minicounsel

Court File No.: CR-24-0026-00
Date: 2025-06-10

Between

His Majesty the King
Respondent
(Counsel: T. Bud)

-and-

Malachi Venus-Seaforth
Applicant
(Counsel: M. Engel)

Heard: April 7, 2025, at Thunder Bay, Ontario
Justice: T. J. Nieckarz

Reasons on Standing Application

Overview

1Malachi Venus-Seaforth (the “Accused”) is charged with the following:

a. Fourteen firearms related charges, contrary to ss. 86(1), 91(1), 91(2), 95(a), and 102 of the Criminal Code, RSC 1985, c C-46 (the “Criminal Code”);

b. Possession of cocaine and fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (the “CDSA”);

c. Possession of the proceeds of crime of an amount exceeding $5,000, contrary to s. 354(1)(a) of the Criminal Code; and

d. Resisting arrest, contrary to s. 129(a) of the Criminal Code.

2The charges arise out of the execution of a search warrant at 325-230 Amelia Street West, Thunder Bay (“Amelia”). During the execution of that warrant, the Accused was found in the bathroom of the residence with fentanyl and crack cocaine on his person, along with a large sum of cash. Drugs, guns, cash, and indicia of the drug trade were also found on other individuals in the residence, and in various locations throughout the residence.

3The Accused intends to bring an application pursuant to s. 8 of the Canadian Charter of Rights and Freedoms for the exclusion of items found following the execution of the search warrant. The Crown challenges his standing to do so. The Crown position is that, at best, the Accused, and the others found in the property, were transient or temporary uninvited guests. Even if the Accused can be said to have had a subjective expectation of privacy, he had no reasonable objective expectation of privacy over the residence. The Defence disagrees and argues that the Crown theory of the case supports a connection to Amelia for which there was a reasonable expectation of privacy.

4For the reasons that follow, I find that the Accused has not satisfied his burden of establishing standing to bring the s. 8 Charter application.

Facts

5There was no formal application, affidavits, nor evidence before me other than a statutory declaration from the tenant of Amelia – Ms. Cripps – and two letters uploaded by the Crown to Case Center from The District of Thunder Bay Social Services Administration Board (the “DSSAB letters”). These letters were not attached to affidavits and no witnesses were called with respect to their contents. Both the Crown and Defence are content to proceed on this basis.

6The Accused asserts, and I accept, that he is entitled to rely on the allegations of the Crown to advance his application without providing his own evidence. [1] For the s. 8 inquiry, the Accused is entitled to ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him.

7On July 7, 2022, members of the Thunder Bay Police Service began an investigation into suspected drug trafficking from Amelia. The information received by police was that the current tenant – Ms. Cripps – and several males from Southern Ontario were selling crack cocaine and fentanyl from the residence.

8The investigation was placed on hold when it was believed that the males had possibly moved to another apartment within the same building.

9On November 22, 2022, police again began receiving information that Ms. Cripps and three males from Southern Ontario were selling crack cocaine and fentanyl from Amelia.

10On November 23, 2022, police viewed security footage from a camera within the building that showed the entrance to the door to apartment 325. That footage showed that between 10:28 p.m. on November 22, 2022, and 8:14 p.m. on November 23, 2022, more than 150 people were seen coming and going from the apartment. Police concluded that this activity was consistent with drug trafficking.

11On November 24, 2022, police obtained a CDSA search warrant. The warrant was executed on November 24, 2022. Upon entry, eight people were arrested, including the Accused. The Accused was located in the bathroom. Three males were located in the bedroom, while another was located after exiting the window to the bedroom. The tenant, Ms. Cripps, was not in the apartment at the time of the arrests. Three people were found in the living room area.

12During the search of Amelia, the following items were located and seized:

280.65 grams of fentanyl was located on the males and in the bedroom (20.36 grams found on the Accused);
198.56 grams of crack cocaine was located on the males and in the only bedroom where the males were located (5.6 grams found on the Accused);
More than $5,000 in Canadian currency was located on the males (including the Accused) and in the bedroom;
Two loaded handguns were found in plain view, on the bed, in the bedroom;
One additional loaded handgun was found on a co-accused;
A silver magazine in the bedroom;
A baggie of bullets found on a young person;
Multiple cellular phones; and
A digital scale with white powder residue on it.

