ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-3268
DATE: 2012-09-05

B E T W E E N:

Her Majesty the Queen

Ms. Antoniani for the Director of Public Prosecutions

• and -

Mark Morgan

Ms. Bristow for Mark Morgan

Respondent

HEARD: September 4, 2012

PRETRIAL MOTION

REASONS FOR JUDGMENT

WHITTEN J.

1Mr. Morgan faces an indictment in which it is alleged that (1) he possessed cocaine for the purpose of trafficking, (2) he possessed cocaine simpliciter , and (3) he possessed proceeds of crime flowing from (1).

2Mr. Morgan was a “found in”, namely, a person found in a residence which was subject to an authorized search. The validity of the search warrant executed July 28, 2011 at G[…] in Hamilton is not in question. Mr. Morgan was not one of the “targets” or persons alleged to have committed an offence at that location.

3Mr. Morgan was merely present within the location when a “dynamic” entry was made by the police. The nature of the entry was referred to in the ruling of this court on May 22 nd , 2012. Such entries are quick and highly tension charged. The officers quickly clear each room for purposes of officer safety and preservation of evidence. Mr. Morgan, who was seated on a couch in a living room, was immediately cuffed by Officer Mossuto. The Officer testified on September 4, 2012, he had no idea who this person was; he knew he wasn’t a person of interest. After Mr. Morgan was cuffed, he was given a quick “pat down” for reasons of officer safety.

4There was a knapsack on the floor next to where Mr. Morgan would have his feet when he was seated. This knapsack had various zippered compartments. Mr. Morgan indicated to the officer that the knapsack was his. The officer searched the knapsack, as he would be in his opinion negligent not to do so. There may be contraband or a weapon in the knapsack. The former would be evidence, the latter a risk to the community at large. The officer searched the knapsack for reasons of safety and a belief in his authority to do so by virtue of the search warrant to search that location.

5Officer Mossuto indicated in his testimony that, if the knapsack was devoid of items of significance referred to above and barring any other evidence of involvement, there would be no connection between Mr. Morgan and an offence and he would have been released.

6Regretably for Mr. Morgan, there was cocaine and various drug paraphernalia located in the knapsack.

ISSUE

7As per the decision of the SCC in R. v. Edwards (1996) 1996 255 (SCC) , 1 S.C.R. 128, did Mr. Morgan have an expectation of privacy in the contents of that knapsack? There is really no evidence that the search of the knapsack was, per se, unreasonably conducted, namely, the second prong of the Edwards analysis.

8If there was a reasonable expectation of privacy, there would be a breach of Mr. Morgan’s section 8 Charter rights and the court would then be required to conduct a section 24(2) analysis as per R. v. Grant (2009) 2009 SCC 32 () , 2 S.C.R 353.

APPLICABLE LAW AND ANALYSIS

9In R. v. Edwards 1996 255 (SCC) , [1996] 1 S.C.R. 128 at para. 45 , Cory J. stated:

“4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably. See Rawlings , supra .

5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso , supra , at p. 54, and Wong , supra , at p. 62.

6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:

(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.

See United States v . Gomez , 16 F.3d 254 (8th Cir. 1994), at p. 256.

7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.”

10In R. v. Mahmood 2011 ONCA 693 , [2011] O.J. No. 4943 at para. 90 . Watt J. for the panel:

“[90] The s. 8 Charter guarantee of security from unreasonable search or seizure protects only a reasonable expectation: R . v . Tessling , 2004 SCC 67 , [2004] 3 S.C.R. 432, at para. 19 ; and Hunter v . Southam Inc. , 1984 33 (SCC) , [1984] 2 S.C.R. 145, at p. 159. To determine whether an investigative procedure invades a reasonable expectation of privacy requires consideration of all the circumstances, especially whether a subjective expectation of privacy exists and whether, if it does, the expectation is objectively reasonable in the circumstances: Tessling , at para. 19 ; R . v . Edwards , 1996 255 (SCC) , [1996] 1 S.C.R. 128, at para. 45 .

91The privacy interests protected by s. 8 include personal privacy, territorial privacy and informational privacy: Tessling , at para. 20 .”

11This c ourt finds the analysis of Madam Justice S. Griffin in R. v. Le (2011) BCSC 1584 of considerable assistance. Her Honour was confronted with a similar fact scenario, namely, a “found in” with a personal container of items, a purse.

