BRACEBRIDGE COURT FILE NO.: CR-23-04 DATE: 20240304 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – NOAH HOPE Applicant
William Barnes, for the Provincial Crown Kimberly Miles for the Federal Crown
Jay Herbert, for the Applicant
HEARD: February 21 and 22, 2024
REASONS FOR DECISION
HEALEY, J.:
Nature of the Application
[1] The Applicant, Noah Hope, seeks an order finding that his rights under s. 8 of the Charter have been breached, and granting the remedy sought under s. 24 of the Charter that all evidence obtained in violation of his rights be excluded.
Overview
[2] On a snowy winter night in December 2022, the Applicant’s car left the highway and slid into a ditch. No other vehicles were involved.
[3] Two O.P.P. officers who were out on patrol happened to be passing by shortly after the accident occurred, each in a separate vehicle. First came PC Wright, who noticed the vehicle in the ditch near the tree line. A few minutes later, PC Arruda stopped when he saw the other police vehicle. The Applicant had already called a tow truck and was waiting for its arrival.
[4] Not long after, Brad Green of Baseline Towing and Heavy Recovery attended at the scene with his tow truck. Both officers stayed at the scene to assist and alert oncoming northbound traffic.
[5] PC Wright obtained the Applicant’s driver’s licence for the purpose of preparing an accident report, in case there was any damage to the vehicle.
[6] Once the accident vehicle was pulled from the ditch to the shoulder of the highway, PC Wright entered the vehicle without the Applicant’s permission. Why he did so is in dispute between the parties. The evidence substantiates that Mr. Green first pointed out to the officer that the Applicant had left items in the vehicle. Crown counsel submits that it was an act of helpfulness, done with the intention of providing the Applicant with belongings that he may need that were left in the vehicle, specifically a coat and backpack. The Applicant’s counsel submits that the officer was looking for an excuse to enter the vehicle and look around and seized upon Mr. Green’s observation to make that entry.
[7] When he grabbed the backpack, PC Wright felt a gun inside.
[8] The Applicant was arrested, and a series of additional searches of his person and the vehicle followed. The Applicant is now facing 10 charges, including firearm offences, breach of a weapons prohibition and three counts of possession of a Schedule I substance for the purpose of trafficking.
Issues
[9] The threshold issue to be decided is whether the Applicant has proven on a balance of probabilities that he had a reasonable expectation of privacy in the locations searched. If he does not meet that onus, he cannot advance a claim that his rights were violated by the police search and seizure of the vehicle and its contents.
[10] It is only if the threshold question is decided in an applicant’s favour that the inquiry into whether the search was constitutionally valid must proceed, in which case this court must decide whether:
(1) The Crown has proven that PC Wright found the gun when he was not engaged in a search or seizure, as was argued;
(2) The Crown has demonstrated on a balance of probabilities that: (1) the search was authorized by law and (2) the authorizing law was reasonable, and the search was exercised in a reasonable manner; and
(3) If a breach of s. 8, whether the evidence should be excluded under s. 24(2) of the Charter.
Evidence
[11] The Applicant gave evidence by affidavit, which contains the following information:
(a) On December 16, 2022, the Applicant was in a single motor vehicle collision when his vehicle went off the road and into a ditch along Highway 11 near Lindgren Road, Huntsville;
(b) The Applicant called Baseline tow company and made plans with the tow driver to have the car towed to their impound lot, and then waited for the truck. The tow truck arrived before the two officers;
(c) The Applicant gave his licence to PC Wright and was given a citation for driving at night without a qualified driver, since he only had his G1 licence;
(d) It was snowy and dangerous weather and police were concerned that the car may not be drivable, and PC Wright told him that he would need to have someone with at least a G2 licence move the vehicle;
(e) He understood that the car was still his responsibility to move, and the police were not going to be involved in that;
(f) The tow truck driver put the vehicle on a flatbed and said that he would not drive the Applicant, so the police offered him a ride into Huntsville;
(g) The Applicant accepted the ride and then went back to the vehicle, now hitched up to the tow truck, which was running and ready to leave. He retrieved cell phones from the centre console, and then went to sit inside PC Arruda’s police car. He was not “frisk searched” before entering the vehicle;
(h) He was not told that he was being detained, or that he was under suspicion, arrest or investigation. He understood that police were offering him a ride to help him out. However, during this time he heard PC Arruda call him a “suspect”;
(i) From where he was sitting inside the police car, the Applicant saw PC Wright rummage through the back of the hitched-up car, and then walk back and speak with PC Arruda;
(j) The police came back to the cruiser and told the Applicant that he was under arrest. He asked why, and they told him that they found a handgun in the vehicle;
(k) The Applicant told the officers that they do not get to search the car, and that he has rights. They brought him out of the cruiser and searched him.