13Ms. Cripps deponed that she has been living in Amelia for over three and a half years. She said that the keys to her apartment went missing for more than a week prior to November 24, 2022, and she was unable to lock her doors. She said that a few days before November 24, 2022, she returned to find two strangers in her apartment. She said that this has happened before. She said that they were present without her permission and refused to leave when asked. She further declared that the persons who took over her apartment refused her entry into the bedroom where most of the drugs and guns were found, and there was always someone present preventing her entry. Ms. Cripps was arrested after the execution of the search warrant and takes the position that she was the victim of a home takeover by unwanted drug dealers. The Defence argues that I should place very little reliance on Ms. Cripps’ statement because it is hearsay, and she was not produced for cross-examination by the Crown.

14The DSSAB letters are not particular to this case. They have no evidentiary value and are nothing more than context. They are letters that talk about the general increase in drug and gang activity at the Amelia St. building (also known as Spence Court), and the negative impact it has on tenants. The letters (one of which is addressed to police) speak to tenants being pushed aside so non-tenants can gain access to the building when they are entering, tenants being robbed and assaulted, rampant drug use in the common areas and apartments, home takeovers by gang members, tenants with drug addictions having gang members dealing drugs from their units, gun violence within the building, a homicide in the building, and deaths by overdose.

The Law

15The Accused intends to argue that his s. 8 Charter rights have been violated by an unlawful search and seizure. I do not yet know what attack he makes against the search and seizure of Amelia. From the lack of any argument about the search of his person, I infer that the primary challenge is to the search of the apartment, from which the Accused’s arrest flowed as a search incident to arrest.

16Section 8 of the Charter exists to extend constitutional protection against unreasonable state intrusions to individuals who have a reasonable expectation of privacy over the subject matter of a search. [2]

17In determining any s. 8 issue, the court must start by considering whether s. 8 is even engaged. The right to challenge the legality of a search depends on whether the Accused had a reasonable expectation of privacy in relation to the subject matter of the search. It is the Accused’s onus to establish a reasonable expectation of privacy, failing which, there is no s. 8 protection. Establishing a reasonable expectation of privacy is what grants standing to an accused to pursue a s. 8 claim. [3]

18Determining whether an accused has a reasonable expectation of privacy necessitates both a factual and a normative inquiry. The factual inquiry is focused on all the circumstances of the case. The normative inquiry is focused on that “which we ought to expect protection from a privacy perspective in a free and democratic society”. [4]

19In assessing whether an accused has a reasonable expectation of privacy, the Supreme Court of Canada, in the leading case of R. v. Edwards, has said that the question must be determined based on the totality of the circumstances. A non-exhaustive list of factors to consider when assessing the totality of circumstances includes the following:

presence at the time of the search;
possession or control of the property or place searched;
ownership of the property or place;
historical use of the property or item;
the ability to regulate access, including the right to admit or exclude others from the place;
the existence of a subjective expectation of privacy; and
the objective reasonableness of the expectation. [5]

20The “totality of the circumstances” analysis is a matter of substance, not form, and is guided by the following questions:

What is the subject matter of the search?
Does the accused have a direct interest in that subject matter?
Does the accused have a subjective expectation of privacy in the subject matter?
Would an expectation of privacy be objectively reasonable in the circumstances of the case?

Only where the expectation of privacy is objectively reasonable in the circumstances does the claimant have standing to assert a s. 8 right. [6]

21The subjective expectation requirement is not a “high hurdle” and is not a difficult test to meet. In the absence of evidence from the claimant, it may be presumed or inferred from the circumstances. [7]

22An expectation of privacy will be objectively reasonable and “attract Charter protection if reasonable and informed people in the position of the accused would expect privacy”. [8]

Analysis: Does the Accused Have Standing?

23The subject of the search is Amelia. There is no dispute that the Accused was found at the property. He had no direct interest in the apartment. He was not the owner, nor the lawful tenant. There is no evidence as to any relationship between the Accused and Ms. Cripps. If I disregard or disbelieve the statutory declaration of Ms. Cripps then, at best, he was there as an invited guest who had been in the apartment for either a couple of days or a couple of months. At worst, as a participant in a home takeover, he was an intruder.

24For this application, in accordance with Jones, I am to assume as true that Mr. Venus-Seaforth was in possession and control of the drugs and guns found on the bed or in the bedroom of the Amelia apartment. The question becomes whether, in these circumstances, the Accused had a subjective expectation of privacy in Amelia and/or an objectively reasonable expectation of privacy?

