R. v. Belnavis

R. v. Belnavis
Collection
Supreme Court Judgments
Date
1997-09-25
Report
[1997] 3 SCR 341
Case number
25507
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 25507
Decision Content
R. v. Belnavis, [1997] 3 S.C.R. 341
Carol Lawrence and Alicia Belnavis Appellants
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Belnavis
File No.: 25507.
1997: May 27; 1997: September 25.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Car stopped for speeding ‑‑ Officer looking for car’s documentation and questioning passenger ‑‑ Stolen goods contained in garbage bags found in car ‑‑ Driver and passenger charged with possession of stolen goods ‑‑ Whether the driver and the passenger had reasonable expectation of privacy engaged by the search and seizure ‑‑ If so, whether the evidence should be excluded under s. 24(2) of the Charter -- Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
The police stopped a car for speeding and ran a computer check after the driver (Belnavis) could produce no documentation. While the computer check was being processed, the officer returned to the car to look for any pertinent documents. He questioned the passenger (Lawrence) who had stayed in the car and noticed garbage bags on the seat crowding her. He found more in the trunk. On inspection, he found they contained new clothes with price tags. The two women gave differing explanations as to who owned the bags. They were subsequently charged with possession of stolen property. The trial judge found the search unreasonable contrary to s. 8 of the Canadian Charter of Rights and Freedoms , excluded the evidence of the clothing under s. 24(2) , and acquitted the accused. The Court of Appeal quashed the acquittals and ordered new trials. At issue here was whether the accused had a reasonable expectation of privacy engaged by the search and seizure, and if so, whether the evidence should be excluded under s. 24(2) of the Charter .
Held (Iacobucci J. dissenting in part and La Forest J. dissenting): The appeal should be dismissed.
Per Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin and Major JJ.: The driver of the car, driving with the apparent permission of the owner, had a reasonable expectation of privacy in the vehicle. Searching the vehicle without a warrant constituted a breach of s. 8 of the Charter .
The passenger had no expectation of privacy, either in relation to the vehicle or in relation to the items seized, and therefore could not claim a violation of her s. 8 rights. The question as to whether a passenger has a reasonable expectation of privacy in a vehicle depends upon the totality of the circumstances. All of the relevant facts surrounding a passenger’s presence in the vehicle must be considered. Here the facts demonstrated that the passenger had no reasonable expectation of privacy in the vehicle. Her connection to the vehicle was extremely tenuous. She had no control over the vehicle or access to it and did not demonstrate any relationship with the owner or driver which would establish some special access to or privilege in regard to the vehicle. No evidence indicated that she had a subjective expectation of privacy in the vehicle. There may well be other situations where a passenger could establish a reasonable expectation of privacy in a vehicle.
The passenger could not demonstrate a reasonable expectation of privacy in the seized merchandise and therefore had no reasonable expectation of privacy in relation to it. She did not identify any of the bags as hers and nothing on the exterior of the bags indicated a connection to her. A garbage bag is very different from a suitcase or kit bag with a name or initials on it.
The officer had reasonable and probable grounds, both objectively and subjectively, to search the vehicle. These grounds must inform the assessment of the seriousness of the Charter breach, when determining whether to admit the evidence under s. 24(2) . The officer properly stopped the speeding vehicle. He had every right to look for documents pertaining to its ownership or registration, to check it for safety reasons and to speak with the passenger. An objective observer would consider the officer had reasonable and probable grounds to believe the bags contained stolen goods and to check the trunk for more.
The transcript indicated that the officer clearly asserted a subjective belief in reasonable and probable grounds. The trial judge’s finding that he did not was unreasonable.
Whether or not the search was based upon reasonable and probable grounds, a consideration of all the circumstances leads to the conclusion that the evidence of the clothing should be admitted under s. 24(2) of the Charter . Three sets of factors need to be considered: the effect of admission on the fairness of the trial, the seriousness of the Charter breach and the effect of the exclusion of the evidence on the reputation of the administration of justice. Appellate courts should only intervene with respect to a lower court’s s. 24(2) analysis when that court has made some apparent error as to the applicable principles or rules of law or has made an unreasonable finding.