(l) PC Arruda then drove him to the Huntsville detachment, where he was processed and put in a cell;
(m) The officers’ notes do not mention that the Applicant was under arrest, that the car was to be inventoried or searched, or that the police had any control of, or intention to control, the vehicle;
(n) Later, additional charges were laid against him for possession for the purpose of trafficking, which the police have said result from the search of the car by a canine unit back at the detachment. The police used the evidence they found during their warrantless searches to apply for a warrant to search cell phones seized from him, which resulted in further evidence that he understands will be used in the prosecution.
[12] Three witnesses testified for the Crown. Up to the point at which PC Wright entered the vehicle and discovered the gun, there are few inconsistencies in their descriptions of how the scenario unfolded. Their recollections also largely accord with the Applicant’s evidence. Where differences in their recollections occur, it is not on material matters. For example, the preponderance of evidence establishes that the officers arrived before the tow truck and that it was not a flatbed.
[13] The evidence establishes that the Applicant was the sole occupant and driver of the vehicle, confirmed by the fact that his were the only footprints in the snow leading from the vehicle. His vehicle slid into the ditch as he was travelling northbound on Hwy 11 south of Lindgren Road. There is no suggestion that another vehicle was involved in the accident.
[14] It is also established that it was the Applicant who called Baseline towing. As Mr. Green testified, he anticipated that the driver of the vehicle would be responsible for payment.
[15] PC Wright noticed the vehicle at approximately 12:10 a.m. when he happened to be passing by on patrol. He pulled over to the shoulder and approached the vehicle to ensure that there were no injuries. PC Wright requested the Applicant’s licence only for the purpose of preparing an accident report, if it was determined that there was damage to the vehicle.
[16] The officer described the vehicle as a maroon-red Ford Fusion sedan. He recorded the plate in his notes. PC Wright also asked the Applicant about the ownership of the vehicle, to which the Applicant responded that he owned it. He noted that the Applicant was wearing a red puffy coat.
[17] He observed that the Applicant held only a G1 licence, so was therefore prohibited from driving on a highway unless accompanied by a qualified driver and prohibited from driving between midnight and 5 a.m., pursuant to sections 5(1) and 5(1)(6) of O.Reg. 340/94 under the Highway Traffic Act, R.S.O. 1990, c. H.8. He returned to his cruiser and made Ministry of Transportation and CPIC queries. He issued two Provincial Offences Act notices (“the citations”) with set fines, which did not contain any requirement that the Applicant appear in court. He gave them to the Applicant without incident. He also informed the Applicant that the vehicle would have to be towed unless a qualified driver was able to come to drive it from the scene.
[18] I find that it was this fact that led to the initial plan for the vehicle to be towed to Baseline’s storage lot, which was close to where the accident occurred. The Applicant had been on his cell phone talking to a female person with the speakerphone engaged throughout his interactions with the police and Mr. Green, but there is no suggestion that he had arranged to have another person come to drive it from the scene. There was also no conclusive evidence given about whether the vehicle remained in drivable condition, as neither officer gave evidence about their qualifications to make such an assessment, and Mr. Green said that he was not asked to make that determination.
[19] The officer also testified that he started to run the plate when he was issuing the citations, and noted that the ownership was not matching up. While the officer was taking these steps, the Applicant remained close by the Ford.
