ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 4119/13

DATE: 2014/12/09

B E T W E E N:

Her Majesty the Queen

Tyler Shuster, for the Respondent

Crown/Respondent

• and -

Benjamin Hudon-Barbeau

Daniel Moore, for Benjamin Hudon-Barbeau

Accused/Applicant

Luanna Larose
Accused

Andrew Burton, for Luanna Larose

HEARD at Welland, Ontario:
October 20, 21 & 22, 2014

The Honourable Justice J. R. Henderson

DECISION ON APPLICATION

Introduction

1This is an application brought by the accused, Benjamin Hudon-Barbeau (“Hudon-Barbeau”), for an order excluding the evidence, including a loaded handgun, that was seized by Niagara Regional Police Services (“NRPS”) officers from a hotel room on August 19, 2012.

2Hudon-Barbeau alleges that NRPS officers breached s. 8 of the Canadian Charter of Rights and Freedoms (“the Charter”) when, on August 18, 2012, two officers conducted a warrantless search of his hotel room at the Marriott Gateway Hotel in Niagara Falls, Ontario. The observations made by these two police officers on the warrantless search formed the basis for a search warrant that was executed at the hotel room on August 19, 2012. Therefore, Hudon-Barbeau requests an order pursuant to s. 24(2) of the Charter excluding the evidence that was seized from the hotel room on the execution of the search warrant.

3The Crown submits that Hudon-Barbeau did not have a reasonable expectation of privacy in the hotel room as his entitlement to possession of the room had expired by the time of the warrantless search by the police officers. In the alternative, the Crown submits that if there was a reasonable expectation of privacy, the police officers were authorized to conduct the warrantless search of the hotel room and did so in a reasonable manner. Thus, the Crown submits that there has been no breach of s. 8 of the Charter, and that all of the evidence that was seized by the police officers is admissible at the trial.

4Further, Hudon-Barbeau alleges, and the Crown acknowledges, a breach of s. 9 of the Charter as Hudon-Barbeau was not taken before a justice within 24 hours of his detention as required by s. 503(1) of the Criminal Code of Canada. Both parties acknowledge that this breach of s. 9 on its own does not give rise to a remedy under s. 24(2) of the Charter, but that it is a factor that should be considered if this court finds that there has been a breach of s. 8 of the Charter.

The Facts

5Hudon-Barbeau is charged with, among other things, possession of a loaded prohibited firearm contrary to s. 95(2) of the Criminal Code of Canada, and possession of cannabis contrary to s. 4(5) of the Controlled Drugs and Substances Act.

6I find that the co-accused Luanna Larose (“Larose”) rented room #2221 of the Marriott Gateway Hotel (“the hotel room”) for the period of August 17 to 18, 2012. In accordance with the rental agreement Larose was required to check out and vacate the room by 12:00 p.m. on August 18, 2012.

7At approximately 12:00 p.m. on August 18, 2012, Larose presented at the front desk of the hotel with a person who identified himself as her boyfriend (later identified as Hudon-Barbeau). The two accused asked one of the hotel managers, Nathan Stoner (“Stoner”), about staying an extra night at the hotel, or possibly checking out later in the afternoon as they had booked a jet boat tour for that afternoon. Stoner brought the duty manager, Laura Haldorson (“Haldorson”), into the discussion.

8I find that both accused were initially informed by the managers that the hotel was sold out, and that there was no room available to rent for that night; however they would be allowed until 1:00 p.m. to vacate the hotel room. Hudon-Barbeau was not satisfied with that response, and argued with the managers.

9Subsequently, the managers used their discretion to offer a room to the two accused even though the hotel was fully booked, knowing that some guests do not show for their reserved rooms. Accordingly, Haldorson offered to rent a hotel room to the two accused persons for that night at a specific rate. That offer was not accepted as Hudon-Barbeau was unhappy with the rate.

10Hudon-Barbeau then angrily argued for a less expensive rate, using foul language that was directed toward both managers. He told the managers that he wanted to stay in the hotel room and that they were making him late for his jet boat tour. The managers were not able to provide Hudon-Barbeau with a rate that he found acceptable. I find that there was no agreement reached between the hotel managers and the two accused for the rental of a hotel room for an extra night.

