Court File and Parties
COURT FILE NO.: CR-18-30000232-0000 DATE: 20190508
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
MILTON BROWN
RULING
BEFORE THE HONOURABLE JUSTICE J. COPELAND on February 21, 2019, at TORONTO, Ontario Courtroom 7-5
APPEARANCES:
S. Bryne, Mr. Counsel for the Crown A. Craig, Ms. Counsel for Milton Brown
Table of Contents
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
W I T N E S S E S
E X H I B I T S
February 21, 2019
R U L I N G
COPELAND, J: Orally
Milton Brown is charged with three offences, all relating to alleged possession of a loaded firearm on or about October 29th, 2017. The weapon was found pursuant to a search of an address with a warrant. The defence challenges the validity of the warrant, and seeks exclusion of the evidence of the finding of the firearm and ammunition.
Originally, Crown counsel resisted the application on a number of grounds, as follows: 1) that Mr. Brown did not have a reasonable expectation of privacy in the premises searches; 2) that Mr. Brown abandoned any expectation of privacy by the fact that someone (it is disputed what the evidence would prove about who) threw the firearm out the window into a neighbouring yard; 3) at the pre-trial, Crown counsel had indicated that the Crown was also seeking to rely on step six of Garofoli to uphold the warrant, because the warrant is largely supported by information from a confidential informant, which had been redacted from the copy provided in disclosure (and provided to the Court on the motion).
At the outset of the motion, counsel advised that they had narrowed the issues. The only issue that would be argued was whether Mr. Brown had a reasonable expectation of privacy in unit #84 of 10 Empiringham Drive. Crown counsel advised that if the Court were to find that Mr. Brown had a reasonable expectation of privacy in the unit, then the Crown would not seek to uphold the warrant, or resist the application to exclude the evidence. I thank counsel for working together to narrow the issues.
The evidence on the application consisted of an affidavit and viva voce evidence from Mr. Brown, as well as an affidavit from a legal assistant to counsel for the defendant appending some portions of the disclosure, including the information to obtain the search warrant.
As the evidence was quite brief, I will not summarize it at the outset. I found Mr. Brown to be a generally credible and reliable witness. There were some minor flaws in his evidence, but I find that they do not detract from his overall credibility and reliability. I will address these in my analysis. I find that overall he was consistent in his evidence. I also find that he was forthright and fair in the answers he gave in cross-examination. Indeed, Crown counsel did not challenge his credibility or reliability in a general way, but rather raised a couple of points which I will address in my analysis.
The thrust of Crown counsel's argument on the application was not that Mr. Brown's evidence was not credible or reliable, but rather, that according to the Crown, even accepting it to be true, it did not establish a reasonable expectation of privacy in the premises for which the warrant was obtained.
In addition to finding Mr. Brown to be credible, there was some other evidence from the investigation that was supportive, to some degree, of his evidence on the issue of reasonable expectation of privacy.
First, the police "found in" forms and notes related to the execution of the search support that Mr. Brown lived at the residence. During argument I asked about the fact that these documents were effectively hearsay, and how could I use them on the application. Crown counsel very fairly agreed that I could use them on the basis that the notes in these documents were consistent with what the witnesses would have testified had they been called as witnesses.
The relevant portion of these forms include the following: that on the form completed by police for Mr. Brown, his home address was listed as 10 Empiringham Drive, #84. Further, to the extent that the police asked the other individuals who lived at unit #84 who lived there, they told the police that Mr. Brown lived there.
Second, photos taken by police in the bedroom that Mr. Brown testified was his, show an Ontario Drug Benefit eligibility card in Mr. Brown's name, found in the drawer of a bedside table.
Third, the information to obtain the search warrant refers to the address for which the warrant was issued as "the dwelling house of Milton Brown". In particular, the affiant for the search warrant states that he "has reasonable grounds for believing and does believe that there are in certain premises, namely the dwelling house of Milton Brown, at 10 Empiringham Drive, unit #84, Toronto, in the said region, items [see Appendix A] that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence."