Trial fairness was not in issue.
The trial judge’s conclusion that the breach was serious could not stand. The degree of the seriousness of the breach decreases as the expectation of privacy diminishes. The reasonable expectation of privacy in relation to a car is greatly reduced, in comparison to that expected of a home or office and it is further reduced when the car belongs to another. Here, the trial judge failed to take into consideration the totality of the circumstances. The seriousness of the breach, if any, was diminished by the facts that there was no ongoing disregard for the accuseds’ Charter rights, that there was no indication that any possible breach was deliberate, wilful or flagrant, and that the officer acted entirely in good faith. Finally, the presence of reasonable and probable grounds mitigates the seriousness of the breach. The violation of the accuseds’ s. 8 right was little more than a technical one.
The trial judge did not appear to have turned his mind to society’s interest in the effective prosecution of crime or to the reliability or discoverability of the evidence. The exclusion, not the inclusion, of the evidence would cause harm to the administration of justice. The evidence was essential to the prosecution and was entirely reliable.
Per Sopinka J.: The police officer lacked reasonable and probable grounds. This conclusion, however, did not affect the necessity to resort to s. 24(2) of the Charter because a s. 8 breach occurred. Notwithstanding reasonable and probable grounds, a warrantless search violates s. 8 , absent a constitutionally valid law authorizing warrantless searches. The evidence, however, should be admitted for the reasons of Doherty J.A. in the Court of Appeal. The expectation of privacy in a dwelling is very different from that expected in a car which can be lawfully stopped by police officers virtually at random.
Per Iacobucci J. (dissenting in part): The passenger (Lawrence) demonstrated no expectation of privacy sufficient to ground a claim under s. 8 of the Charter . The trial judge’s conclusions with respect to the driver (Belnavis), however, were not unreasonable or based upon an error of law and were therefore entitled to appellate deference. Appellate courts cannot properly review findings of courts below in respect of s. 24(2) of the Charter and substitute their opinions absent some apparent error of law or a finding that is unreasonable.
The finding that the officer lacked reasonable and probable grounds to search the vehicle was not unreasonable. The grounds for the officer’s searching activity must be assessed from the point of view of the initial search. The mere presence in the back seat of garbage bags with new clothing did not constitute objectively reasonable and probable grounds supporting the search of those bags. Similar observations could be made concerning the presence of subjective belief in reasonable and probable grounds. Given conflicting evidence as to subjective belief, an appellate court cannot state with certainty that subjective belief in reasonable and probable grounds existed or that the trial judge acted unreasonably in failing to find that it did.
When police do not have sufficient grounds to support a search, they must leave the suspect alone and not proceed in violation of the Charter to acquire the evidence they want. This is no less true of a car than a home or office.
The Charter breach was serious, notwithstanding its brief and isolated nature and the reduced expectation of privacy in the borrowed car. The trial judge was aware of concerns raised about the seriousness of the breach and his finding the breach to be serious was consistent with previous authority. He gave adequate consideration to whether the exclusion of the evidence would bring the administration of justice into disrepute. Often this factor is mentioned only in passing.
Per La Forest J. (dissenting): The police search of the car and the property of the driver and its passenger occurred in circumstances that could no doubt be viewed as suspicious but where the officer had no reasonable and probable grounds to believe those whose property was searched had committed a criminal offence. The requirement of reasonable and probable grounds is the minimum requirement for a search.
Taking a drive with one’s spouse, friends or anyone else permitted to do so by the owner or driver is a common and perfectly legitimate activity in a free society and one which the citizen should generally be left free to pursue in the reasonable expectation that he or she would be left alone by the police. Both drivers and passengers have an equally reasonable expectation of privacy, not only as to their persons but also with regard to any goods they may be carrying in a motor vehicle.
There is less expectation of privacy in an automobile not because a person is less entitled to privacy but because, for the purposes of regulating and controlling traffic safety in cars, it is reasonable for the state to seek entry into a car more freely than to the home, and once there the police may incidentally observe what is illegal. But beyond this, the individual as such and the privacy he or she has in property brought with him or her is deserving of as much privacy as if the individual were at home.
