, the applicants argue the information to obtain (ITO) did not establish a basis upon which the authorizing justice could have been satisfied that there were reasonable grounds to support the issuance of a search warrant.
Before a determination is made on whether the search of the residence was lawfully authorized, the issue of standing to challenge the search warrant is to be resolved.
Standing
The Crown argues that Daylo Robinson lacks standing to assert a section 8 Charter right. Specifically, he has no reasonable expectation of privacy in the Port Perry apartment because he was occupying the unit unlawfully and further had a marginal connection to the residence.
The Crown concedes Dalton Wilson has standing as the lease holder and consistent occupier of the unit.
The defence asserts standing relying on the Crown’s theory of liability in this case. [2] That Mr. Robinson had a meaningful connection to the unit even if he was an “uninvited guest” as the Crown posits. That he was the main target of the search warrant and had been living in the unit for several weeks prior to the search warrant execution. [3]
B. Applicable Principles
In determining a section 8 challenge, the court must start the analysis by considering whether the Charter right was engaged. This turns on whether the accused has a reasonable expectation of privacy in relation to the subject matter of the search. [4]
Success in establishing a reasonable expectation of privacy is what grants the accused s. 8 standing. [5]
As the Court of Appeal explained in R. v. El-Azrak, 2023 ONCA 440, at paras 30 and 31, three broad categories of privacy have emerged over time: territorial, personal and informational privacy. Determining whether someone has a reasonable expectation of privacy necessitates both a factual and a normative inquiry. [6]
The normative inquiry is broader in nature, with an eye to protecting that for which we ought to expect protection from a privacy perspective in a free and democratic society. [7]
The factual inquiry necessitates an assessment of the “totality of the circumstances.” These include the factors listed in R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45:
(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.
The control and access factors have been particularly salient factors in territorial privacy cases. [8]
As the court in El-Azrak, explained at para. 32, the factors for consideration in determining whether there exists a reasonable expectation of privacy are well-known and grouped under four headings. The test asks the following:
(i) What is the subject matter of the search? (ii) Does the accused have a direct interest in that subject matter? (iii) Does the accused have a subjective expectation of privacy in the subject matter? (iv) Would an expectation of privacy be objectively reasonable in the circumstances of the case? [9]
Only where the answer to the fourth question is “yes” does the claimant have standing to assert a s. 8 right.
Whether an individual has a direct interest in the subject matter of a search is not defined by whether the subject matter is incriminating or not, but by the degree to which the individual has a meaningful connection to the subject matter - for example, through participation, authorship, ownership or control. [10]
To establish direct interest, subjective expectation of privacy, [11] and objective reasonableness, an applicant is entitled to rely upon the Crown's theory of the case. An accused mounting a s. 8 Charter claim may ask the court to assume as true any fact the Crown has alleged or will allege in the prosecution including the contents of an ITO. [12]
Although the accused can rely on the Crown’s theory to establish certain facts relevant to their s. 8 claim, the trial judge is still required to assess those facts in the "totality of the circumstances" to determine whether the accused had a reasonable expectation of privacy in a particular territorial space. [13]
C. Analysis
Applying the test to determine standing as set out in El-Azrak, the following can be established:
(i) What is the subject matter of the search?
- Daylo Robinson asserts a territorial privacy interest in the apartment that was searched and where illicit drugs and a firearm were located.
(ii) Does the accused have a direct interest in that subject matter?
- The applicant is directly implicated in the search that takes place in the Port Perry unit. Based on the Crown’s theory, Mr. Robinson had arrived from Nova Scotia with his girlfriend and were uninvited occupants in Dalton Wilson’s apartment. The applicant was in possession of contraband that he stored in the unit. That Mr. Wilson was concerned for his safety. [14]
(iii) Does the accused have a subjective expectation of privacy in the subject matter?