25In Atta, Burton J., notes that the case law establishes two types of occupants – those who are legitimate (Edwards, R. v. Sangster, R. v. Le) and those who are not (R. v. Lauda, R. v. Van Duong, R. v. T.I.). [14]

26Based on a review of the case law, Burton J., in Atta, concluded that individuals arrested at a property that was the subject of a drug-related home takeover have no subjective or objectively reasonable expectation of privacy. Burton J. stated the following at paragraph 26:

[26] …It would be contrary to the law to permit an accused to manufacture an expectation of privacy by gaining non-consensual occupation of another person’s home through coercion, extortion, exploitation, fraud or other victimization of the homeowner.

She continued, at paragraph 35, stating the following:

[35] Those who strong-arm their way into another person’s home by extortion, exploitation, trafficking, intimidation, actual violence, fraud or other illegal, illegitimate means cannot have a reasonable expectation of privacy, because they are not there with consent.

27In Le, Brown and Martin JJ., in obiter, recognized that it is possible for an individual to have a diminished, or qualified, reasonable expectation of privacy while still retaining the benefit of s. 8 protection. Invited guests may fall within this category and, in certain circumstances, have a reasonable expectation of privacy in their host’s property. [15]

Defence Position

28With respect to the Edwards factors, the Defence argues that this case falls within the category of occupants that do have a reasonable expectation of privacy:

a. The Accused was present in the apartment at the time of the search.

b. With respect to possession and control, the Crown theory of the case requires an element of control by the Accused over the apartment (or at the very least, the bedroom in which much of the drugs and guns were located). This flows from the fact that occupancy alone cannot create a presumption of possession of the items seized from the apartment. [16] For the Crown to argue that the Accused had possession and control of the items seized from anywhere other than his person, the Crown must show control beyond the fact that the Accused was present at the time of the search.

c. Historical use of the property by the Accused may be inferred from the information received by police. The police received information starting in July 2022 and then again on November 22, 2022, that unknown males were selling drugs from the apartment. The Defence invites me to infer from this that the Accused may have been housed in the apartment for anywhere from 2 days (November 22–24) to 4–5 months (June–November) for the purpose of dealing drugs. The Defence encourages me to accept the latter, which would make the Accused more than a transient or temporary guest. The Defence argues it is reasonable to infer he was housed at the apartment for not an insignificant period and therefore has established a historical use of the property as a residence. At the very least, he was housed there from November 22–24.

d. With respect to the ability to regulate access, including the right to admit or exclude others from the apartment, the Crown theory is dependent upon the Accused being a resident of the home with substantial control over it. He was an occupant of the residence at the time of the search and capable of asserting an ability to regulate access. If I find that he had been housed there for approximately 4½ months, then the Defence suggests a reasonable inference would be that he also developed the right to regulate access.

e. In light of the foregoing and given that the Accused was an occupant of the apartment, he had a subjective expectation of privacy that when considered in the totality of the circumstances, must be said to be objectively reasonable. If there is a doubt as to whether the Accused was a invited guest of Ms. Cripps or not, I should resolve this doubt in favour of the Accused.

Crown Position

29The Crown argues as follows:

a. The Accused is ordinarily a resident of the Greater Toronto Area. Even if I reject Ms. Cripps’ declaration that her apartment was the subject of a home takeover by unwanted drug dealers, there is no evidence that the Accused was a welcome guest of Ms. Cripps. There is no evidence of any relationship between the Accused and the lawful tenant.

b. With respect to possession and control, and historical use, to say that the Accused was housed in the apartment since July 2022 is a “stretch”. At best, given that he was found in the apartment on November 24, 2022, the Accused can only be said to have been housed there for a couple of days. There is no evidence that he exercised any independent control over the premises or had any right or authority to regulate access. The Crown position in the prosecution that the Accused had possession and control of the items seized [17], does not elevate his occupancy of Amelia to the point that he had a reasonable expectation of privacy.

c. There were no personal belongings of his found anywhere in the premises that would suggest he was an occupant at all. I can infer from this that he had not been staying at the apartment from July 2022 to November 2022. At best, he was a transient occupant who had been there for no more than a couple of days or nights, and who was not entitled to be left undisturbed.

d. There is no evidence that he had any right to admit or exclude others. The statutory declaration of Ms. Cripps is that her keys had been missing and she was unable to lock the door. Mr. Venus-Seaforth was nothing more than an unwanted visitor or trespasser.

e. As a trespasser, the Accused had no subjective expectation of privacy, and no objectively reasonable expectation. The Crown relies on R. v. Lauda, at para. 1.

