Her Majesty the Queen - v. -, 2020 SKPC 11

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 11 Date: February 28, 2020 Information: 991086264 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Mustafe Hussein Appearing: Mr. Daniel Arnot For the Crown Mr. Christopher Koban For the Accused ADDENDUM F.M. DAUNT, J [1] After R v Hussein, 2020 SKPC 8 was finalized, but before it was delivered, Crown counsel filed a written brief. Most issuesraised in the brief are answered in the judgment. However, the brief did raise two issues which were not previously argued.

First, Crowncites R v Belnavis, (SCC), [1997] 3 SCR 341 [Belnavis] at para 20 for the proposition that Mr. Hussein had noreasonable expectation of privacy in Louisa Dorion’s apartment, so he could not establish a breach of

section 8 of the Charter stemmingfrom the search warrant issued in this case. Second, he argues that, even absent grounds to arrest Mr. Hussein, on the facts of the casepolice had grounds to detain him for investigation and to conduct a safety search of his person. On February 14, in brief oral reasons, Idecided both issues in Mr. Hussein’s favour. This addendum provides written reasons for that decision. [2] I shall discuss the second issue first. Even assuming that the police were executing a valid search warrant, the evidenceshows the police did not, in fact, detain Mr. Hussein for investigation.

Rather, they arrested him. Constable MacDonald testified abouthis grounds to arrest Mr. Hussein, his decision to arrest, and his actions in conducting that arrest. He did not turn his mind to the option

of detention short of arrest. Indeed, the police plan was to arrest everyone in the apartment, whoever they might be, and to take them tothe police station for processing. As discussed in the judgment, that arrest, effected without reasonable grounds, was invalid, as was thesubsequent search incident to arrest. [3] As to the first issue, whether Mr. Hussein had a reasonable expectation of privacy in Ms. Dorion’s apartment, Belnavisstates, at para 20: In Edwards, the police sought to introduce evidence collected in a warrantless search of the apartment of the girlfriend of the accused.

The question was whether Edwards, as opposed to his girlfriend, had a reasonable expectation of privacy in her apartment such that hiss. 8 rights were violated by the search. The reasons of the majority set out the following framework for the s. 8 analysis, at para. 45: A review of the recent decisions of this Court and those of the U.S. Supreme Court, which I find convincing and properly applicable tothe situation presented in the case at bar, indicates that certain principles pertaining to the nature of the s. 8 right to be secure againstunreasonable search or seizure can be derived.

In my view, they may be summarized in the following manner: 1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. 2. Like all Charter rights, s. 8 is a personal right. It protects people and not places. 3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have beenviolated. 4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy.

Second, if he has such an expectation, was the search by the police conducted reasonably. 5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. 6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (

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 (vii) the objective reasonableness of the expectation. 7. If an accused person establishes a reasonable expectationof privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.[References omitted.] [4] Belnavis was a case about a passenger’s expectation of privacy in the contents of a vehicle.

As regards the search of Ms.Dorion’s apartment, which yielded the cell-phone, R v Edwards, (SCC), [1996] 1 SCR 128 [Edwards], cited inBelnavis, is more pertinent. In Edwards, police searched an apartment rented by the accused’s girlfriend, whom he had dated for threeyears. The accused had a key to the apartment, sometimes stayed overnight, and kept some personal belongings there. He was notpresent at the apartment when police conducted the search. Rather, he left the premises and was arrested in a public place shortly beforethe search, which was conducted without warrant but with the girlfriend’s consent.

The Supreme Court found Mr. Edwards was no morethan an “especially privileged guest.” He had no authority to regulate access to the apartment, no ability to exclude others from theapartment, and made no contribution to the maintenance of the apartment. In the totality of the circumstances, then, any expectation ofprivacy he had in the apartment was not reasonable. [5] Since Edwards was decided in 1996, the law has been evolving on this threshold issue, with the development of the conceptof reduced expectation of privacy, which still affords

section 8 protection. Recently, the majority judgment in R v Le, 2019 SCC 34 [Le]briefly discusses this issue, albeit in obiter. Le is a case of an invited guest in a fenced backyard. Although the Supreme Court decidedthe case on the

section 9 issue of arbitrary detention, the majority had this to say on the

section 8 threshold issue: [135] While our colleague says he is not deciding the s. 8 issue in a definitive manner, he expresses doubt about whether Mr. Le hadstanding to challenge the search as an invited guest on the property of another individual. We agree that, clearly, the protective scope ofs. 8, as applied to house guests, is not being decided in this case. However, we also do not wish to be seen as endorsing the analysistentatively put forward by our colleague. While the issue remains to be decided, the approach to privacy put forward by Moldaver J. doesnot take into consideration two fundamental points that ought to inform the s. 8 analysis.