12Her Honour posited a range of scenarios. The range was from a personal item such as a purse, being detached from the individual and simply being within a room being searched, to that of the personal items within the immediate personal possession of the owner: for example, within their pockets.

13The search of a premise contemplates an inspection of all items in the place to be searched. That is within the ambit of the search warrant. Her Honour observed, and it is generally acknowledged, that the police are entitled to detain “found ins” for reasons of officer safety, to prevent destruction of evidence and to prevent interference in the search process.

14Applying the Edwards criteria referred to above, Justice Griffin posed the question: would the “found in” have a reasonable expectation of privacy in the personal item which is not personally held?

15Justice Griffin found “it was clear from the circumstances that the police were in control of the premises and all objects within it. It was obvious that they were going to search the premises, and they wanted the occupants to enable them to do this. The police had the authority under the warrant to search things in the apartment, regardless of who owned the things . I find that the legal authority to search created by the warrant eliminated any objectively reasonable expectation of privacy in any things located in the apartment.” (para. 53)

16This Court adopts this reasoning. It is an objectively reasonable expectation that is determinative. This search was by valid warrant which presupposes a sufficient ITO (Information to Obtain) with reasonable and probable grounds to search that particular place. In other words, there was a judicial pre-determination of the legality of that search. That is what we as citizens would require and do require of an investigative step as intrusive as a search of someone’s private space. Once that prerequisite is satisfied, the objective expectation would be that whatever is in that place can be inspected regardless of whether someone has a subjective belief in the privacy they claim for the contents of that item. Therefore, the assertion of an expectation of privacy does not survive the last element referred to in the Edwards analysis. Having so found, if this Court is in error the Grant analysis can be considered. The basic structure of this analysis is set out below.

SECTION 24.2 ANALYSIS

17In R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 (S.C.C.) Chief Justice McLachlin and Justice Charron wrote for the majority.

18The Justices described the test of exclusion in s. 24(2) of what would bring the administration of justice into disrepute having regard to all the circumstances, as “broad and imprecise”. The court went on to say how unworkable and problematic the three part test established in R. v. Collins , [1987] 1 S.C.R. 205 and R. v. Stillman [1997] 1. S.C. R. 607 had become.

19The purpose of s. 24(2) was to maintain the good repute of the administration of justice [para. 67]. The objective concern was whether the overall repute would be adversely affected. The focus of s. 24(2) was not only long term but also prospective. “The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition, and seeks to ensure, that evidence obtained through that breach does not do further damage to the repute of the justice system.” [para. 69] “The focus of s. 24(2) is societal.” The section is not there to punish the police or provide compensation to an accused, but to address societal concerns.

20Henceforth, there was to be a threefold inquiry in which a jurist, faced with an application for exclusion of evidence, “must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter infringing state conduct (admission may send the message that the judicial system condones serious state misconduct), (2) the impact of the breach on the Charter – protected interests of the accused (admission may send the message that individual rights count for very little), and (3) society’s interest in the adjudication of the case on its merits.” [para. 71]

21The Justices expanded upon these factors.

Seriousness of the Charter Breach

22Under this heading, the court was concerned with the message sent by the fact of a Charter breach. Was the breach a possible comment as to how state institutions followed the law? Was there need for the court (one aspect of the administration of justice) to disassociate itself from the conduct? Obviously, the more severe, the more deliberate the conduct, the greater the need for this disassociation. [para. 72]

23This is not a question of punishing the police. The concern is that public confidence in the system be preserved.

24There is going to be a spectrum of seriousness in terms of breaches. At one end, there will be the minor and inadvertent breaches which would have minimal effect on public confidence. At the other extreme, there would be the willful/reckless disregard for rights with a significant negative aspect on the pertinent Charter rights. [para. 74]

25It may be that there are extenuating circumstances which “attenuate” the seriousness of the police conduct; for example, the need to preserve evidence. Yet at the same time, ignorance or willful blindness of Charter standards is not to be rewarded or excused in the name of good faith. With flagrant and willful abuse of standards, the court may have to dissociate itself. Such conduct tends to support exclusion of evidence. The court must be vigilant with respect to “ Charter infringing behaviour” which is “part of a pattern of abuse.” [para. 75]

Impact on Charter Protected Interest of the Accused

26The concern at this point is “what does the breach say about the legitimacy of the right?” This will depend on the particular right at issue. If the breach of a right is particularly egregious, to allow the breach, in the sense of not responding to it diminishes the significance or validity of the right. In other words, it would not be worth much. [para. 77]