Findings

30With respect to the statutory declaration of Ms. Cripps, this is an out of court statement and the Crown did not produce the declarant for cross-examination. Having said this, the Defence did not notify the Crown that it wanted to cross-examine the witness. Neither the Crown nor the Defence sought an adjournment to have the witness produced. The Defence asked me simply to give the evidence little weight. Despite the circumstances, I am inclined to agree with the Defence request, particularly given that the statement raises some questions and credibility issues that could have benefitted from cross-examination. For example, the statement does not say what steps were taken once the keys to Amelia were lost, nor does it address the allegation that this home had previously been suspected of being associated with selling drugs. I note that the original information received by police on July 7, 2022, was that Ms. Cripps was participating in the selling of drugs with the males. Whether Ms. Cripps was an innocent victim or complicit in facilitating the selling of drugs, remains to be seen. The statement, and circumstances in which the statement was given, give rise to some credibility concerns. While I have not completely disregarded the statement, I am mindful that Ms. Cripps’ evidence is to be approached with considerable caution.

31Upon consideration of the disputed Edwards factors and based on the totality of the circumstances of this case, I find that the Accused, at best, was a transient occupant of Amelia, either with or without the permission of Ms. Cripps. Whether he was on the premises with the permission of Ms. Cripps or not, I conclude that he had minimal connection to the apartment and a person in his circumstances could not be said to have a reasonable expectation of privacy. Specifically, I find as follows:

Possession or control of the place searched and historical use

a. The Crown theory of the case is that the Accused had personal possession of the items found on him and joint or constructive possession of the drugs and guns found elsewhere in the apartment. I agree with the Defence that the joint/constructive possession theory of the prosecution must involve elements of possession and control of the premises beyond the fact that the Accused was present at the time of the search.

b. In R. v. Faudar, the Ontario Court of Appeal outlined the following with respect to constructive possession:

i. Constructive possession applies when an accused did not have physical custody of the object but did have it “in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person.”

ii. The Crown must provide that the accused knew the character of the object, he knowingly put or kept the object in a particular place, and he intended to have the object in the particular place for his use or benefit or that of another.

iii. There must be knowledge that discloses some measure of control over the item possessed.

iv. Occupancy of premises alone does not create a presumption of possession, but it does support an inference of control when coupled with evidence of knowledge. The evidence must tie the accused to the location such that the only reasonable inference is that the accused was aware of the contraband and has control over access to it. [18]

c. To constitute joint possession pursuant to s. 4(3) of the Criminal Code, there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. [19]

d. I do not agree with the Defence that the Crown theory necessarily elevates the Accused to the status of a resident or guest who has a reasonable expectation of privacy. While the Accused must have exercised some level of control over the premises based on the Crown theory, exactly what his relationship was to the premises is unclear to me. The Crown’s theory of the case only provides an avenue for evidence on this application that does not require the Accused to testify. I still must assess these facts in the totality of the circumstances to determine whether there was a reasonable expectation of privacy in Amelia. [20]

e. While I do not have the ITO, I glean from the factums that the Crown alleged that Ms. Cripps – voluntarily or involuntarily – and several Southern Ontario drug dealers were all jointly participating in the sale of drugs from Amelia. There was a history of drug selling from Amelia.

f. The Crown theory of the case at the standing hearing is that Mr. Venus-Seaforth was one of several out-of-town traffickers that exerted control over the premises in a home takeover. If this were the case, the significance of the Accused having any possession and control over Amelia would be undermined by the illegal manner with which it was obtained. [21] Even if I give the Defence the benefit of the doubt, and if Ms. Cripps invited the Accused into Amelia – there is no evidence to this effect – this does not necessitate a finding that the Accused is akin to an “owner” of Amelia, as the Defence encourages me to find. In R. v. Labelle, at para. 31, the Ontario Court of Appeal stated that while possession or control of a place searched are significant factors in the Edwards analysis, they are not by themselves determinative of whether an accused has a reasonable expectation of privacy in a particular place. [22]

g. If the evidence of Ms. Cripps is to be believed, the Accused and the others charged did exercise some control over the apartment, even excluding her from her bedroom. She does not say which of the males controlled the door. I believe this portion of Ms. Cripps’ evidence. Regardless of whether she voluntarily participated in the drug operation from her apartment or not, it makes sense that her and others coming to the apartment would be excluded from the area containing the drugs and guns.