[20] PC Arruda came upon the accident at approximately 12:30 p.m., before the tow truck had arrived. He parked his cruiser behind PC Wright’s with the lights activated to warn oncoming motorists. PC Wright did not mention the licence issue to him. PC Arruda walked down to the vehicle and inspected the damage to the front of the vehicle. He spoke with the Applicant and offered him a ride into Huntsville for safety reasons, because he could not safely walk along the highway. He also offered the Applicant the opportunity to sit in his cruiser to stay warm until the tow truck arrived.
[21] Although the Applicant did go to sit in the cruiser eventually, he may still have been close to his vehicle when Mr. Green arrived. PC Wright said that he directed the Applicant to come away from the vehicle while the cables were being secured, as there is a risk of danger if a cable comes off while it is being winched. This is the only time that there was any direction to the Applicant to leave the vicinity of the vehicle.
[22] PC Wright testified that after the vehicle was pulled from the ditch and on the shoulder and the initial cables removed, the Applicant got into the vehicle and was moving things around. The officer said that he was not paying much attention to what the Applicant was doing and assumed that he was collecting the things that he needed to take with him. Mr. Green also noted that the Applicant got into the vehicle and recalled items being moved either from the front to the back or the back to the front – he could not accurately recall – but did not see what was being moved.
[23] The officers acknowledged that the Applicant was free to go into the vehicle and that no one tried to prevent him from doing so.
[24] The Applicant then walked to PC Arruda’s cruiser, accompanied by that officer. The officer confirmed that he did not conduct a pat down search before the Applicant got into the cruiser.
[25] PC Arruda testified that from his perspective, the vehicle was going to go where the Applicant wanted it to go and was not in police custody.
[26] PC Wright said that he then asked PC Arruda to wait because he wanted to check the VIN and the plate. PC Arruda appeared to have no knowledge of the other officer’s concerns, and no testimony was elicited from him to confirm that PC Wright asked him to wait. Mr. Green testified that the first time that the officer asked him to wait was when he was first on scene, and that this was in relation to the licence issue. Then the officer directed him to pull the vehicle up on the road, and then told him to wait again, but gave him no explanation.
[27] Mr. Green testified that it takes him between 10-15 minutes to hook up a vehicle for towing, and that he walks from one side of the vehicle to the other as he does so. He was standing at the back door of the vehicle when he noticed a coat and backpack inside. He alerted the officer that it was there. Mr. Green does not recall the officer’s names but said that he primarily had contact with only one officer. I find that Mr. Green’s primary contact was with PC Wright, as there is no doubt that he was the officer who opened the car door and found the gun.
[28] PC Wright said that Mr. Green told him that there was a backpack and a coat in the car. He speculated that Mr. Green gave him that information because the tow drivers do no like being woken up by individuals who have left personal items behind.
[29] PC Wright did not walk back to the Applicant to ask whether he needed or wanted those belongings. When cross-examined on this point, he said that he did not do so because his main priority was to clear the accident scene. He acknowledged being aware that the Applicant had just been in the vehicle and had collected things. The officer stated that the Applicant appeared to be ready to go.
[30] More details will be discussed about PC Wright’s entry into the vehicle and discovery of the gun in the context of whether the search was lawful and reasonable, if the Applicant overcomes this threshold issue. However, it is uncontested that PC Wright found a gun when he picked up the backpack, stating that he recognized the shape and feel of it immediately.
[31] PC Wright then communicated to PC Arruda that he had found a gun, and the two officers proceeded to arrest the Applicant. As they did so, PC Arruda recalled that the Applicant questioned why he was being placed under arrest, and was told by PC Wright that a firearm had been found in a bag. PC Wright gave the same information to the Applicant.
[32] As they were asking him to come out of the car and put his hands out so that handcuffs could be applied, the applicant protested that they had no right to search the car. PC Arruda testified that that was the sentiment, but perhaps not his exact words. He also recalled the Applicant saying something along the lines of “I have rights”, and that they do not get to search the car. The officer has recorded in his notes, which are appended as an exhibit to the Applicant’s affidavit, the words “says we don’t get to search the car”, and in quotation marks, “I have rights” and “I didn’t do anything wrong”.