Society’s Interest in an Adjudication on the Merits

27This line of inquiry “asks whether the truth-seeking function of the criminal process would be better served by admission of the evidence or by its exclusion.” There is a social need to have law breakers brought to trial. [para. 79]

28In this aspect of the analysis, the reliability of the evidence obtained as a consequence of a breach is significant. If the breach undermines or causes one to question the reliability of the evidence, the tendency would be to exclude such evidence as it neither serves the interest of the individual accused nor society. “Conversely, exclusion of relevant evidence and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from a public perspective, thus bringing the administration of justice into disrepute.”[para. 81].

29If evidence derived from a breach facilitates the “discovery of truth and adjudication of the case on its merits” that must be weighed against those factors indicating exclusion. The court must ask, “Does vindication of the specific Charter violation through the exclusion of evidence extract too great a toll on the truth-seeking goal of the criminal trial.” [para. 82]

30Another factor under this line of inquiry is the importance of the evidence to the case for the prosecution. Would exclusion effectively “gut” that case? [para. 83]

31The seriousness of the offence can cut both ways. Exclusion of evidence may have an immediate effect; namely the undermining of public confidence. In addition, what effect would there be with respect to the long term repute of the system (which is the focus of the s. 24(2) inquiry?) “The short term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer term repute of the administration of justice.” [para. 84]

32The section 24(2) judge considers the three lines of inquiry described above, and decides on balance whether, “the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute.” [para. 85]

33The application of the revised analysis was considered in relation to specific types of evidence. One of the types of evidence germane to this was “ (c) Non-Bodily Physical Evidence” .

34The court explained that the determination of the seriousness of the Charter – infringing conduct would be a fact-specific determination.

35The Charter breach that was most associated with this type of evidence is a section 8 violation. Privacy is the principal interest at stake. Prevailing jurisprudence had established a range of situations or locations in which privacy could be expected. Privacy relative to the dwelling house (possibly a reflection or belief “that a person’s home is his or her castle”) is considered greater than that of one’s automobile. This paramountcy of the privacy of the home is also recognized in R. v. Blake 2010 ONCA 1 , [2010] O.J. No. 48 at para. 28 .

36The third consideration like the other two is fact specific. However, in this consideration reliability is not associated with the actual Charter breach as say would be in a statement of an accused acquired during a contravention of his Charter rights. Obviously with such an example, there is a connection between what is the product or “thing” sought to be admitted and the breach, whether or not it be rights to counsel. There is not only a breach but also a question about how reliable the product would be. With inanimate objects in particular, their reliability is intrinsic.

37Even though the analysis in R. v. Collins [1987] 1 S.C.R. 205 and R. v. Stillman [1997] 1. S.C. R. 607 had been revisited; the court has not jettisoned an assessment of the reliability of evidence which exists independent of a breach.

38Dealing with the first prong of the Grant analysis: how serious was the breach of section 8 rights by officers acting in accordance with a lawful warrant, inspecting a delineated personal item? Certainly, the officer acted in good faith, as indicated above in accordance with objective expectations. As the officer put it, he would have considered himself negligent if he had cavalierly allowed Mr. Grant to exit with his cocaine or possibly a weapon. This is not a picture of police misconduct; the public would expect the officer to do what he did.

39With respect to the second prong, the impact on the Charter protected interest of the accused, this particular search does not undermine the legitimacy of the right to be free from unreasonable search and seizure. It does not do so because this was a reasonable search vs. an unreasonable one. The latter is the only search the citizen is protected from.

40With respect to the societal interest in an adjudication on the merits, one notes to begin with that the evidence obtained is “real.” It exists independent of the accused. It would sound absurd to members of the public that items found during a legitimate search would be excluded. In that case, the citizen would wonder why we have a scheme of pre-authorization which assesses whether a particular location will yield evidence of a particular crime.

41To exclude this evidence would do away with the trial. It would effectively acquit the accused. This is contrary to a public expectation that there be an inquiry as to whether or not this accused possessed prohibited items for a particular purpose. Public confidence in the administration of justice would be diminished and impaired. The public would think that we do not have any confidence in our pre-trial decision making processes.

42Having balanced all of the three factors enumerated in R. v. Grant, this Court is of the view that the exclusion of this evidence would bring the administration of justice into disrepute. Accordingly, the evidence is to be admitted.

Whitten J.