I have considered the decision of the Supreme Court of Canada in R. v. Jones, [2017] 2 S.C.R. 696 at paras. 16-34, regarding a Charter applicant relying on aspects of the Crown's case to establish aspects of a Charter claim.
The circumstances in this case are not exactly the same as Jones, as the Crown is not relying on Mr. Brown having control of the room as proof of an element of the offence. Rather, based on the application materials and the Crown synopsis, it appears that the Crown claim for possession would rely on evidence that an officer would testify that he saw Mr. Brown holding the bag in which the gun was found and throw it out the window, and presumably the Crown would also rely on Mr. Brown's presence. However, in my view the principle in Jones entitles me to give at least some weight to the statements by the affiant for the search warrant in considering reasonable expectation of privacy.
Crown counsel argued that not every piece of paper in the Crown brief invokes the Jones principle. I agree that is true. But an information to obtain a search warrant is not just any piece of paper. Given the importance of evidence on oath or affirmation that the place to be searched will afford evidence to the constitutionality of a search warrant, the affiant's statement that the place was "the dwelling house of Milton Brown" is important.
While I do not give this factor a lot of weight, it strikes me as an uncomfortable position for Crown counsel to be arguing that Mr. Brown does not have a reasonable expectation of privacy, when the officer who was the affiant on the information to obtain the search warrant swore or affirmed that the address to be searched was "the dwelling house of Milton Brown".
It is not in dispute that as the Charter applicant, Mr. Brown bears the burden of proof on a balance of probabilities to establish that he had a reasonable expectation of privacy in the premises at issue.
I turn then to the decision of the Supreme Court in R. v. Edwards, [1996] 1 S.C.R. 128, as this case is essentially an application of the law as set out in Edwards.
In Edwards, Justice Cory held that the assessment of whether an individual has a reasonable expectation of privacy in particular premises or property should be assessed in light of the totality of the circumstances. Justice Cory enumerated a list of seven factors that may be considered in assessing the totality of the circumstances. The seven factors are not an exhaustive list. I will not list the factors, but I will consider them one by one in a moment.
I note in passing that one of the cases on which Crown counsel put significant reliance was the Court of Appeal decision in R. v. Le, 2018 ONCA 56. Crown counsel conceded that it was factually different, but argued that the dicta in Le about territorial privacy was of assistance. I agree that Le is of assistance, although I do not read it in exactly the same manner as Crown counsel. However, I do flag that I am aware that Le is currently on reserve before the Supreme Court of Canada. Neither counsel asked me in any way to hold my ruling until Le was decided, a decision I agree with in the circumstances. I will address Le further in the course of my analysis.
Counsel for Mr. Brown argues that considering the totality of the circumstances, the Court should find that Mr. Brown had a reasonable expectation of privacy in the premises at issue. He gave evidence that he lived there, that it was his only residence, and that it was his home. He had lived there for at least four months. He has his own room. He kept all of his possessions there. He could come and go as he pleased. And he could invite friends over to the home and into his room as he pleased, and did not have to ask permission to do so.
Crown counsel argues that considering the totality of the circumstances, the Court should not find that Mr. Brown had a reasonable expectation of privacy in the premises. Crown counsel argues that even though the evidence shows that Mr. Brown had lived at the residence for at least several months, he was merely a privileged guest.
Crown counsel argues that because ultimately Ms. Johnson could ask Mr. Brown to move out, or could tell him not to bring certain friends over, although she had never done so, this means that Mr. Brown had insufficient ability to control the property or regulate access to have a reasonable expectation of privacy.
I turn then to the application of the Edwards factors. The first factor is presence at the time of the search. Mr. Brown was present at the time of the execution of the search warrant. I do not place a tremendous amount of weight on this factor, but it is corroborative of Mr. Brown's evidence that he resided at unit #84. Further, as Justice Doherty notes at paragraph 54 of Le: "Presence at the property at the time of a search can be considered along with the totality of the circumstances as one relevant factor in assessing whether an individual has control over and could regulate access to the property."
