Court File and Parties
Court File No.: 9247/25 Date: 2026-03-16
Ontario Superior Court of Justice
Between:
His Majesty the King — Respondent
– and –
Daniel Favaro — Applicant
Counsel:
T. Wilson, H. Mitchell for the Crown
E. McCooeye, for the Applicant
Heard: March 16, 2026
Rasaiah J.
Reasons on Application
Overview
[1] Daniel Favaro is charged with possession a weapon (a handgun) for a dangerous purpose, unauthorized possession of a firearm, possession of a firearm-unauthorized, possession of firearm with ammunition, careless use/storage of a firearm and discharge of a firearm-reckless, which are counts 6 to 11 on the Indictment. The alleged date of the offences is October 7, 2023. There is a co-accused, namely Thomas Patrick Nash, whose charges are counts 1 to 5 on the Indictment.
[2] Mr. Favaro seeks an order allowing him to bring an application, and for a finding that he has standing to bring a s. 8 Charter application with respect to a search that was conducted of 359 Douglas Street, Sault Ste. Marie, which search forms part of the police investigative actions related to the subject matter of the charges he is facing. The property was the subject of a search conducted on October 11, 2023.
[3] Mr. Favaro wishes to argue that the warrant and the search were unreasonable and that evidence obtained during the search should be excluded from trial, pursuant to the provisions of sections 8 and 24 of the Charter of Rights.
[4] The issue on this application is standing.
Summary of Facts
[5] During a police investigation related to reported gunfire, Sault Ste Marie Police Services prepared an Information to Obtain a Warrant for the search of 359 Douglas Street. The search warrant was granted, and the premises searched. During that search police found and seized items. The Crown proposes to tender items seized during the search as evidence at the trial.
[6] Daniel Favaro is a member of the Outlaws Motorcycle Club, Sault Ste Marie Chapter. The Outlaws Motorcycle Club maintains and conducts their club activities at 359 Douglas Street. The premises located at 359 Douglas Street is known as the "clubhouse" for the Outlaws Motorcycle Club. It is a residential property not owned by Mr. Favaro. Mr. Favaro asserts while not an owner, he has a meaningful connection to the property creating a reasonable expectation of privacy that would provide him with standing to challenge the search warrant.
Analysis
[7] Mr. Favaro bears the onus of proving, on a balance of probabilities that he personally had a reasonable expectation of privacy in the place searched, in this case, 359 Douglas Street. The threshold is not high; it is generally considered low and the issue to be liberally construed. Proving the alleged infringement of the right in question is not required.
[8] The Crown's position is that Mr. Favaro cannot establish such an expectation, submitting that he does not own the property; he is not a lessee/tenant of the property; he did not reside there, having a primary residence elsewhere; and that his asserted connections to the property relate solely to his status as a club member and/or intermittent use for social purposes. The Crown's position is that Mr. Favaro's uses of the property fall sort of the criteria to be granted standing; and the application must be dismissed.
[9] It is well established that s. 8 of the Charter protects people not places: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128 at para. 45. Mr. Favaro to assert a s. 8 Charter breach, to have standing to do so, must demonstrate a subjective expectation of privacy which must be objectively reasonable considering the totality of the circumstances. Factors of consideration include: (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and the objective reasonableness of the expectation.
[10] As to use of/connection to the property, Mr. Favaro filed an affidavit. In his affidavit, which is sworn, February 04, 2026, he states he is a member of the Outlaw Motorcycle Club and has been since January 23, 2020. He states there are fewer than 10 members of the Sault Ste. Marie Chapter. He states all members have input into what renovations take place or how the property is used; he assisted in renovations of the clubhouse, inside and out, for which he was not compensated; he performs maintenance for the property, inside and out, again for no compensation, including but not limited to cutting grass, snow removal and cleaning; he typically eats dinner there three to five times a week; he regularly buys groceries and cooks at the property for himself and other members, both in the kitchen and outside on the barbeque; he celebrates holidays and special events at this property; he considers this property to be his home away from home; he has personal belongings on the property such as clothes, motorcycle, hygiene products, snow removal shovels, bedding and cooking supplies; he has keys to the property and the ability to regulate who comes in and out of the property; the property is not open to the public, only members and others by invitation; the doors are locked; certain areas of the property are restricted to members only and he pays $175 monthly fees for his privileges and access to the property, which fees also include his membership fees for the club.
[11] I appreciate the Crown's submissions that the property is not Mr. Favaro's primary residence. However, I find, that the fact that the clubhouse in this case may not be the primary residence of Mr. Favaro or a private residence of anyone does not eliminate expectation of privacy considerations, it just may in the long run diminish the expectation of privacy in the location. Expectation of privacy, even if diminished, counts.
[12] As a side note, not a finding for this case for clarity, in terms of subjective expectation, in forfeiture cases dealing with motor cycle club clubhouses, I note that some of them have been found to be "safe spaces" or "safe houses" often intended to keep activities away from public and police view, especially if they are fortified, with metal doors, fences or security, or contain "member-only" meeting rooms. Such uses, namely private restricted uses/prive restricted areas for club activities, restricted to members, draws considerations related to expectation of privacy. Consideration of use/control of the space, and parts thereof are relevant. The Crown provided information that there were high-definition security cameras installed on the property. There are private areas in this clubhouse on Mr. Favaro's evidence, areas that are members only areas.
