Criminal Law

SCC to examine Charter protection in firearms, drug case

By Peter Small, Contributor

A dissenting Ontario Court of Appeal judge may have broken new ground in defining the privacy rights of citizens outside their homes, says Calgary criminal lawyer Greg Dunn.

“It gives you a glimpse into what may be an evolving trend,” says Dunn, principal of Dunn & Associates.

Two of three appeal court judges upheld a Toronto man’s conviction on several firearms and drug-related offences after he was detained by police while in his friend’s backyard.

But the third judge, in a strong dissent, held that the man’s privacy rights had been violated by the police officers’ uninvited entry into the yard and that his conviction should be overturned.

“As an invited guest, the appellant had a reasonable expectation of privacy in his friend’s home,” Justice Peter Lauwers wrote in his dissent.

Dunn tells this is an interesting case because it illustrates the more traditional approach taken by the majority in adjudicating search and seizure issues under s. 8 of the Charter, as well as what could be an emerging expansion of privacy rights articulated by the dissent.

The Supreme Court of Canada will hear an appeal of the case, although no date has been announced.

“It's a great set of facts and an important issue for the Supreme Court,” says Dunn, who was not involved in the case and comments generally.

The man’s factual guilt was never at issue, wrote Justice David Doherty, for the majority. He was arrested with a loaded semi-automatic pistol, cocaine and “considerable cash” after he bolted from his friend’s backyard, the judge said.

The defendant asserted that the entry of three police officers into the backyard was illegal and interfered with his reasonable expectation of privacy, so the evidence should be excluded under s. 24(2) of the Charter, Doherty wrote.

The majority ruled, however, that as a guest he had no reasonable expectation of privacy because he had no control over who could enter or remain on the property.

Lauwers disagreed. The logic implicit in this assertion, he wrote, “must be rejected as utterly inconsistent with ordinary life in our free and democratic society.” It implies, he added, “that the appellant left his personal Charter protections at home.”

Dunn says the case is a good example of the evolution of Canada’s Charter protections against unreasonable search and seizure.

The courts have held that these protections attach to people, not places, he says. Your rights are not necessarily dependent on you being in a house, car or other locale, but on your relationship to those places, he says.

For instance, a passenger carrying illicit drugs in a car that is unlawfully stopped by police can’t assert privacy rights because he doesn’t have a proprietary interest in the vehicle, Dunn says. Under English common law, citizens have an unassailable right to privacy at home, he adds.

But under the “implied licence doctrine” the state and its agents have certain rights to trespass, which are generally confined to the walkway leading up to the front door so they can knock and try to engage with the resident, he says.

The trial judge in this case said the right of entry extended to the backyard because it had no gate in its fence.

However, both the appeal court majority and minority did not necessarily agree, Dunn says.

And in his dissent, Lauwers strongly disagreed that police have carte blanche to enter someone’s backyard.

Lauwers held that the initial contact with the occupant could have easily been made by the officers trying to speak to him over the fence instead of coming into the backyard and breaching that territorial boundary, Dunn says.

The case is good from a defence perspective in that all three judges held that the implied licence doctrine does not extend to all parts of a homeowner’s property, he says.

But for a defendant to take advantage of an unlawful police placement, he has to establish a Charter breach, Dunn says.

“Just because the police are unlawfully there doesn't necessarily mean that your Charter rights have been violated,” he says.

To establish that his civil liberties were violated, the applicant had to show he had a reasonable expectation of privacy at the place he was located, Dunn says.

In this case, the majority found he didn’t have a privacy interest in the backyard because he wasn’t the owner or occupant of the property, Dunn says.

But Lauwers’ dissent “is somewhat groundbreaking in terms of extending privacy rights to homes of friends and families and other places as an invited guest,” he says.

“It makes no sense, logically, that if you're invited to someone's house that simply because you're now a guest and you're not at home that suddenly your Charter rights become essentially worthless,” Dunn says.

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