- This is not a high hurdle. [15] Although the applicant did not give evidence on the issue of standing, what is known is that Mr. Robinson was residing in the unit immediately prior to and during the time the search warrant was executed. He was arrested in the apartment and his clothing and personal effects were located. The vehicle the applicant was travelling in – a 2015 Volkswagen Jetta with Nova Scotia plates, was observed at the rear of 185 Queen St. over two different days of police surveillance. [16] The applicant has established a subjective expectation of privacy in the Port Perry apartment. [17]
The final inquiry of the four-prong test involves a normative analysis - whether in all of the circumstances, the applicant’s expectation of privacy was objectively reasonable. A determination of standing turns on this issue.
It is at this stage of the analysis where the factors articulated in the Supreme Court’s decision in R. v. Edwards are considered:
Presence at the time of the search
Daylo Robinson was present when the search warrant was executed.
Possession or control of the property or place searched
The applicant’s control over the unit was tenuous at best. He was not a tenant of the unit, nor was there a suggestion he was contributing to the rent. There was no evidence that he had a key to the unit.
Based on the prosecution’s theory of liability, Mr. Robinson participated in an unlawful possession of the apartment. The Crown’s theory in this case is analogous in part, to the facts in R. v. Dosanjh, 2022 ONCA 689, where the Court of Appeal explained, “How the appellant came into possession of the vehicle,” was a relevant factor that informed the objective analysis. In Dosanjh, the accused came into fraudulent possession of an Infiniti SUV after he impersonated another individual.
The court concluded Mr. Dosanjh was a trespasser, when the infotainment unit of the vehicle was collecting and storing data, which was the subject matter of the s. 8 claim. The fact that the appellant fraudulently accessed the vehicle without a colour of right were relevant circumstances informing whether the accused could objectively expect privacy in the data generated by the vehicle.
Similarly in this case, Mr. Robison was trespassing. He was an illegitimate occupier of the Port Perry apartment. He lacked the authority to lawfully use the unit or exclude others from it.
In R. v. Lauda, [1998] 2 S.C.R. 683, the Supreme Court confirmed a trespasser has no reasonable expectation of privacy.
In R. v. Atta, 2022 ONCJ 589, the lawful tenant testified that he “gave in” to two males who wanted to deal drugs from his apartment. The males initially had permission to be in the premises and had possession of a key and therefore a measure of control over the unit. Over time however, the tenant became increasingly uncomfortable with their presence. The court concluded that the applicant despite having a key to the unit was not a legitimate occupant, stating at para. 26, “Acquiescence or capitulation is not the same as consent. It would be contrary to the law to permit an accused to manufacture an expectation of privacy by gaining non-consensual occupation of another person’s home through coercion, extortion, exploitation, fraud or other victimization of the homeowner.” [18]
Ownership of the property or place:
The applicant had no ownership or tenancy interest in the apartment unit.
Historical use of the property or item
It is unclear how long Daylo Robinson had been living in the unit. Police commence surveillance on February 3, 2020, after they received a complaint from M.D. who lived in the building. [19] A vehicle associated with the applicant was observed on that day. A search warrant was executed a week later, and Mr. Robinson was located inside the unit. Prior to that, police observed him coming in and out of the apartment building. There is some measure of historical use. The applicant’s clothing and personal effects are located inside the apartment.
The ability to regulate access, including the right to admit or exclude others from the place
Given that the applicant was an uninvited occupant of the unit, the defendant had no “right” to admit or exclude others. There may have been some ability to regulate access given the Crown’s theory that Mr. Wilson feared the applicant, but such ability was illegitimate.
D. Conclusion
Applying the relevant principles, I have concluded the applicant has not established standing to assert his s. 8 rights were breached. Although I found the applicant to have had a subjective expectation of privacy and some measure of historical use, Mr. Robinson’s status is no more significant than that of an uninvited visitor. That is the extent of the privacy interest. His control over the apartment was tenuous.