The second factor is possession or control of the property or place searched. I will deal with this issue in a moment with ability to regulate access to the property, as the issues are closely related.
The third factor is ownership of the property or place. Mr. Brown did not own the property. This is one factor to be considered along with the other circumstances.
The fourth factor is history of use of the property. History of the use refers both to the nature of use of the property by the defendant and the time or length of use.
I accept Mr. Brown's evidence that he moved into unit #84, which was rented by Ms. Johnson, after his family was evicted from his parents' home. He was close family friends with Ms. Johnson and her adult sons, and had known them his whole life. Ms. Johnson's sons were similar in age to Mr. Brown, all in their late twenties. It was through one of Ms. Johnson's sons (who also lived at unit #84) that he asked if he could move in to Ms. Johnson's home.
I find that Mr. Brown had lived there for at least four months prior to the execution of the search warrant. Although he did not have a formal rental agreement, either written or oral, he treated the home as his residence. I further find that based on Mr. Brown's evidence about Ms. Johnson's conduct, which I accept, she also treated the home as Mr. Brown's residence. He had his own bedroom. Mr. Brown kept all of his personal belongings at the home. He was free to come and go as he pleased. He was often home alone and responsible for the house. He was free to have friends over as he pleased. He did not have to ask permission to have friends over. He bought groceries for his own use and for the use of others. He contributed to rent at times. I accept that he did not have a formal rental agreement or a required amount that he had to contribute to rent or groceries. I also accept his evidence that he was given privacy in his bedroom, and no-one else could go into his bedroom without his permission.
I note that Crown counsel flagged in his submissions that Mr. Brown was a little bit inconsistent about how long he had lived in the residence. In his affidavit, Mr. Brown said four months. In his examination in-chief he said six or seven months. When asked about this in cross-examination, Mr. Brown testified that the four months in the affidavit was just an estimate, and when he thought about it further that six to seven months was a better estimate.
Crown counsel argued that this raised an issue of reliability, but not credibility of Mr. Brown's estimate of how long he had lived at the residence. However, Crown counsel conceded that it was not a significant issue as the record was clear that Mr. Brown had lived at the residence for an extended period of time. I agree with this assessment, and I find this position taken by Crown counsel to be fair. I find, based on the evidence I have heard, that Mr. Brown had lived at the residence for at least four months. It may have been longer. Given the extended period of four months that he had been living there, with his own room, as his only residence, I find that this is a long enough period of time and in the circumstances to show an intent both on the part of Mr. Brown, and by her conduct on the part of Ms. Johnson, to treat the residence as his home.
Crown counsel made significant argument about the fact that had she wished, Ms. Johnson could have asked Mr. Brown to move out, or said certain friends could not attend at the home. The evidence discloses that this never happened. However, I will address this issue in relation to control over the property and ability to regulate access.
Crown counsel argues that the length of use of the property is of limited significance in the sense that, Crown counsel argues, if Mr. Brown did not have a reasonable expectation of privacy on, for example, the first weekend he stayed at the residence, time alone can not change his expectation of privacy.
I find that this submission of Crown counsel reflects an incomplete assessment of the relevance of history of use of the premises. First of all, length of occupation does not stand alone, it must be looked at with the nature of use, and also with the other Edwards factors in considering the totality of the circumstances.
Second, in the circumstances of this case, the length and nature of Mr. Brown's occupation of the residence is a significant consideration that is different than if he had just been there for one weekend. The fact that he lived in the home for at least four months, and had no other residence, and kept all of his possessions there and saw friends there as one would in one's own residence, is evidence that both Mr. Brown and Ms. Johnson treated Mr. Brown as a resident of the home, not as a visitor. This inference would not necessarily be available on the first weekend he had stayed there.
For these reasons, I find that Mr. Brown's history of use of the property - the whole unit, and in particular the bedroom that was his room, establishes that he lived in #84 as his residence, and had done so for at least four months prior to the execution of the search warrant. He lived there in the same manner as Ms. Johnson's adult sons. He had his own room. He bought groceries for his own use, and the use of others. He contributed to rent at times. I acknowledge that he did not have a formal rental agreement, or a required amount he had to contribute to rent or groceries. He could come and go as he pleased and have friends in the home as he pleased. I find that this past use, which was ongoing at the time of the search, is a strong indicator of a reasonable expectation of privacy on the premises.