[13] In R. v. Hunt, 2013 ONCJ 511, the case involved activities at a motorcycle clubhouse. The Crown in that case had taken the position that there was a diminished expectation of privacy, agreed to by defence. The court went on to make the finding based on evidence of a constable; information contained in the information to obtain and on counsel's submissions/positions. When dealing with s. 8 of the Charter, of note, there is consideration that the home was well fortified, no windows and steel doors. The house was found to be used as a clubhouse and sometimes a "flophouse" by members. The accused in that case was a member of the motorcycle organization. Again, I recognize there was a concession made by counsel that the accused in that case had an expectation of privacy, albeit a diminished expectation of privacy, but it supports that diminished expectation is not the test, and I agree. In the Hunt case, the "private clubhouse" presented as drawing some expectation of privacy, residence or not. I recognize that this case is not binding on me either. However, some of the considerations regarding the use of the clubhouse itself, again are relevant considerations properly considered.
[14] In the case of R. v. Hayes, 2021 NLPC 1020A00188, I find that there are some notable distinguishable facts with the case at bar. Mr. Hayes was targeted as one of six. While Mr. Hayes was found in the clubhouse on execution of the warrant in that case, he was not found to be a member of the motorcycle club nor was he found to have had any form of possession, control or ownership over the building. However, again, while being another case that is not binding on this court, it properly considers relevant considerations, and for me, highlights some differences that exist in the within case that I ought to consider.
[15] R v. Roess, 2023 ONCJ 2154 is not binding on this court either. That being said, some of the facts of that case are in fact very similar if not the same as those in the within case, including the property in question. I find that it outlines valid considerations per Edwards properly considered. The Crown respectfully submits the case was not decided correctly; that the property was being viewed as a residence, which they submit it is not. I do not find this is fair to state because Kwolek J. considered several factors that were in my respectful view not isolated to the building itself being a private residence or having to be categorized by him as such. Kwolek J. was alive to the building being used as a clubhouse, the use shared amongst members. It is also clear that he was looking at authorities that addressed "house guests;" reasonable expectation of privacy at a residence. His ultimate determination was that Mr. Roess was more than an exceptional house guest. His finding was that he had a direct interest in the property.
[16] The nature of the use of a building is important; attracting reasonable expectation of privacy is not limited to the nature of the building being a private residence or dwelling of the person claiming the expectation. The issue of the ultimate finding on what the property was to, or in relation to, the person making the claim, does not rise and fall on it being a private residence but based on the level of the expectation of privacy by use and connection; the property not being found as a residence of the person does not extinguish it, In other words, if the ultimate determination is that the property did not have status of being a residence, it may still attract expectation of privacy by established use and connection that may draw it.
[17] I do not agree with the Crown that one could liken the clubhouse in question to a gym with multiple key holders. Further, the Crown presented no evidence of an existing gym that compares, one with ten members, in a residential property, where members would have the right to stay overnight at it, control who has access to it, do renovations to it, and be involved in decisions regarding the operation/renovation of the property nor did they highlight/acknowledge that some gyms offer lockers to keep personal items in under lock for an additional fee. Respectfully, their example is just not analogous. And even if the Crown provided such evidence, I am not so sure, same would attract a finding of zero expectation of privacy, if such a private gym existed having the benefits and permitting the activities that compare to Mr. Favaro's. The facts matter.
[18] As for social use, this is not a case where the activities of Mr. Favaro are solely limited to social use. Social use is included but combined with other activities that are beyond mere social use; doing renovations, working at it (cooking for others), providing labour and financial injection, is more than social use, in my view.
[19] Recognized by the Crown, it is not determinative, namely the fact that Mr. Favaro is not listed as an owner of the property; that the property is owned by the Club. It is not determinative, the fact that Mr. Favaro is not a formal tenant with a lease either. However, control can come in many forms outside of title and possession by legal title/contract(s) concerning it. Permissions/rights can be granted/acquired outside of such in law to form connection to a property. Those permissions exist on Mr. Favaro's uncontradicted evidence (set out above).
[20] Recognized by the Crown, it is not determinative either, the fact that Mr. Favaro was not present at the time of the search. The fact that he was not there, on the facts of this case, in my view does not detract from the privacy analysis. It is just one of the factors to be considered. I do not find that based on the record before me, that this is of any meaningful impact on the totality of the circumstances of connection Mr. Favaro has presented.
[21] It is the totality of the circumstances that are to be considered.
[22] The Crown acknowledges that they have not chosen in this application to cross-examine Mr. Favaro. As such, his affidavit evidence is not challenged on the record before me.