11Haldorson then told the two accused that she would allow them until 3:00 p.m. to vacate the hotel room, but that after 3:00 p.m. she would go into the room and pack up their belongings. At that point Hudon-Barbeau angrily replied that he was a member of Hell’s Angels and that if she touched his stuff, she would be “fucking sorry”. I find that there was no agreement reached to allow the two accused to occupy the hotel room beyond 3:00 p.m. on August 18, 2012.

12I accept Stoner’s evidence that, given the threat made by Hudon-Barbeau, Stoner assumed that the hotel staff would not go into room #2221 until the accused had returned from the jet boat tour. I also accept Stoner’s evidence that the final decision as to whether or not to enter the hotel room after 3:00 p.m. was the responsibility of Haldorson as Stoner’s shift ended at 3:00 p.m.

13The two accused then left the hotel premises and neither one of them returned to the hotel until after 5:00 p.m. At 4:05 p.m., because other guests were waiting for rooms, Haldorson made the decision to enter room #2221 to pack up the belongings of the two accused and clean the room for the next guests.

14Haldorson and four staff members then entered the hotel room and started to pack up the belongings of the accused. One of the staff members found a bag of marijuana and a handgun in an unlocked safe that was in the room. Haldorson directed the staff member to put the handgun on the counter in the room, and then Haldorson contacted the NRPS.

15Shortly before 5:00 p.m. two police officers, Rachel Bice (“Bice”) and Matt Staffen (“Staffen”), arrived at the Marriott Gateway Hotel. Both officers entered room #2221 and directed the hotel staff to vacate the room. Then, both officers walked through the hotel room to ensure that no one else was present in the room. At the time both officers visually inspected the handgun that was located on the counter and both determined that it appeared to be real and loaded. They did not remove anything from the room and they did not search through any luggage, bags, or drawers. The two officers were in the hotel room for approximately one minute.

16Then, the two officers left the hotel room, locked the door, and arranged for NRPS officers to guard the room until other officers could apply for a search warrant.

17Larose returned to the hotel lobby shortly after 5:00 p.m. at which time she was arrested. As Larose was being led away by police officers Larose yelled at Hudon-Barbeau to “go” and he drove off in a Mercedes motor vehicle. He was pursued by another officer and ultimately arrested a few minutes later.

18Thereafter, NRPS officers conducted interviews of witnesses, and applied for a search warrant. The hotel room was searched pursuant to the search warrant in the afternoon of August 19, 2012, at which time the handgun and the bag of marijuana were seized.

19Hudon-Barbeau was taken into custody at approximately 5:30 p.m. on August 18, 2012, but he was not taken to bail court the following morning at 9:00 a.m. Members of the NRPS testified that the paperwork for Hudon-Barbeau’s bail hearing had not been completed by the morning of August 19, 2012, as the officers were more focused on other aspects of the case. Therefore, Hudon-Barbeau was not taken to bail court until sometime during the day of August 20, 2012.

The Law and the Issues

20Section 8 of the Charter reads, “Everyone has the right to be secure against unreasonable search or seizure.”

21The right set out in s. 8 is only engaged if the accused had a reasonable expectation of privacy in the place that was the subject of the search. Where the accused’s reasonable expectation of privacy is in issue, the Supreme Court of Canada in the case of R. v. Edwards, 1996 255 (SCC), [1996] S.C.J. No.11, has provided a two-step process for the determination of a s. 8 challenge.

22In the Edwards decision, Cory J. wrote the following at para. 33:

It is important to emphasize that generally, the decision as to whether an accused had a reasonable expectation of privacy must be made without reference to the conduct of the police during the impugned search. There are two distinct questions which must be answered in any s. 8 challenge. The first is whether the accused had a reasonable expectation of privacy. The second is whether the search was an unreasonable intrusion on that right to privacy. See Rawlings v. Kentucky, 448 U.S. 98 (1980). Usually, the conduct of the police will only be relevant when consideration is given to this second stage.

