ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
Kevin Matthews, for the Federal Crown
Respondent
- and -
David Real Arsenault
Karen Scullion, for the Applicant
Applicant
HEARD: August 18, 2015 at Thunder Bay, Ontario
Regional Senior Justice D. C. Shaw
Reasons On Issue of Standing To Assert a Breach of Section 8 of the
Charter of Rights and Freedoms and Leave to Cross-examine
1The applicant, David Real Arsenault, brings an application for an order quashing a General Warrant which authorized entry onto the property of a third party, and for an order under s. 24(2) of the Charter of Rights and Freedoms, excluding all evidence seen on that property, on the grounds that Mr. Arsenault’s rights under s. 8 of the Charter were violated. Mr. Arsenault also seeks leave to cross-examine the affiant of the Information to Obtain the General Warrant.
2Counsel for Mr. Arsenault and counsel for the Crown agreed that the application should be heard in two stages. The first stage deals with the applicant’s standing to assert a s. 8 interest in the third party’s property and leave to cross-examine the affiant of the Information to Obtain.
Background
3The background facts are set out in the parties’ respective factums, in the testimony of the lead investigating officer, Detective Constable Ryan Landgraff of the Ontario Provincial Police, in the Information to Obtain a General Warrant to Search, sworn by Detective Constable Landgraff, and the testimony of Mr. Arsenault.
4In May 2011, Detective Constable Landgraff received information from a confidential informant who reported that Mr. Arsenault had been growing marihuana.
5Two years previously, in 2009, Detective Constable Landgraff had been involved in the investigation of an outdoor marihuana grow operation resulting in Mr. Arsenault’s conviction for production of marihuana.
6On May 25, 2011, Detective Constable Landgraff conducted surveillance on Mr. Arsenault. Mr. Arsenault was operating a pick-up truck registered in his brother’s name. This was the same vehicle he had been using in connection with the production of marihuana in 2009.
7Mr. Arsenault picked up a passenger. They stopped at a convenience store to exchange a propane tank.
8At approximately 5:00 pm they drove to a property and the vehicle pulled into a driveway at 3696 Dawson Road. The passenger got out of the vehicle and approached a gate across the driveway. The vehicle was seen by police backed up in the driveway, approximately 100 feet in, parked in front of an old, uninhabitable shed. The driveway opened up into an open space, somewhat smaller than a baseball diamond. The area where the truck was parked contained the shed, a locked storage container, and a dilapidated fabric car port that had collapsed on a Volkswagen car registered to Mr. Arsenault. The driveway was bordered by trees until it opened up near the shed.
9A title search revealed that the property was owned by Mr. Arsenault’s brother.
10Detective Constable Landgraff swore an Information to Obtain a General Warrant to Search. The General Warrant was issued by Justice Sargeant of the Ontario Court of Justice on May 26, 2011.
11Mr. Arsenault, who is 42 years of age, confirmed in his testimony that the property was owned by his brother. He said that there was a second driveway to the property, about 400 feet from the first driveway, that led to what he described as a “temporary house”, approximately 700 to 800 feet up the driveway. This second driveway was also bordered by trees. The temporary house could not be seen from the road nor from the area of the first driveway.
12Mr. Arsenault’s brother resides in Longlac. Mr. Arsenault resides at 14 Spencer Road in Thunder Bay. Mr. Arsenault testified that his brother had stayed at the temporary house when he travelled to Thunder Bay. However, Mr. Arsenault, himself, had never stayed in the building.
13Mr. Arsenault said that there was a gate across the first driveway, but that it was not locked. He did not know the exact dimensions of the property.
14Initially in his testimony, Mr. Arsenault said he had been on the property multiple times. Later in his evidence, he said that he was not there often. He said that his brother was there more frequently. Mr. Arsenault said that he had a vehicle on the property, onto which a fabric car port had collapsed, and a storage container in which he put books, university papers and his university exams.
15Mr. Arsenault stated that his brother had authorized him to tell people to leave the property. He and his brother had put up “no trespassing signs”. There were video cameras on the property because the property had been vandalized many times. He cut grass on the property and had cleared brush. He said that he felt that he had some rights to privacy on the property.
16In cross-examination, Mr. Arsenault acknowledged that he would not have been able to be on the property unless his brother had allowed him to access it. He agreed that if his brother had wanted to exclude him from the property, his brother could have done so. He agreed that his brother could have required him to remove his car. He agreed that his brother had ultimate control over the property.
Discussion
A. Standing
17Before the court can make a finding that there has been an unreasonable search and seizure in violation of s. 8 of the Charter, the party asserting the claim must satisfy the court that he or she has standing to make the application. The question here is: Did Mr. Arseneault have a reasonable expectation of privacy in respect of 3696 Dawson Road? That assessment must be made in light of the “totality of the circumstances”. See R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, at para. 31; R. v. Cole, [2012] 3 S.C.R., at para. 39.
18In Edwards, at para. 45, the Supreme Court of Canada outlined a non-exhaustive list of factors to be considered in determining whether an accused has a reasonable expectation of privacy:
(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership or control 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.
19In Edwards, the accused asserted a privacy interest in the apartment of his girlfriend where a significant amount of drugs was found. The court found that the accused had demonstrated no expectation of privacy in the apartment. His girlfriend was the legal tenant. He was described by his girlfriend as “just a visitor” who stayed over occasionally. The accused kept a few personal belongings at the apartment, but he did not contribute to the rent or household expenses. Although only the accused and his girlfriend had keys to the apartment, the accused lacked the authority to regulate access to the premises. The girlfriend could admit anyone to the apartment whom the accused wished to exclude, and could exclude anyone whom the accused wished to admit.