[33] PC Wright denied that the Applicant said, “you do not get to search the car”. He said he had a specific recollection of the Applicant’s failure to use the word “car” and instead recalled that he said, “you do not get to search the bag”. He also denied hearing the Applicant protest that he had rights. However, the officer made no notes of the Applicant’s utterances. For primarily this reason, I prefer the recollection of PC Arruda, which accords with his notes, about the Applicant’s utterances and find that the Applicant was asserting a right in relation to an unlawful search of the car.
[34] A quick roadside search was done, locating two cell phones in the Applicant’s coat pocket. He was read his rights to counsel and cautioned.
[35] The vehicle was taken to the Huntsville detachment, where a search by the canine unit revealed that there were controlled drugs within it. Cash in the amount of $2,360 was also seized. The handgun is alleged to be a Glock 17 9mm, loaded, with a magazine holding a 17-round capacity.
[36] Up to the time that the firearm was found, PC Arruda testified that he was just treating this matter as a motor vehicle collision. He denies having ever referred to the Applicant as a suspect. He agreed that if the accident had occurred closer to Huntsville, the Applicant would have been free to leave to walk into town, but the officers did not want him to walk along the highway for safety reasons. PC Arruda stated that the Applicant was not detained or under investigation in any way before the gun was found. There had been no discussion between himself and PC Wright about public safety, requiring a search or an investigation concerning the vehicle, including an inventory search.
[37] There is no evidence that the Applicant tried to leave the scene, or that he was intending to abandon the vehicle. To PC Arruda, it was clear that the Applicant had possession of the car, but he did not think ownership was ever mentioned, and could not recall whether the Applicant said “my car” or “the car” when being arrested.
[38] PC Wright’s testimony about the searches that he was intending to conduct on the VIN and the licence plate is ambiguous. Although he said that he asked PC Arruda to wait because he wanted to check the VIN and the plate, he also said that he did not communicate his plan to the other officer. He recorded nothing in his notes about these searches that he said he began to conduct at the roadside. At one point he agreed that the Applicant was free to leave with the vehicle at any time if a properly licenced driver showed up and it was determined to be roadworthy, but only once he had completed those searches. He also agreed that the Applicant was free to leave at any time, although he also referred to the need to avoid having a pedestrian walk on the highway.
[39] Despite being at the scene for approximately 48 minutes according to his notes, he never recorded the VIN. He also said that he would not say that he was actively investigating this issue. He agreed that once the VIN was recorded, these searches could have been carried out anytime back at the detachment. He said that his search was interrupted by Mr. Green telling him about the items in the car. I find that he was not actively conducting any searches in his vehicle at the time. I accept the evidence of Mr. Green, who was watching the officers as he hooked up the car, that they were standing outside behind the first cruiser. After that, the officer, who I again infer was PC Wright, came up to him and told him that the vehicle was going to be towed to Baseline’s storage lot, which was when he passed on the information about the coat and backpack remaining in the vehicle.
[40] This evidence does not compel me to find that PC Wright was taking any investigative steps beyond having an intention to record the VIN. Even taking that step was not a particularly pressing one for him, and not one that would have taken more than a few seconds had he gotten to it. He testified that it could even have been a matter of taking a photograph of the VIN. Whatever stage his initial search may have been in when the tow truck arrived, I am satisfied that, at the roadside, the vehicle was not under active investigation.
[41] It was only when PC Wright was back at the detachment at around 2:15 a.m. that he determined that the plates were registered to a later model red Ford Fusion, and the VIN showed that the car was not owned by the Applicant. He testified that later that day the crime unit followed up and discovered that the vehicle was reported as stolen.
[42] Before that finding, PC Wright testified that he believed that it was the Applicant’s vehicle. This supports the Applicant’s submission that the officer was likely not making attempts at the roadside to identify the owner of the vehicle or to investigate whether it was stolen.