The standard advanced by the majority, namely, that the police may search an automobile when the “totality of circumstances” dictates that it is reasonable to intrude upon a passenger’s expectation of privacy in relation to the property brought by the passenger, is well below the traditional standard of reasonable and probable grounds. A vague standard such as this offers almost no protection to the citizen from interference by the police and also has grave implications for equality in the application of the law. Another reason for rejecting the “totality of circumstances” test is that it draws distinctions based on the personal relationships and undermines the fact that s. 8 of the Charter applies to everyone.
There is agreement with the trial judge that the search of the car and the property of both the accuseds was unreasonable. The evidence, as against the driver and the passenger, should be rejected under s. 24(2) of the Charter .
Cases Cited
By Cory J.
Considered: R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Stillman, [1997] 1 S.C.R. 607; distinguished: R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Jacoy, [1988] 2 S.C.R. 548; referred to: R. v. Collins, [1987] 1 S.C.R. 265; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Duarte, [1990] 1 S.C.R. 30.
By Sopinka J.
Distinguished: R. v. Kokesch, [1990] 3 S.C.R. 3; referred to: R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Wise, [1992] 1 S.C.R. 527.
By Iacobucci J. (dissenting in part)
R. v. Duguay, [1989] 1 S.C.R. 93; R. v. Greffe, [1990] 1 S.C.R. 755; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Goncalves, [1993] 2 S.C.R. 3; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Barrett, [1995] 1 S.C.R. 752; R. v. Burns, [1994] 1 S.C.R. 656; R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. Lamy (1993), 80 C.C.C. (3d) 558; R. v. Simpson (1993), 20 C.R. (4th) 1; R. v. McMaster, [1996] 1 S.C.R. 740; R. v. Morrissey (1995), 97 C.C.C. (3d) 193; R. v. Klimchuk (1991), 67 C.C.C. (3d) 385; R. v. Stockley, [1997] N.J. No. 25 (QL); R. v. W.S.S.K., [1991] B.C.J. No. 3603 (QL).
La Forest J. (dissenting)
Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Edwards, [1996] 1 S.C.R. 128; Maryland v. Wilson, 117 S.Ct. 882 (1997); R. v. Wise, [1992] 1 S.C.R. 527; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Mellenthin, [1992] 3 S.C.R. 615; Rakas v. Illinois, 439 U.S. 128 (1978); R. v. Landry, [1986] 1 S.C.R. 145.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
Authors Cited
Roach, Kent. Constitutional Remedies in Canada. Toronto: Canada Law Book, 1994 (loose-leaf updated November 1995, release 2).
APPEAL from a judgment of the Ontario Court of Appeal (1996), 29 O.R. (3d) 321, 91 O.A.C. 3, 107 C.C.C. (3d) 195, 48 C.R. (4th) 320, 36 C.R.R. (2d) 32, allowing an appeal from acquittals by Salhany J. Appeal dismissed, Iacobucci J. dissenting in part, La Forest J. dissenting.
James Lockyer and Paul Shapiro, for the appellants.
Christine Bartlett‑Hughes, for the respondent.
//Cory J.//
The judgment of Lamer C.J. and L’Heureux-Dubé, Gonthier, McLachlin and Major JJ. was delivered by
1 Cory J. -- What expectation of privacy can a passenger and a driver have in a car and what are the consequences of a police search of the car which violates whatever right to privacy may exist? These are the questions presented on this appeal.
Factual Background
2 At about 8:30 p.m. on June 5, 1991, Constable Boyce of the Cambridge O.P.P. stopped a speeding car with New York licence plates on the Highway 401 near Kitchener. In the car were three young women, the two appellants and a teenager. Constable Boyce asked the driver, the appellant Belnavis, for her licence, insurance and vehicle registration. When she admitted that she had no documentation, the officer asked her to accompany him to the police cruiser. She went, accompanied by the teenage passenger who had occupied the front seat of the vehicle. This left the appellant Lawrence sitting in the passenger side of the back seat. The officer’s intention was merely to write up a speeding ticket, but suspecting that the car might be stolen he ran a computer check of the plates.