The fifth Edwards factor is the ability to regulate access to the property. As I have said, I will address this issue together with control over the property.
Ability to exercise control over the property and to regulate access are important factors in considering whether a person has a reasonable expectation of privacy. This is clear from Edwards, and from Le.
In my view, the case law is clear about two points in relation to the issues of having control over property, and the right to regulate access.
First, although these factors are important considerations in the totality of the circumstances from Edwards, they are not determinative. A court must consider the totality of circumstances, and no single factor determines the outcome: Edwards, supra; R. v. Reeves, 2018 SCC 56 at para. 39; R. v. Jarvis, 2019 SCC 10 at para. 60; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608 at para. 38.
Second, the concepts of control of a property and ability to regulate access are not absolute, all or nothing concepts. Rather, they lie along a spectrum: Reeves, supra at paras. 36-37; Jarvis, supra at para. 61. If a person has closer to absolute control over property and ability to regulate access, these factors will be more supportive of a reasonable expectation of privacy. If a person is closer to no control over a property or ability to regulate access, these factors will tend not to support a reasonable expectation of privacy. If a person has a significant amount of control over a property, and a significant amount of ability to regulate access, then it can support a reasonable expectation of privacy (but still must be considered in the context of all of the circumstances). I find that this is particularly so in the situation of a dwelling with multiple residents.
I have already outlined that I accept Mr. Brown's evidence that he treated the home as his residence. I also find that based on Mr. Brown's evidence about Ms. Johnson's conduct, which I accept, she treated the home as Mr. Brown's residence. He had his own bedroom. Mr. Brown kept all of his personal belongings at the home. He was free to come and go as he pleased. He was often home alone and responsible for the house. He was free to have friends over as he pleased. He did not have to ask permission to have friends over.
I also accept his evidence that he was given privacy in his bedroom, and only he had access to his bedroom.
Crown counsel asked a series of questions at different points in the cross-examination of Mr. Brown making the suggestion that if she wished to do so, Ms. Johnson could have asked Mr. Brown to move out of the home, or could have told him that certain friends of his were not welcomed in the house. I find that Mr. Brown was consistent and forthright in his answers to these questions. He said that yes, Ms. Johnson could have asked him to move out of the home, but she had not done so, and he would not expect her to do so without giving him notice. On the issue of friends, he said that he did not have to ask permission to bring friends into the house, and that Ms. Johnson had never raised an issue with any of his friends. But he agreed that if she wanted, she could have said to him that a particular friend was not welcome in the house.
As I have noted, Crown counsel did not argue that Mr. Brown was not a credible witness overall, but there was one area where he argued Mr. Brown was not credible. This related to an exchange in cross-examination where, after Mr. Brown had said that Ms. Johnson gave him privacy in the bedroom and would not tell him what to do there, Crown counsel asked a series of questions asking Mr. Brown if Ms. Johnson had actually said to him words to the effect of, "you can do whatever you want in your room, whether I like it or not, legal or illegal, I don’t care."
I have re-listened to that portion of the cross-examination on the DRD. I find that Mr. Brown was not saying in his evidence that Ms. Johnson actually said words to the effect of, "you can do whatever you want in your room." Rather, the whole exchange is clear that what Mr. Brown is saying is that Ms. Johnson gave him the privacy to do what he wanted in his room. Crown counsel attempted (as he was properly entitled to do in cross-examination) to get Mr. Brown to agree (or disagree) that Ms. Johnson actually explicitly said that. But I find that that is not what Mr. Brown said in his answers. I appreciate that when Crown counsel was making his submissions, he did not have the ability to play back the DRD and review the exchange. In the circumstances, I do not find anything in this exchange that causes concerns for me about Mr. Brown's credibility.