[43] The Ministry of Transportation record for the VIN indicates that the registered owner is Aviva Insurance Company of Canada, and the vehicle as a 2016 red Ford F/E. The Ministry record for the plate attached to the vehicle is registered to an individual other than the Applicant, and associated with a 2009 Ford F/L.
Reasonable Expectation of Privacy in the Vehicle
[44] In order to challenge the legality of the search of the vehicle that he was driving and the backpack within it, the onus is on the Applicant to first establish that he had a reasonable expectation of privacy in the vehicle. He must satisfy the court on a balance of probabilities that he subjectively expected the vehicle was a private location and that this expectation was objectively reasonable: see R. v. Edwards, [1996] 1 S.C.R. 128 (SCC) at para. 45 (“Edwards”); R. v. Marakah, 2017 SCC 59, at para. 10 (“Marakah”). It is only if the Applicant can establish that he had a reasonable expectation of privacy that s. 8 will be engaged, and only if successful will the court then go on to determine whether the search of the vehicle and backpack was reasonable.
[45] Whether the claimant had a reasonable expectation of privacy must be assessed in "the totality of the circumstances": see Edwards, at paras. 31 and 45; Marakah, at para. 10.
[46] The factors set out in Edwards that may be considered by a court to determine standing include:
(i) presence [of the accused] 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.
[47] The Ontario Court of Appeal has considered this test in the context of a stolen vehicle in R. v. Balendra, 2019 ONCA 68 (“Balendra”).
[48] In Balendra, the appellate court upheld my ruling as the trial judge that Mr. Balendra did not have a reasonable expectation of privacy in the van that he was driving when arrested. At the time of his arrest, the police had information that led them to believe that the van was stolen. It was also established that Mr. Balendra was driving while under a licence suspension. At para. 23, it was noted by the Court that “the trial judge’s conclusion was based in part on Sgt. Humber’s evidence on the voir dire that the van was stolen, and his evidence that the appellant had no lawful status to operate the van because his driver’s license was suspended”.
[49] At paras. 54 and 55 of the Court’s decision, Harvison Young J.A. concisely summarized the reasons for the outcome of the appeal:
[54] Sgt. Humber searched the van which the appellant had been driving and found, among other things, a bag containing 16 credit cards hidden behind a loose ceiling compartment. The trial judge found that the appellant had not established a reasonable expectation of privacy in the van, noting that this was not a case, such as R. v. Belnavis, [1997] 3 S.C.R. 341, where the driver had the apparent consent of the owner to operate the vehicle. Here, Sgt. Humber testified that the van had been registered as a stolen vehicle. The appellant offered no contradictory evidence regarding his ownership of the van, or regarding any authorization given by the registered owner to operate the vehicle. In short, as the trial judge found, there was no evidence to establish that the appellant had any ability to regulate access to the van or any legitimate privacy interest with respect to it.
[55] As a result, the trial judge found that s. 8 was not engaged by Sgt. Humber’s search of the van. I see no basis to interfere with this finding. The credit cards found inside the van were thus properly admitted into evidence at trial.
[50] The Applicant relies on this case for the proposition that if an applicant can establish the ability to regulate access to a vehicle, even if stolen, then there is a basis to establish a reasonable expectation of privacy. With respect, that analysis is flawed, as it was the fact that the vehicle was stolen and Mr. Balendra had no permission to be driving it, apart from his driving status, that permitted for no possibility that he had control or could regulate access. The argument is also not consistent with the law set out in R. v. Dosanjh, 2022 ONCA 689 (“Dosanjh”) discussed below.
[51] The analysis undertaken in my Reasons, at paras. 44-45 (R. v. Balendra, 2016 ONSC 5143), was this:
[44] Generally, individuals can have a reasonable expectation that state agents cannot enter a vehicle driven by them in order to examine its contents: R. v. Belnavis, [1996] O.J. No. 1853; (1996) 29 O.R. (3d) 321 (Ont. C.A.); confirmed , [1997] 3 S.C.R. 341. However, this was not a case, such as Belnavis, where there is any evidence that the driver had the consent of the owner to operate the vehicle, which in Belnavis was found to give rise to the driver’s ability to control who entered or who was excluded from the vehicle. Such control was considered to be central to the privacy concept: para. 31 (C.A.).