20In R. v. Pugliese, 1992 2781 (ON CA), [1992] O.J. No. 450 (C.A.), (cited at length with approval in Edwards), Finlayson J.A., at paras. 11-15, held that s. 8 is available to confer standing on an accused who had a reasonable expectation of privacy in the premises where the seizure took place, even though he had no proprietary or possessory interest in the premises or the articles seized. Although property rights do confer privacy rights in a given case, s. 8 of the Charter is directed to the protection of the security of the person, not the protection of his property. The true test of a protected constitutional right under s. 8 of the Charter is whether there is a reasonable protection of privacy.
21Mr. Arsenault submits that he had a reasonable expectation of privacy, both subjectively and objectively. In support of his submission he points to the fact that he stored important documents that he wanted to keep safe, in the storage container, that he had been authorized by his brother to control who could come on the property, and that he had posted “no trespassing” signs on the property.
22In my view, having regard to the totality of the circumstances, Mr. Arsenault has failed to establish the requisite expectation of privacy in 3696 Dawson Road.
23Although the factors listed in Edwards are not exhaustive, it is significant that Mr. Arsenault is unable to comply with most of those factors.
24Mr. Arsenault was not present at the time of the search. He did not have possession of the property. The control that he had, to tell unwanted visitors to leave, flowed solely from his brother. This limited control, however, ended whenever Mr. Arsenault was not present on the property. Mr. Arsenault acknowledged that his brother had ultimate control over this property. Mr. Arsenault had access to the property only at the sufferance of his brother, who could have told Mr. Arsenault to leave the property and to remove his car and the items in the storage container. Mr. Arsenault had no ownership in the property. He had no interest in the property as a tenant or as a bailee. He made no financial contributions to the acquisition or maintenance of the property. He did not attend the property often, as he admitted and as can also be concluded from the fact that the fabric car port had collapsed on top of his car. Apart from using the property to store his car and his books and university papers, his use was focused on maintaining the property by occasionally cutting grass and clearing bush and putting up “no trespassing” signs for his brother.
25Although the first driveway was gated, it was not locked. The property in question was a wooded, unoccupied tract of land, not immediately surrounding or associated with the “temporary house”, which itself was rarely occupied by Mr. Arsenault’s brother and never occupied by Mr. Arsenault.
26Any expectation of privacy that Mr. Arsenault may have had in the property was not an expectation that I would recognize as “reasonable”.
27Although Mr. Arsenault may have had a reasonable expectation of privacy in the locked storage container on the property, the General Warrant was not directed at the storage container. It was to authorize a surreptitious entry onto 3696 Dawson Road to view the property at large for the purposes of providing evidence to support a Controlled Drugs and Substances Act warrant to search.
28Because no personal right of Mr. Arsenault was affected by the issuance of the General Warrant, it follows that he does not have standing to request that the General Warrant be quashed.
B. Cross-examination of Affiant of Information To Obtain
29Having found that Mr. Arsenault does not have standing, his application to cross-examine Detective Constable Landgraff, as the affiant of the Information to Obtain, and to cross-examine the related sub-affiants, must fail. However, even if I had concluded that Mr. Arsenault did have standing to contest the General Warrant, I would not have granted him leave to cross-examine.
30On the application for leave to cross-examine, counsel for Mr. Arsenault expressly acknowledged that she was not arguing the sub-facial validity of the warrant. She was only challenging its facial validity. This is key to the issue of whether Mr. Arsenault is entitled to cross-examine the affiant and sub-affiants.
31In R. v. Sadikov, 2014 ONCA 72, at paras. 37 and 38, Watt J.A. described the difference between a facial validity challenge and a sub-facial challenge:
37A facial validity challenge requires the reviewing judge to examine the ITO and to determine whether, on the face of the information disclosed there, the justice could have issued the warrant: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 19. The record examined on a facial review is fixed: it is the ITO, not an amplified or enlarged record: R. v. Wilson, 2011 BCCA 252, 272 C.C.C. (3d) 269, at para. 39.
38Sub-facial challenges go behind the form of the ITO to attack or impeach the reliability of its content: Araujo, at para. 50; and Wilson, at para. 40. Sub-facial challenges involve an amplified record, but do not expand the scope of review to permit the reviewing judge to substitute his or her view for that of the authorizing judicial officer: Araujo, at para. 51; and R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452. The task of the reviewing judge on a sub-facial challenge is to consider whether, on the record before the authorizing justice as amplified on the review, the authorizing justice could have issued the warrant: Araujo, at para. 51; and Garofoli, at p. 1452. The analysis is contextual: Araujo, at para. 54. The reviewing judge should carefully consider whether sufficient reliable information remains in the amplified record, in other words, information that might reasonably be believed, on the basis of which the enabling warrant could have issued: Araujo, at para. 52.
32Because the record on a facial review is confined to the Information to Obtain, itself, and does not include a review of an amplified record, cross-examination to impeach reliability and credibility of the affiant and sub-affiants has no role to play. Although leave to cross-examine may properly be granted where there is a sub-facial attack, there is no basis to grant leave on a facial challenge.
33This is a complete answer to Mr. Arsenault’s application to cross-examine and must lead to a dismissal of that application.
The Hon. Mr. Justice D. C. Shaw
Released: September 10, 2015
COURT FILE NO.: CR-13-0110
DATE: 2015-09-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
Respondent
- and -
David Real Arsenault
Applicant
REASONS ON ISSUE OF STANDING TO ASSERT A BREACH OF SECTION 8 OF THE
CHARTER OF RIGHTS AND FREEDOMS AND LEAVE TO CROSS-EXAMINE
Shaw R.S.J.
Released: September 10, 2015
/mls