23Further, the question of whether there was a reasonable expectation of privacy is to be determined on the basis of the “totality of the circumstances”. At para. 45 of the Edwards decision Cory J. wrote:

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 the objective reasonableness of the expectation.

24Because the accused alleges a breach of a Charter protected right, the onus is on the accused to prove, on a balance of probabilities, that the accused had a reasonable expectation of privacy in the place that was searched. See the case of R. v. Pugliese (1992), 1992 2781 (ON CA), 71 C.C.C. (3d) 295 (OCA), at p. 302.

25Regarding the second step of the analysis, if the accused is able to prove that he had a reasonable expectation of privacy in the place that was searched, the onus then shifts to the Crown to prove, on a balance of probabilities, that the search was reasonable.

26Warrantless searches are presumed to be unreasonable. In order to prove that a warrantless search was reasonable the Crown must prove that (a) the search was authorized by law, (b) the law itself is reasonable, and (c) the manner in which the search was carried out was also reasonable. See the case of R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, at p. 278.

27In summary, in the present case, if Hudon-Barbeau can prove that he had a reasonable expectation of privacy in the hotel room, then the onus shifts to the Crown to prove that the warrantless search was reasonable. If the Crown is unable to prove that the warrantless search was reasonable, then the conduct of the two police officers would constitute a breach of s. 8 of the Charter. If that were the case, I would then consider the appropriate remedy under s. 24(2) of the Charter, as discussed in the case of R. v Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 67-86.

Analysis

28I will first consider whether the accused has proved on a balance of probabilities that he had a reasonable expectation of privacy in the hotel room. There are several cases that provide some guidance.

29In R. v. Mercer, 1992 7729 (ON CA), [1992] O.J. No. 137 (OCA), the two accused were registered as guests in a hotel suite. They had placed a “do not disturb” sign on the door to the room and had left the room. A chambermaid entered the room for the purpose of cleaning the room, and discovered a pillowcase full of money in a closet. The chambermaid notified a manager who went to the room to inspect the pillowcase and observed the money as well as a brick of cannabis resin. The hotel manager then called police officers who subsequently entered the room without a search warrant. At trial the two accused were convicted of possession of a narcotic for the purpose of trafficking.

30On appeal, at para. 13 of the decision, Arbour J.A. acknowledged that the Supreme Court of Canada in R. v. Wong, 1990 56 (SCC), [1990] 3 S.C.R. 36, had concluded that “…a hotel room is a home away from home, a private enclave where we may conduct our activities free from uninvited scrutiny.”

31Then, at para. 14, Arbour J.A. wrote:

I am not persuaded that hotel guests’ awareness that cleaning staff will enter their rooms at least daily removes the reasonable expectation of privacy. Objects not left in plain view or stored in areas which do not require daily maintenance, such as inside drawers, closets, toiletry bags, brief cases and suitcases, can be reasonably expected to remain private despite access to the room by hotel staff for cleaning purposes.

32At para. 23 Arbour J.A. wrote:

The warrantless and surreptitious search of a hotel room, upon mere suspicion of criminal activity, when registered guests were absent and had left a “do not disturb” sign on the door, constitutes an impermissible intrusion by the state on a legitimate and reasonable expectation of privacy.

33However, having found that there was a breach of s. 8, the Court concluded that the evidence should not be excluded from the trial pursuant to s. 24(2) of the Charter, and dismissed the appeal.

34In the case of R. v. Stevens, 2011 ONCA 504, [2011] O.J. No. 3164 (OCA), the accused, Stevens, lived in an apartment that was rented from the landlord by Stevens’ girlfriend, Beaver. Beaver had not paid rent and the landlord had obtained an eviction order. Subsequently, Beaver and the landlord resolved matters such that the landlord was not entitled to evict Beaver. Unfortunately, the sheriff’s officers inadvertently attempted to enforce the eviction order and entered the apartment. Upon doing so, the sheriff’s officers observed two gun cases. The sheriff’s officers called police officers who entered the apartment on a warrantless search. The police officers opened the gun cases, and the secured the premises until other officers obtained a search warrant. The trial judge found that there had been no breach of s. 8, and Stevens was convicted.