[45] Applying the Edwards framework to the facts surrounding the vehicle in this case, the applicant cannot establish that he had a reasonable expectation of privacy in relation to that location. Of central importance to this case, the applicant’s suspended status as a driver means that he can have no expectation of privacy in respect of a vehicle that he is without lawful status to be operating. What he can expect, in fact, is that on discovery of his presence in and operation of a vehicle, he will be immediately stopped from having any possession of or control over that vehicle in accordance with the provisions of the Highway Traffic Act. His control is fleeting at best. The fact that he holds the keys does not cloak him with the authority to control who enters or uses that vehicle. Even more significantly, the evidence establishes that the applicant was not the owner of the vehicle. Although defence counsel argued that the rental agreements found within the vehicle cannot be used to establish the name of the registered owner of the vehicle without offending the rule against hearsay, it is not necessary to resort to that document to establish ownership. Officer Humber testified that he was able to ascertain the name of the registered owner from the database available to him in the police vehicle. He testified that the registered owner was the same company named on the rental documents. As the party with the onus to establish standing, the applicant could have introduced contradictory evidence about either his ownership of the vehicle, or authorization given to him by the registered owner to operate the vehicle, the latter of which would have gone some distance toward establishing his possession or control of the vehicle. There is no such evidence. The evidence provided by Officer Humber was that it was registered as a stolen vehicle. No contradictory evidence was advanced by the applicant. There is no evidence to establish that the applicant had any ability to regulate access to the van.
[52] The British Columbia Court of Appeal has also dealt with the issue of whether there can be a privacy interest in a stolen vehicle in R. v. Crocker, 2009 BCCA 388, leave to appeal refused (2010), [2009] S.C.C.A. No. 466 (S.C.C.) (“Crocker”). A unanimous court overturned the trial judge’s decision that Mr. Crocker’s s. 8 Charter rights had been infringed when the police conducted a search of the vehicle that he had just entered, which he had been seen operating two days earlier.
[53] In considering the Edwards factors, the Court in Crocker noted at para. 85 that: “there was no evidence of Mr. Crocker's subjective expectation of privacy or any objective criteria to support that subjective belief, if it had existed, such as the historical use of the truck or how and when it came to be in his possession”. In the absence of such evidence, the Court found, at para. 86, that Mr. Crocker had not established that he had any lawful proprietary, possessory or privacy interest in the vehicle, and therefore had no standing to allege a s. 8 Charter breach in the police search of the stolen truck.
[54] While this case is not binding on me, it is persuasive and aligns with other cases provided to me by counsel, in which the outcome turned largely on the lawfulness of the applicant’s possession of the vehicle: Dosanjh; R. v. Cuff (“Cuff”), 2018 ONCA 276; R. v. Blazevic and Baba (“Blazevic and Baba”), 2011 ONSC 7217; R. v. Belnavis, 1996 CarswellOnt 1947 (Ont. C.A.), affirmed , 1997 CarswellOnt 2926 (S.C.C.) (“Belnavis”); and R. v. Campbell-Noel, 2019 ONSC 430 (“Campbell-Noel”).
[55] In Dosanjh, the police searched the electronic data from the "Infotainment system" contained within an Infinity QX60. The vehicle had been rented by the appellant using a false name. One of the issues on appeal considered by Fairburn J.A. was whether the appellant had an objectively reasonable privacy interest in the subject matter of the search, which was the electronic information that was contained in the vehicle’s Infotainment system.