h. With respect to historical use, there is no evidence on which I can conclude that the Accused was a resident of the apartment from July 7, 2022, to November 24, 2022. The information received by police in July 2022 did not provide sufficient information to identify the Accused as one of the “several males from Southern Ontario”. While the Accused is from Southern Ontario, so are most drug offenders that come before this court. I have no evidence as to any descriptors of the males. I have no evidence as to when the Accused came to Thunder Bay from Southern Ontario. There were no belongings found at the apartment that are linked to the Accused. There is nothing that suggests that the Accused was either living at Amelia on the date of the execution of the warrant or historically. I also note that there was one bedroom and multiple people found in the apartment. I cannot say which, if any of them, were residing there on November 24, 2022. At best, Mr. Venus-Seaforth was staying there for the few days prior to November 24, 2022, but even this is unlikely given the lack of any of his belongings there. While the apartment was Ms. Cripps’ residence, it appears to have been a place from which business was conducted for the other individuals located there.

Ability to regulate access

i. A key element of privacy is the right to be free from intrusion or interference. The ability to exclude others from the premises is, therefore, an important aspect of privacy. [23]

j. There is no direct evidence before me regarding this factor. The evidence is that there were a number of males inside the apartment, and that during the period from 11:28 p.m. on November 22, 2022, to 8:14 p.m. November 23, 2022 – less than 24 hours – people came and went from the apartment approximately 153 times. I do not know who controlled access to the apartment. If Ms. Cripps is to be believed, she lost her keys and came home one day to find two males in her apartment. She does not say who they were.

k. If this was a home takeover, it is likely that some or all the males who were arrested, including Mr. Venus-Seaforth, controlled access to the apartment. If they were there with Ms. Cripps’ permission, I cannot say who controlled access. It may still be reasonable to infer that, given the nature of the operation, the males (or some of them) may have controlled access to, and excluded others from the entire apartment, along with (or the exclusion of) Ms. Cripps. There is no evidence that they had the legal right to do so. Even if it was not a home takeover situation, there is no evidence that Ms. Cripps or anyone else with authority to do so gave them the legal right to control access. Mr. Venus-Seaforth was found in the bathroom and not the bedroom, although I find that the Crown theory of the case would require him to have had access to the bedroom. On the facts before me, the Accused had no legal authority to regulate access to the apartment. At best, he was one of several people who controlled access at least to the bedroom, and possibly to the entire apartment.

Existence of a subjective and objectively reasonable expectation of privacy

l. There is no direct evidence of Mr. Venus-Seaforth’s subjective belief regarding an expectation of privacy. His counsel asserts that, given the low threshold, it is reasonable to presume the existence of a subjective expectation of privacy in the circumstances.

m. On the facts as I have found them, I struggle to find that the Accused would have had a subjective expectation of privacy. This strikes me as a situation in which there is a risk of confusing expectation with desire. In Van Duong, the Court of Appeal for Ontario stated, at para. 7, in part as follows:

[7] …a person has an expectation of privacy where he desires privacy and believes it is unlikely, as a matter of fact, that he will be disturbed. In the second sense, a person has an expectation of privacy where she believes she will be undisturbed because she is entitled to be left undisturbed. In s. 8 jurisprudence, subjective expectation is used in the latter sense.

n. The evidence suggests that Amelia was a trap house associated with drug trafficking. The allegations, including the results of the search, establish a factual matrix that reveals, at best, a transient occupation of the premises with multiple other people and many people coming and going. It is likely that Amelia was used as a location from which drugs were being sold, but Mr. Venus-Seaforth was not staying there. As indicated above, he had no belongings there and there was only one bedroom, with multiple individuals and no evidence of items such as blow-up beds or cots in which all of them, or more than a couple, could sleep. Mr. Venus-Seaforth was a visitor to the property, whether that day or for a couple of days, but I have no evidence to suggest anything longer. A similar conclusion was reached by Fitzpatrick J., in R. v. Osman. [24] If this was a home takeover situation, based on the law outlined elsewhere in this decision, there would be no subjective or objectively reasonable expectation of privacy. But, giving Mr. Venus-Seaforth the benefit of the doubt, even if he was a transient invited guest, it is a stretch to say that Mr. Venus-Seaforth had a subjective belief, as a guest in these circumstances, that he would be undisturbed because he was entitled to be left undisturbed.

o. Even if the Accused could be said to have had a subjective expectation of privacy, the facts as a whole lead me to conclude that, given his tenuous connection to the property, there was no objectively reasonable expectation of privacy.