35On appeal, the convictions were set aside. The Ontario Court of Appeal found that given the agreement between Beaver and the landlord that the eviction order would not be enforced, Stevens and Beaver continued to have a reasonable expectation of privacy in the apartment. There had been a breach of s. 8 of the Charter and the evidence seized by the police officers was excluded pursuant to s. 24(2).

36In the case of R. v. Johnston, 2014 ONCA 704, an accused had rented a room at a luxury hotel that catered to business executives who required long term accommodations. During his 56-day stay at the hotel the accused had amassed a large unpaid hotel bill. Several demands for payment had been made, and on one occasion the accused attempted to pay the hotel bill by way of a forged cheque.

37The hotel manager, believing that the accused was committing a fraud, contacted police who attended at the hotel. Further, the manager informed police that the accused employed an armed guard. Police officers arrested the accused outside of the hotel room, and then entered the room without a warrant because of their concerns about a firearm and the armed guard. The trial judge accepted that the accused had a reasonable expectation of privacy in the hotel room, and that the warrantless search was a breach of s. 8. However, the trial judge, after considering s. 24(2), admitted the fruits of the search into evidence and convicted the accused. On appeal, the reasoning of the trial judge and the conviction was upheld.

38These cases demonstrate that a hotel room can be characterized as a “home away from home”, and that a person may enjoy a reasonable expectation of privacy in a hotel room or a rented residence. However, where an accused’s reasonable expectation of privacy is in dispute a determination of the issue depends upon “the totality of the circumstances”, including the seven factors referenced in the Edwards decision.

39In the present case, the accused is only able to rely on a few modest factors that might support his position that he had a reasonable expectation of privacy in the hotel room. Those factors include the fact that when Larose rented the room on the previous day Larose had been given a keycard to the room; that Larose probably gave a keycard to Hudon-Barbeau or otherwise permitted Hudon-Barbeau to use the hotel room; that Hudon-Barbeau probably had been present in the hotel room on the previous evening; that some of Hudon-Barbeau’s possessions probably remained in the room; that Hudon-Barbeau had demanded that he be permitted to leave his possessions in the hotel room until he returned from the jet boat tour; and that Hudon-Barbeau may have subjectively believed that the managers had acquiesced to his demand to leave his possessions in the hotel room.

40In my view these factors fall far short of proving that Hudon-Barbeau had a reasonable expectation of privacy in the hotel room at 5:00 p.m. on August 18, 2012. I find that the evidence clearly establishes that Larose rented the room on behalf of herself and Hudon-Barbeau, but that the right of both accused to occupy the room expired initially at 12:00 p.m. on August 18, 2012. Then, as a result of demands made by Hudon-Barbeau, the accused’s right to occupy the hotel room was extended to 3:00 p.m. on August 18, 2012.

41Despite Hudon-Barbeau’s demands and threats, the hotel managers did not agree to extend any right to occupy the hotel room to Hudon-Barbeau beyond 3:00 p.m. Haldorson specifically told Hudon-Barbeau that if he had not returned by 3:00 p.m. she would go into the room and pack up his belongings. Objectively, Hudon-Barbeau had no right to use, occupy, or possess the hotel room after 3:00 p.m.

42I accept that Hudon-Barbeau may have subjectively believed that he had the right to occupy the room, or leave his possessions in the room, after 3:00 p.m. That is, it may be inferred from his behaviour that he believed that he had intimidated the hotel managers into acquiescing to his demands. However, any such belief, objectively considered, would be entirely unreasonable.

43Therefore, at 5:00 p.m. on August 18, 2012, when the police officers entered the hotel room, I find that Hudon-Barbeau had no reasonable expectation of privacy in the hotel room. Because there was no reasonable expectation of privacy in the hotel room at 5:00 p.m., there can be no breach of s. 8 of the Charter. Hudon-Barbeau’s application fails for this reason alone.

