ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE: 11-90000570-0000

DATE: 20140715

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

SHU QIANG WU
Applicant

Faiyaz Alibhai, for the Crown

Glen Orr Q.C., for Shu Qiang Wu

HEARD: June 14 and 15, 2014

Thorburn J.

Application to Exclude Evidence

1. The Evidence

[1] Shu Wu is charged with possession, and production of MDMA, ketamine and methamphetamine for the purpose of trafficking.

[2] In early October 2007, the R.C.M.P. received information that Mr. Girouard was involved in suspicious transactions related to the purchase of chemical precursors used in producing illegal drug pills.

[3] On October 16, 2007, the R.C.M.P. were further informed that Mr. Girouard was expected to make a pick up at Charles Tenant and Co. of a large quantity used as the binding agents for illegal drugs. Later that day, the individual was observed by the R.C.M.P. to pick up product. He was followed to 8 Pipers Green Avenue in Toronto where he went into a garage of a house for about 30 minutes with the door closed.

[4] On October 19, 2007, R.C.M.P. Officers conducted surveillance at 8 Pipers Green Avenue, Toronto. Unknown items from the residence were being loaded into the van. The van departed from the residence.

[5] Thereafter, a marked Toronto Police Service vehicle stopped the Chevrolet Astro van for an alleged traffic violation. Without prior judicial authorization, police found in the van, a bucket of green colored tablets believed to be MDMA (Ecstacy). They then searched the van and found a 5 gallon pail containing MDMA.

[6] Shortly after that time, at approximately 20:28 hours, at 8 Pipers Green Avenue, Constable Palmquist observed a male leave the residence and go to the driver’s side door of a Toyota Corolla. He was arrested in the driveway.

[7] Police questioned the arrested male but he did not respond. Officer Palmquist testified that he saw a second male either on the porch or at the front of the house (although he did not record this in his notes).

[8] Four R.C.M.P. members entered the residence.

[9] A male was located and arrested at the foot of the basement stairs of the residence. This male was later identified as Shu Qiang Wu, the Applicant. While going through the house the officers observed large quantities of white pills, three large mechanical pressing devices, and a room full of tin foil trays filled with colored substances believed to be MDMA.

[10] Parole papers belonging to the Applicant were found in the house.

[11] Mr. Wu did not give evidence on this Application.

2. The Issue

[12] The sole issue to be decided on this Application is whether Wu had a reasonable expectation of privacy which was breached at the time the police entered the home and arrested him.

3. The Law re Privacy and Section 8 Right to be Secure Against Unreasonable Search and Seizure

[13] Section 8 of the Charter provides that, “Everyone has the right to be secure against unreasonable search or seizure.” The public’s interest in being left alone must be balanced with the state interest in intruding for the purpose of ensuring the safety of the police and public, protection of evidence from destruction, and discovery of evidence to be used at trial.[^1]

[14] The guarantee of security from unreasonable search and seizure only protects a reasonable expectation of privacy.[^2] The Supreme Court in Hunter v. Southam Inc.^3 held that a warrantless search and seizure where there is a reasonable expectation of privacy is prima facie unreasonable.[^4]

[15] In the case of R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128 at para 45, Cory J. articulated the factors to be considered in assessing whether an individual has standing to assert a section 8 Charter right. The totality of the circumstances should be examined. In so doing, the factors to be considered 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;

(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 also United States v. Gomez, 16 F.3d 254 (8th Cir. 1994), at p. 256, R. v. Le, 2014 ONSC 2033 at para 82 and, R. v. Pugliese, (1992), 1992 2781 (ON CA), 71 C.C.C. (3d) 295 (Ont. C.A.), at pp. 301-302.)

[16] There is a high expectation of privacy in one’s own dwelling. (R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13 at para 43; R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297 at para. 140; and R. v. Evans, 1996 248 (SCC), [1996] 1 S.C.R. 8 at para. 42.)

[17] In the case of R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128 at para 45, the accused was the boyfriend and a guest in his girlfriend’s apartment. The court held that this status did not create a reasonable expectation of privacy or give the accused standing to challenge the legality of the warrantless search.

[18] In R. v. Leong, 2011 ONSC 3215, He and Huang were present at the time of the search. In that case, He and Huang were found to have a reasonable expectation in the premises for the following reasons articulated by the trial judge: “I am satisfied on the basis of Ms. Wen’s testimony that they were also present on other occasions and that they came and went on their own. This suggests that they had a key to the house and that they thereby exercised some control over the basement. That control commenced at the end of November 2006 with respect to He, and sometime later with respect to Huang.”

Analysis and Conclusion

[19] In this case, it is agreed that the there is no evidence of Wu’s connection to the home other than the fact that he was found in the home at the time police entered the home and that he left a bag of his personal effects in the living room. In particular, there is no evidence he had an ownership interest in the property, historical use of the property, the ability to regulate access, or the right to admit or exclude others from the place. Moreover, as Mr., Wu did not testify, there is no evidence to support the existence of a subjective expectation of privacy.

[20] For these reasons, I find that Mr. Wu had no reasonable expectation of privacy in the home such that police should have been precluded from entering the dwelling without a search warrant.

Thorburn J.

Released: July 15, 2014

[^1]: Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145 at pages 159-168.

[^2]: Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145 at pages 167-168.

[^4]: See also R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265 at para. 22 and R. v. Nguyen, [2006] O.J. No. 4393 (Sup. Ct) at para. 66 (QL).