The crux of Crown counsel's argument in relation to reasonable expectation of privacy is that because Ms. Johnson could have asked Mr. Brown to move out, and because she could have said certain of his friends could not come into the house, although she never did either of those things, Mr. Brown did not have control over the property or authority to regulate access.
I reject this argument. On the record before me, I find that Mr. Brown had a significant ability to control the property and to regulate access to it. It is true that had she wanted to, Ms. Johnson could have asked Mr. Brown to move out, or limited what friends he could have in the house, but in fact she never did either of those things. To the extent that at the time of the search, Ms. Johnson allowed Mr. Brown to live there as a resident, as his home, and bring guests in as he pleased, and in effect treated him like an adult child of the household, I find that he had significant ability to control the property and regulate access to it.
Further, in my view, Crown counsel's argument suffers from two legal flaws. First, it treats two of the Edwards factors as determinative, rather than considering the totality of the circumstances.
Second, it treats ability to control the property and regulate access as absolute, all or nothing concepts. As I have outlined, the case law does not support this approach. I acknowledge that when asked during submissions if these concepts were not absolute, and fell along a spectrum, Crown counsel agreed that they did fall along a spectrum. But respectfully, in my view the substance of his argument is based on treating control and ability to regulate access as all or nothing concepts.
Crown counsel put substantial weight on the decision of the Court of Appeal in Le in arguing that Mr. Brown had no reasonable expectation of privacy. Mr. Byrne fairly conceded that the facts of Le were very different, but argued that the approach to territorial privacy outlined by Justice Doherty in Le was applicable. While I agree that I am bound by any principles of law in Le, I do not read it the same way as does Crown counsel.
First, as noted by Crown counsel, it is factually distinguishable. There was no argument in Le that Mr. Le was in any way a resident of the property at issue. It had been found as a fact that Mr. Le had no possession or control of any kind over the backyard, nor any means to regulate access, nor any history of use of the property. On the evidence he was simply a visitor on that particular date in the backyard.
Second, although Justice Doherty states in Le that the two Edwards factors of control of the property and ability to regulate access are "key" factors that play "a central role" in the analysis, he is also clear that he is applying the Edwards totality of the circumstances test, and one must consider all the relevant factors. Control and ability to regulate access are not in themselves determinative: see Le at paras. 36, 41, 45 and 49. I pause to note that I have found on the facts in this case that Mr. Brown did have a significant level of control over the property and a significant ability to control access.
Third, in my view, Justice Doherty's reasons in Le are clear that the concept of having control of the property and the ability regulate access are not absolute, all or nothing concepts. Rather, in particular, I note the language used at paragraphs 48, 52 and 53, which speak of things short of absolute control that will be relevant to assessing the level of control or authority to regulate access in assessing the totality of the circumstances. At paragraph 48, he refers to the possibility of "a relationship with the owner or occupant that would establish some special access."
At paragraph 52 he states: "The right to be left alone when exercised in relation to real property must, in my view, include some ability, either as a matter of law, or in the circumstances as they existed, to control who can access and/or stay at the property. One cannot realistically talk about a reasonable expectation of privacy in respect of real property without talking about an ability to control, in some way, those who can enter upon, or remain on, the property." I emphasize the words "some ability... to control" and "an ability to control in some way."
At paragraph 53, Justice Doherty refers to the fact that there may be circumstances where an invited guest has de facto power to control who can access or stay on a property.
These aspects of Justice Doherty's reasons in Le are consistent with the authorities I have already referenced that support the proposition that control and ability to regulate access lie along a spectrum, and one does not need to show absolute control or ability to regulate access to a property in order to rely on these factors as supporting a reasonable expectation of privacy.
I will address one other factual issue before leaving this aspect of the Edwards factors.
Although Crown counsel did not put significant weight on this issue, I have considered the issue of Mr. Brown's evidence that he did not have a key to the home. His evidence in examination-in-chief was that he did not have a key to the home because the practice at the home was not to lock the door. Because of this he never asked for a key. Crown counsel did not challenge the credibility of this evidence in cross-examination.