44In the alternative, even if I were to find that Hudon-Barbeau had a reasonable expectation of privacy in the hotel room at 5:00 p.m., I find that the police officers in this case had the authority to briefly search the room and they did so in a reasonable manner. I find that the Crown has proved that the warrantless search by the police officers meets the three-part test set out in the Collins case.

45Regarding the first and second parts of the Collins test, I find that Police Officers Bice and Staffen were authorized at law to enter into and search the room pursuant to the common law duty of police officers to protect life and safety. The right to search for this purpose is sometimes called a “safety search”. The authority to conduct a safety search, and the reasonableness of the law, was discussed in the cases of R. v. MacDonald, 2014 SCC 3, and Dedman v. The Queen, 1985 41 (SCC).

46In the MacDonald decision, the Supreme Court of Canada discussed the two components of a safety search, and at para. 35 observed that the first component, that the police officer’s conduct falls within the general scope of police duty, is easily satisfied. That is the case here.

47The second component of a safety search, proof that the police action was justifiable, was referenced by the Court in Dedman at p. 35 as follows:

[T]he interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference.

48Regarding necessity, in the present case the two police officers had information that hotel staff had discovered a handgun that remained in the room. For the protection of public safety, I accept that the police officers intended to clear the room and secure it until a search warrant could be obtained. One option would have been for the officers to simply ask staff to vacate the room, and then lock the doors behind them. Counsel for Hudon-Barbeau submits that the police officers should have chosen this option, and if they had done so it would not have been necessary for them to enter the room.

49However, I find that if the police officers had taken this approach the police officers would not have been able to confirm that there was no other person left in the room, and that there was nothing of a dangerous nature left in the room. I accept Staffen’s testimony that if he had not personally entered the room he would not have been able to satisfy himself, based on what hotel staff had told him, that the room was safe. Thus, a brief search of the room was necessary.

50Regarding reasonableness, the decision to conduct a safety search in this case must be analyzed in the context of the threats made by Hudon-Barbeau. He told Haldorson that if staff touched his stuff they would be sorry, and that he was a Hell’s Angels member. This suggests that Hudon-Barbeau had a propensity for violence and a disregard for the safety of others. Thus, it was reasonable for the officers to exercise caution in the present case.

51Further, the reasonableness of the search has to be considered in light of the privacy that Hudon-Barbeau could reasonably have expected. In this case, if Hudon-Barbeau had any privacy right in the hotel room, it would be at the low end of the scale. Specifically, the hotel room was not Hudon-Barbeau’s residence, and Hudon-Barbeau had no right to live in or occupy the room. At best, if there was any privacy right, it was only a modest temporary right that would have permitted Hudon-Barbeau to keep his possessions in the room until sometime in the late afternoon or early evening of August 18, 2012.

52In these circumstances I find that a brief inspection of the room, without searching through luggage or drawers, was necessary and reasonable for the purpose of conducting a safety search. Therefore, I find that the search was authorized by law, and that the law itself is reasonable.

53This same analysis also satisfies the third part of the test set out in the Collins decision. That is, I find that the officers carried out the warrantless search in a reasonable manner in order to ensure that the room was reasonably safe before it was locked and secured.

54Therefore, in the alternative, even if there was a reasonable expectation of privacy in the hotel room, I find that the warrantless search by the two police officers satisfies the three-part test set out in the Collins case.

55Finally, given my findings with respect to the absence of a reasonable expectation of privacy, and in the alternative the reasonableness of the search, I need not consider the remedy that may be available under s. 24(2) of the Charter, and I need not consider the consequences of any breach of s. 9 of the Charter.

Conclusion

56In summary, I find that Hudon-Barbeau did not have a reasonable expectation of privacy in the hotel room at the time of the warrantless search by the police officers. Therefore, the application fails for this reason alone.

57In the alternative, even if I were to find that Hudon-Barbeau had a reasonable expectation of privacy in the hotel room at the relevant time, I find that there was no breach of s. 8 of the Charter.

58Therefore, Hudon-Barbeau’s application to exclude the evidence that was seized by NRPS officers from the hotel room is dismissed.

Henderson J.