[56] At paragraphs 29-30, Fairburn J.A. analyzed the objective reasonableness of the privacy expectation, focusing on how the appellant came to be in possession of the vehicle. She found the possession to be relevant to an assessment of both the place where the search occurred and the appellant's control over the subject matter (para. 28):
It was the appellant's burden to establish on a balance of probabilities that he had a reasonable expectation of privacy in the subject matter of the search. Although he did not have to demonstrate a proprietary interest in the vehicle, he had to establish something beyond a tenuous connection to it: R. v. Simpson, 2015 SCC 40, [2015] 2 S.C.R. 827, at paras. 50-51; R. v. Lauda, [1998] 2 S.C.R. 683, at para. 1; R. v. Belnavis, [1997] 3 S.C.R. 341, at paras. 20-22. By holding himself out to the rental agency as Jaspinder Nagra — personating Jaspinder Nagra — the appellant came into fraudulent possession of the QX60, thereby rendering his connection to the vehicle tenuous at best. Not only was the appellant in unlawful possession of the QX60 when it was collecting and storing data on the Infotainment system, but he had no colour of right over the vehicle — no excuse for his possession. In short, he could neither use the car nor exclude others from it.
[130] In fact, and in the most minimalist of terms, he was a trespasser in the QX60 when it was collecting and storing the subject matter of the search: Simpson, at paras. 50-51; R. v. Caza, 2005 BCCA 318, 198 C.C.C. (3d) 273, at paras. 32-33. The fact that the appellant fraudulently accessed the place and his lack of control over the QX60 — without a colour of right — are relevant circumstances informing whether he could objectively expect privacy in the data generated by his use of the QX60.
[57] In Cuff, the Court of Appeal upheld a trial decision in which the appellant had been found not to have a reasonable expectation of privacy in the vehicle that he had been driving when stopped by police. Although one distinguishing feature from the case before me is that the appellant in Cuff abandoned control of the vehicle by fleeing the scene, the additional factors that led to the outcome were that the appellant did not own the vehicle, there was no evidence suggesting a historical connection, and there was no evidence that the appellant occupied the vehicle with the owner’s consent, and, therefore, no evidence to suggest that he had any right to admit or exclude anyone from the vehicle (emphasis added). The Court of Appeal stated at para. 14 that it saw no error in the trial judge’s approach.
[58] This analysis accords with that in Belnavis, at para. 33, where the Court of Appeal concluded that Ms. Belnavis had the owner’s consent to operate the vehicle, and “ [a]s such, she could control access to the vehicle and exclude others from the vehicle. Control of access is central to the privacy concept ” (emphasis added).
[59] In Blazevic and Baba, Ricchetti J. was required to decide whether Mr. Blasevic had established a privacy interest in a vehicle that had been reported stolen. There was no evidence that he was in lawful possession or believed he was in lawful possession of the vehicle, or that he was authorized to drive it by its owner or renter. There was also no evidence of any historical use of the vehicle by Mr. Blasevic. At para. 75, Ricchetti J. stated that “possession or control of the property” must mean lawful possession of the property, citing Crocker, at paras. 85-86. In the absence of evidence of lawful possession, Mr. Blasevic failed to establish a reasonable expectation of privacy in the vehicle or its contents.
[60] In contrast, in Campbell-Noel, the applicant was in lawful possession of the vehicle that he was driving when stopped by police because a friend had loaned it to him. Dennison J. concluded that he could therefore regulate who had access to the vehicle (para. 129), and that an expectation of privacy had been established.
Applying the Edwards Factors
Presence at the time of the search
[61] This factor is not in dispute. The evidence establishes that the Applicant was present throughout the entire roadside events. Just before PC Wright went into the vehicle, the Applicant he had been inside it to retrieve his cell phones. Presence is established.
Possession or control
[62] The evidence establishes that the Applicant was the only person to exit the vehicle, he had been the driver, and arranged for and was expected to pay for the tow. He initially relinquished the vehicle to the tow truck driver only for practical reasons.
[63] The theory of the Crown’s case is that the officer went into the vehicle only to collect the Applicant’s belongings, recognizing them to belong to the Applicant. The Applicant may rely upon this theory to try to establish his privacy right: see R. v. Jones, 2017 SCC 60, at para. 19.