I accept that having a key to premises is some evidence supporting control and ability to regulate access (but I note it is not conclusive - as Mr. Edwards had a key to his girlfriend's apartment). Some might think that it is unusual in a big city in the 21st century to leave the doors unlocked. But in light of my finding that Mr. Brown was generally a credible witness, and that he was not challenged on his evidence that the residents of unit #84 had a practice of leaving the door unlocked, I accept his evidence on this issue. Based on that, I find on the facts of this case the presence or absence of him having a key is a non-issue.
The relevance of a person having a key is that it is evidence of their ability to have access to the premises at will. Mr. Brown's evidence supports that he had access to the premises at will.
On the record before the court, I find that Mr. Brown had a significant amount of control over the premises, and in particular over his bedroom. I find that he had a significant amount of ability to regulate access. In substance, the evidence supports that his control over the property and ability to regulate access was only subject to Ms. Johnson's ultimate authority. But in practice she allowed him to live there as his residence, and she allowed him to have friends in as he pleased. Although she had the right to ask him to move out or to say he could not have certain friends there, she had never exercised it. And I find that this factor does not lessen Mr. Brown's expectation of privacy at the property in relation to people other than Ms. Johnson, that is, the world at large, including the police.
I turn then to the sixth Edwards factor, the existence of a subjective expectation of privacy. Mr. Brown testified that he had a subjective expectation of privacy in the home, and in particular in his bedroom. I accept his evidence on this issue. His subjective belief is amply supported by his use of the property, and significant ability to control the property and regulate access, which I have outlined.
The last Edwards factor is the objective reasonableness of the expectation of privacy. Considering all of the factors I have addressed, and the totality of the evidence, I find that Mr. Brown's expectation of privacy in the home was objectively reasonable. He had been living there as a resident for at least four months. He had his own bedroom. He could come and go as he pleased and have guests in as he pleased. He treated the unit as his home, and on the evidence before me, Ms. Johnson by her behaviour treated the unit as Mr. Brown's home.
In considering the objective reasonableness of Mr. Brown's expectation of privacy, I also consider the issue from a normative perspective, as indicated in numerous decisions of the Supreme Court.
I find that Mr. Brown's expectation of privacy in the premises was objectively reasonable, in the totality of the circumstances, when considered from a normative perspective. The Supreme Court has repeatedly emphasized that whether a person has a reasonable expectation of privacy should be approached from a normative perspective. That is, do we as a society believe that as a rule, individuals should have a reasonable expectation of privacy in a given set of circumstances in a free and democratic society: Jarvis, supra at para. 68; Reeves, supra at para. 28.
The closest analogy to Mr. Brown's circumstances I can think of, and in my view it is a very close analogy, is that of an adult child who moves back in to his or her parents' home. The child may not have a formal rental agreement, either written or oral. The child may not regularly contribute to expenses. I will assume, as in Mr. Brown's situation, some contribution to rent and food, but not a regular or required one.
I asked counsel during submissions if either counsel was aware of a case with similar facts, in particular a case involving parents and adult children. Counsel was not aware of any similar cases.
In my view, in the circumstances of this case, and in the circumstances of an adult child who had moved back in with their parents (or never left), society would expect both Mr. Brown and the hypothetical adult child to have a reasonable expectation of privacy in the home they share, in the case of Mr. Brown with Ms. Johnson and her sons, and in the case of an adult child with their parents.
In both cases, the parent, or Ms. Johnson, ultimately has the right to ask the child, or Mr. Brown, to move out. In both cases, the parent or Ms. Johnson, has the ultimate right to regulate access in the sense of telling Mr. Brown or the child that for example, certain friends are not welcome in the home. But in my view, in the circumstances where the child, or Mr. Brown, is living in the home as their only residence, for an extended period of time, our society would expect that the individual would have a right to be free from either warrantless searches, or searches pursuant to invalid warrants in their home.
In sum, considering all of the Edwards factors together, I find that Mr. Brown had a reasonable expectation of privacy in the unit, and in particular in his bedroom.