If I am to accept the Crown’s theory, then there was a measure of exploitation and intimidation that underlies the applicant’s occupancy of the Port Perry residence. [20] The illegitimate means by which the applicant accessed the unit undermines his claim of a reasonable expectation of privacy.
Accordingly, I find that Daylo Robinson has no standing to challenge the search of the Port Perry apartment.
H.S. Amarshi J.
[1] All four individuals were charged. At trial the Crown only proceeded with the prosecution of the Applicants. [2] Pursuant to R. v. Jones, 2017 SCC 60. [3] The defence makes a further argument that the ITO speaks to the search of cell phones in the unit, which were seized during the investigation. Clearly, the defence submits, the applicant has standing in his own cell phone which is sufficient to tether him temporally to the residence. That argument did not impact the analysis of standing in this case. The fact the applicant has a reasonable expectation of privacy in the contents of his cell phone does not automatically equate to possessing territorial privacy rights. Standing can shift based on the item or place searched. Of note, nothing of evidentiary value was obtained from the devices. [4] To have standing, a person must prove that they have a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access. To establish a reasonable expectation of the privacy in the subject matter of the search, the person must subjectively expect it would be private and this expectation was objectively reasonable. Whether a reasonable expectation of privacy exists must be assessed in the totality of the circumstances. See R. v. Marakah, 2017 SCC 59. [5] It is the accused’s onus to establish a reasonable expectation of privacy on a balance of probabilities. [6] In R. v. Singh, 2024 ONCA 66, Justice Doherty recently stated at para. 43, “A determination of whether a reasonable expectation of privacy exists is a fact-specific and contextual inquiry directed at the subject matter of the search or seizure.” [7] R. v. El-Azrak, 2023 ONCA 440, at para. 31 [8] Jones, supra, at para 40. Although deemed a “particularly salient factor,” control is not an absolute indicator of a reasonable expectation of privacy, nor is a lack of control fatal to a privacy interest - see R. v. Cole, 2011 ONCA 218 at paras. 54 and 58 and R. v. Buhay, 2003 SCC 30, at para. 22. [9] In R. v. Labelle, 2019 ONCA 557, at para. 31, the Court of Appeal confirmed that the Jones analysis applies not only to informational privacy cases, but also to territorial privacy cases where standing is in issue, although “[T]his approach does not create automatic standing in territorial privacy cases.” [10] R. v. Dosanjh, 2022 ONCA 689 at para. 117. [11] As the court stated in R. v. El-Azrak, supra, at para. 60, “Just because an accused does not testify, that does not mean that a subjective expectation of privacy does not exist or that this third stage of the inquiry need not be addressed. While it was not always the case, today it takes little to cross the subjective expectation of privacy threshold. In appropriate circumstances, it can be inferred [citations omitted].” [12] See R. v. Wawrykiewycz, 2018 ONCJ 199, at para. 44. [13] Labelle, supra, at para. 31. [14] As referenced in the ITO under “Current Investigation.” [15] Dosanjh, supra, at para. 120. [16] The vehicle was observed on February 3 and again on February 7, 2022. [17] In addition, assuming as true, the facts alleged in the Crown’s written materials. [18] See also R. v. Murray, 2018 ONSC 3053, where Justice Molloy ruled the accused may have had a subjective expectation of privacy in someone else’s motel room when he arrived uninvited and refused to leave. However, that expectation was not objectively reasonable. He had no control over the place searched, no ownership interest or right to occupy the room in his own right. He was there merely as a guest. He had no ability to regulate access to the room. The fact that it was a motel room as opposed to an apartment was irrelevant to the analysis. [19] M.D. alleged that Dalton Wilson visited her in her unit and attempted to dissuade her from testifying against Mr. Robinson who was charged with human trafficking related offences in 2018. M.D. is the complainant in that case. Further, Mr. Wilson attempted to procure her. [20] As revealed in the ITO, Dalton Wilson confides in M.D. that he did not have anywhere to go since the applicant and his girlfriend had taken over his apartment.