[64] This possession and control became significantly diluted upon the discovery of his licence status and issuance of the citations. Similar to Mr. Balendra’s illegal status as the operator of a motor vehicle, the Highway Traffic Act regulation prohibited the Applicant from operating the vehicle in question without a fully licenced driver in the front seat and, in any event, after midnight. His ability to drive the vehicle was not taken from him due to it being unroadworthy, but because of the discovery by the police that he was not lawfully permitted to drive it away from the scene of the accident. There is no indication that a properly licenced driver was coming to assist him, and I can infer that he could not have asked its true owner to come to retrieve it. He could not have instructed the officers that he wanted it left on the side of the highway for later retrieval. The Applicant’s affidavit is silent as to how and when he planned to retrieve it from Baseline’s lot.
Ownership
[65] The Applicant’s affidavit is silent as to the vehicle’s ownership, and throughout it he refers to the vehicle as “the car” as opposed to “my car”.
[66] The evidence compels the conclusion that Aviva owned the car.
[67] The officers’ mistaken belief that the Applicant owned the vehicle throughout their interactions with him does not somehow bolster the Applicant’s privacy interest, as argued by the Applicant’s counsel. Their belief, which was inaccurate and informed by the Applicant’s untruthful response that he was the owner, is not evidence that can assist to establish ownership or control.
Historical use of the vehicle
[68] The Applicant’s affidavit is silent as to his prior use of the vehicle, and when and how it came into his possession. The fact that he was driving it prior to the accident presents only a snapshot in time and is not indicative of historical use.
[69] The Applicant offered no evidence to prove that he had the consent of Aviva to operate the car or have it in his possession.
The ability to regulate access
[70] Without being the owner, and without any evidence that he was driving with the owner’s consent or providing some other valid explanation for his use of the vehicle, I conclude that the Applicant had no recognized legal right to control access to the vehicle or to exclude others from the vehicle. In accordance with the analysis in Dosanjh, he was a trespasser in the vehicle and had possession of it without colour of right. Without lawful possession of the property, his control of it was non-existent.
Subjective expectation of privacy
[71] The evidentiary foundation required to establish a subjective expectation of privacy as element is modest: see R. v. Patrick, 2009 SCC 17 (S.C.C.), at para. 37.
[72] I accept that the Applicant made the utterances recorded by PC Arruda, and that he was asserting a claim to a privacy interest in the vehicle and its contents when he made those statements.
[73] The Applicant’s affidavit is again silent about why he believed that he is entitled to that privacy.
[74] As this case ultimately turns on the objective reasonableness of his expectation of privacy, I give the Applicant the benefit of the doubt that his belief was based on his own interpretation of the law relating to search and seizure. That does not mean, however, that I find that he did not know that he was driving a stolen vehicle. There is insufficient evidence to conclude one way or the other.
The objective reasonableness of the expectation
[75] In the totality of the circumstances, the Applicant’s subjective expectation of privacy in the vehicle is not objectively reasonable. The Applicant has not proven that he had any right to be in the vehicle, or transport or store belongings that may have belonged to him in that vehicle. It is notable that the Applicant’s affidavit is also completely silent on his ownership of the backpack.
[76] Any subjective hope that he should have privacy in the vehicle and its contents is not enough to establish objective reasonableness, when weighed against the fact that he had, at the highest, a tenuous ability to possess it at the time but had no legal basis for regulating access or otherwise exerting control over it. In fact, he has shown zero legal basis to be in possession of it as a driver that night.
[77] In all these circumstances, I conclude that the Applicant did not have a reasonable expectation of privacy in the vehicle or its contents and therefore has no standing to assert a breach of his s.8 Charter rights.
[78] There is no need for further analysis once the issue of standing has been decided against the Applicant.
[79] This court orders that the application is dismissed. The date on which this matter was to be next spoken to, March 6, 2024, is ordered vacated and the trial will proceed as scheduled.
The Honourable Madam Justice S.E. Healey Released: March 4, 2024