I want to address two other arguments made by Crown counsel. One relates to the Edwards decision and one relates to the issue of consent searches.
In relation to Edwards, Crown counsel argued that Mr. Brown's circumstances were akin to Mr. Edwards, and for this reason Mr. Brown also did not have a reasonable expectation of privacy. I reject this argument. On the findings of fact in Edwards, Mr. Edwards' situation was very different than Mr. Brown's.
In Edwards, the Supreme Court held that based on the findings of fact at trial, apart from some history of use of his girlfriend's apartment, Mr. Edwards met none of the other totality of the circumstances factors. The trial judge had found, and the Supreme Court of Canada accepted, that Mr. Edwards was an "occasional visitor" to the girlfriend's apartment. The Court accepted a finding that he was no more than a privileged guest. Although he had a key and kept some belongings at the girlfriend's apartment, Mr. Edwards maintained a separate residence. He did not contribute to rent or household expenses, except for allegedly assisting his girlfriend to purchase a couch.
The circumstances of Mr. Edwards are very different from Mr. Brown's circumstances. As I have outlined, I find that the evidence supports that Mr. Brown was a resident of the home at #84, 10 Empiringham Drive. He had lived there for at least four months. He had no other residence. He had his own bedroom, which was private. And both he and Ms. Johnson treated him as a resident of the home.
I acknowledge that there was a finding in Edwards that Mr. Edwards had a key to his girlfriends apartment, and in this case, as I have discussed, Mr. Brown did not have a key. As I have outlined, I have considered this factor, but in the totality of the circumstances in find that Mr. Brown's situation is very different from Mr. Edwards.
I turn then to Crown counsel's argument in relation to consent searches. Crown counsel made the point several times in argument that Ms. Johnson could have consented to a police search of the home, including Mr. Brown's room. This is, of course, hypothetical, as the police did not proceed by way of a consent search. But at a more fundamental level, I have two difficulties with this argument.
First, as a matter of law this is far from settled. Very recently, in Reeves at paras. 19-26, the Supreme Court expressly left open the issue of whether police entry into a shared home with the consent of one of the residents violates section 8 of the Charter. I acknowledge that the context in which the Supreme Court made these comments was not entirely analogous, in that the facts involved a husband and wife. But the Court's comments refer to "a shared home", suggesting that the comments were not limited to the marital context.
This brings me to my second point, in relation to the consent search argument. Assuming for the sake of argument that Crown counsel is correct that Ms. Johnson could have consented to a police search of the home without Mr. Brown's section 8 rights being infringed, that is a different question from whether Mr. Brown had a reasonable expectation of privacy in the home, and in his room. Even if Ms. Johnson's consent to a police search could avoid a section 8 breach, this does not mean that Mr. Brown does not have a reasonable expectation of privacy in the home or in his room.
Rather, it would mean that had the police proceeded by way of a consent search, assuming that the issue left open in Reeves were ultimately decided in favour of allowing one occupant of a shared resident to consent to a search, there would be no section 8 breach. That is a different question from whether Mr. Brown had a reasonable expectation of privacy in the home that would shield him from either warrantless searches without consent, or searched with a warrant that turns out to be invalid.
In effect, the Crown in relying on the risk analysis rejected in Wong, Duarte, and more recently in cases such as Reeves, Jarvis and Marakah. The risk that Ms. Johnson would consent to a search is not the same as the risk that the police, would enter the home without a warrant and without consent, or with an invalid warrant.
For these reasons, I am satisfied on a balance of probabilities that Mr. Brown had a reasonable expectation of privacy in 10 Empiringham Drive, unit #84 in general, and in particular in his bedroom.
Certification
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act
I, TARA BROWN, certify that this document is a true and accurate transcript of the recording of R. v. Milton Brown, in the Superior Court of Justice, held at 361 University Avenue, Toronto, Ontario, taken from recording 4899_7-5_20190221_092729 10_COPELAJ, which has been certified in Form 1.
(Signature of Authorized Person) ACT ID # 3083536071
(Date)