[136] First, at its core, s. 8 is concerned with the point at which “the public’s interest in being left alone by government must give wayto the government’s interest in intruding on the individual’s privacy in order to advance its goals” (Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at pp. 159-60). The lens through which this analysis is conducted must always be normative and notcategorical. That is, the analysis does not proceed with the assumption that a categorical factor, like control, will have a dominatingimpact on whether a person has a reasonable expectation of privacy.

Rather, the inquiry is always driven by the question of whether aprivacy claim ought to “be recognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free,democratic and open society” (R. v. Reeves, 2018 SCC 56, at para. 28). Second, it is possible for an individual to have a diminished orqualified reasonable expectation of privacy while still retaining the benefit of s. 8 protection (R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R.34, at paras. 8-9; see also R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 29, citing R. v.

Tessling, 2004 SCC 67, [2004] 3S.C.R. 432, at para. 22). Guests’ expectations may be qualified by the knowledge that their host could invite others in, including thestate. However, it may still be objectively reasonable for a guest present on private property to expect that the state will not enteruninvited. [137] We are of the view that a case can be made that invited guests can, in some circumstances, have reasonable expectations ofprivacy in their host’s property. The determination of when, and to what extent, these guests have a reasonable expectation of privacywill be fact and context specific.

However, the analysis must always focus on s. 8’s fundamental concern with the public being left aloneby the state, the normative approach to discerning the parameters of privacy rights, and the fact that s. 8 provides protection to those whohave diminished or qualified reasonable expectations of privacy. [6]

Section 8 protects people, not places. Mr. Hussein was a person in a place when the police entered uninvited. It is difficultto fathom that Mr. Hussein might not expect privacy from state intrusion into that place while he was physically present. In this case, Ifind his expectation of privacy was reasonable. It was certainly reasonable for him to expect that agents of the state would not enteruninvited. He therefore has standing to challenge the validity of the search warrant. I base this finding on the following factors: 1. He was lawfully occupying a private residence. 2.

The informant’s tip suggested he was, in effect, carrying on business in that location. 3. He opened the door to the police, therefore had the authority to permit or deny entry to someone who might come knocking. 4. He was eating in the apartment. 5. He was personally present in the apartment when the warrant was executed. 6. He was the target of the investigation. 7. He was detained and searched before the apartment was searched. [7] If I am wrong on the standing issue, and Mr. Hussein did not have a reasonable expectation of privacy in Ms. Dorion’sapartment, then the cell phone was seized without violating Mr.

Hussein’s

section 8 rights. It is otherwise relevant, and so would beadmitted into evidence. However, no one could argue that Mr. Hussein did not enjoy a reasonable expectation of privacy in his ownpockets, which is where the rest of the evidence was found. The case is much like R v Williams, 2019 ONCJ 708 [Williams], filed bydefence. In Williams, the accused was found not to have a reasonable expectation of privacy in the apartment searched. However, as inthis case, the evidence was found on Mr. Williams’s person, uncovered in a search incident to arrest.

The grounds for his arrest werecontained in an Information to Obtain a Search Warrant which the trial judge found wanting. The evidence was excluded. Thus, even ifI am wrong on whether Mr. Hussein enjoyed a reasonable expectation of privacy in Louisa Dorion’s apartment, I would still findbreaches of his

section 8 and 9 rights stemming from his arrest without reasonable grounds and the search incident to that unlawfularrest. The fact the search warrant was issued without reasonable grounds remains relevant on a section 24(2) analysis, and I would stillexclude the items seized from his person. Dated this 28th day of February, A.D. 2020, at the City of Prince Albert, in the Province of Saskatchewan.

______________________ F.M. Daunt, J