[23] Considering the facts on the record before me, for the sole purposes of determining standing, clarifying, that I have not yet determined Mr. Favaro's level of privacy interest at this stage or that the home is a private dwelling for him (because it is not necessary at this stage in my view), I am satisfied that at the very least, the property in question is a motorcycle club's clubhouse, a private clubhouse located at a private residential building. This clubhouse presents as a shared private space where a small, limited number of members, namely ten members and their invited guests attend for their private personal and/or club activities. Again, s. 8 protects people not places. And as a private clubhouse, on the specific factual basis of its use by Mr. Favaro in this case (and the other members), may draw reasonable expectation of privacy whether it is a residence or not for him.
[24] As to Mr. Favaro's statement that he considers the property as a "home away from home", and the argument that it is a sentiment or subjective attachment, not a property interest, it is nonetheless relevant to the use of the clubhouse, namely this type of use is a personal activity, not open to the public, not open for use by just anyone; members can use it as a private place to stay from time to time, with occasional overnight stays as a home away from home. The members who do this are using the property for their private use; it is not a hotel or air b and b open to anyone.
[25] Regular, ongoing, continuous presence with freedom to regulate access, store items, and stay overnight at the property, can be construed as more than mere "social invitee/guest", notwithstanding lack of having an "assigned room" for sole personal use.
[26] The dining and celebrating of holidays there, again while they can be categorized as social activity; these again can also be construed as private uses of the space by the members and their invitees only for their private activities.
[27] I recognize that members may as part of their membership fulfill duties such as doing yard work or other tasks around a clubhouse. Getting keys to a clubhouse may go along with that. However, in this case, Mr. Favaro's actions reflect more that simple yard work and completion of tasks. Additionally, an individual does not lose control simply because another can access the clubhouse or shares in duties related to the clubhouse. Keys only being handed out to members and permission to regulate only being granted to members can be construed as reflective of emphasis of private use of the space. Again, level of expectation of privacy is not the issue on this application.
[28] Conducting renovations that involves free labour, and financial injection can be construed as more than mere "social invitee/guest" arising from payment of membership fees. Labour and additional financial injection may be assessed to have value connected to property those efforts apply to, albeit maybe not proprietary interest; however in this case, the amount is unknown on the record before me.
[29] The same can be said of decisions regarding the property which, in my view, again is reflective of a greater than "social invitee"-participation/presence, that arises from membership. Again, permitted bestowed decision-making does not have to be connected to legal title and/or contracted proprietary interest in property; the decision-making evidence in this case is "connected" to the property's state and operation. Again, the decisions are not just open to anyone, they are relegated to the private members on what should happen; they are given a decision-making "participation option" which can be construed as having direct influence and/or involvement in decisions concerning the property state and operation; that granted involvement cannot be construed as reflective of zero control.
[30] Security camera footage could very well contain an informational component related to activities that have gone on at the property, of what was intended or organized to be of a private nature; that this was expected by those in Mr. Favaro's stead.
[31] On the totality of the circumstances, as to whether a reasonable and informed person in the position of Mr. Favaro would have a reasonable expectation of privacy, after considering the subject matter of the search, namely the clubhouse, whether he had a direct interest in it, whether he had a subjective expectation of privacy in it, and whether this subjective expectation is objectively reasonable, I find, based on the above, that the answer is "yes".
[32] The subject matter at the very least for purposes of the issue of standing, is a private clubhouse and private space for members and their invitees. Mr. Favaro is a member. Mr. Favaro, along with the other 9 members, a small group, have the ability to regulate access to the clubhouse; Mr. Favaro uses the space for private activities not intended for public attendance; he, along with other members, have an ability to exclude others; he has financially contributed whether by money or labour to the clubhouse's preservation and maintenance over and above fees paid for membership in the club. He attends there regularly and continuously, even staying overnight. He buys the groceries and cooks for members. The member group is restricted. All this combined can be (liberally) construed as having meaningful connection/control. The record supports that he is not a mere and exceptional house/social guest/invitee, simply socializing and performing duties connected to his membership as submitted by the Crown. He is part of a small group of ten members who use the property to engage in activities for their private club uses who draw on benefits and uses that only members have.
[33] Objectively I find it is reasonable, on the specific facts of this case consider his use, contributions, control, and the nature of the club membership/clubhouse use, for him to have a subjective expectation of privacy regarding his activities connected to the property. From the perspective of a reasonable and informed person, I am of the view they would see this at the very least, as a situation of the property being a space being used by members of a private club for their private club activities and their personal benefits bestowed, restricted by the club rules, engaging in their lifestyle and beliefs there, and as such, those activities would draw a reasonable expectation of privacy; that the state should not be allowed access without proper warrant or other legal means to enter and search. He kept personal items there. He stayed there. He used it as a home away from home. There was a member only area. Access was restricted. What he is doing there may offer insight into his personal private life, details about his lifestyle and personal choices; entering without lawful means exposes private activities that are going on there.
[34] The level of Mr. Favaro's expectation of privacy and what the home was to him, is for another day.
[35] Standing only determines if an accused should have an opportunity to argue that their Charter Rights may have been violated. There is enough on the record using the applicable threshold to grant standing based on the totality of the circumstances.
Conclusion
[36] The application is granted.
[37] I find the applicant has standing and may proceed to bring a s. 8 Charter application, seeking relief under s. 24.
Rasaiah J.
Released: March 16, 2026