3 Belnavis gave the officer her name and date of birth and told him she was from Ontario. After he ran a licence check, she corrected her birth date, increasing her age by three years. He asked her who owned the vehicle and she told him it belonged to a friend. While he waited for information on the vehicle, the officer returned to the car to look for any documents pertaining to its ownership or registration. The contents of the glove box were so messy that Constable Boyce decided there was no point looking through them. He then stepped out of the vehicle, opened the back door on the passenger side, and stuck his head inside the vehicle so he could speak with Lawrence. He did this because the roar of the traffic alongside Highway 401 made it difficult to hear.
4 Constable Boyce asked Lawrence to identify herself and she provided her name and birth date. As they were speaking, Constable Boyce noticed three garbage bags on the driver’s side of the back seat. They were open and appeared to be full of clothing. He could also see price tags on some of the garments hanging out of the garbage bags. Constable Boyce reached into one of the bags and removed three or four articles. They were all new and had price tags attached. He asked Lawrence who owned the bags and she replied that they each owned one bag. She did not indicate which bag belonged to her. The trial judge found that the officer also looked in the trunk while the car was pulled off to the side of the highway, and discovered five more garbage bags filled with clothing.
5 Constable Boyce returned to the police cruiser and put the same question to Belnavis. She told him the bags were in the car when she got it. At this point, the computer search showed that the car was not stolen, but that there was an outstanding arrest warrant for Belnavis for unpaid traffic fines. He proceeded to arrest her on the authority of that warrant. After arresting Belnavis, Constable Boyce returned to the vehicle and asked Lawrence who owned the car. She replied that it had been given to Belnavis by her boyfriend.
6 At this point, Constable Boyce decided to call his supervisor, Sergeant Thornton, for assistance. He testified as to his reason for doing so in these words:
A. Because I had . . . the first thing was three females involved. I was on my own it was difficult to separate what I had, which I had never learned anyway. I really didn't know what I had at that time. I still felt I could even have [a] stolen car involved because I have experienced, actually stopped a stolen car and not finding out until three hours, four hours later that the thing was stolen. It's just not on the system at the time or been reported. The new clothing with tags. Three garbage bags. It just didn't make sense. Plus the explanations which were being given to me. Lawrence told me they had come from [Staten] Island.
The trial judge found that when Sergeant Thornton arrived at the scene, Constable Boyce pointed out the three green garbage bags of clothing in the back seat of the car and the five other bags in the trunk. He also had a purse containing 12 pairs of women’s panties and a driver’s licence belonging to Belnavis.
7 The car was towed to a nearby police station. The appellants were charged with ten counts of possession of stolen property.
Decisions Below
Ontario Court (General Division)
8 At the opening of the trial, a voir dire was held regarding the admissibility of the clothing. It was accepted for the purposes of the voir dire that the merchandise was stolen.
9 The trial judge noted that because the search was a warrantless one, he must consider whether Constable Boyce had reasonable grounds to conduct the search. He found that there was no basis for the officer to believe, objectively or subjectively, that the items in the garbage bags were stolen. The essence of the trial judge's reasons can be found in these two extracts from his reasons:
Viewed objectively, I can find no basis for reasonable cause. What the officer observed was three medium-sized garbage green bags 2' x 1 ½' with some new clothing and price tag [sic] on top. There was nothing to lead him to believe that all of the items in both bags were new. Moreover, even assuming that all of the items were newly acquired, it does not necessarily follow that they were probably stolen. Nor does it necessarily follow from the fact that the clothing was in garbage bags instead of shopping bags provided by retail vendors that they were probably stolen. Nor can I accept that the answers given by the accused to his questions about the ownership of the clothing, viewed objectively, would have led a reasonable person to conclude that these items were probably stolen. Finally, there was nothing which would give him reasonable cause to conclude that there was probably stolen property in the trunk of the vehicle.
. . .
In this case, Constable Boyce quite properly stopped the vehicle for speeding and detained Belnavis while he made inquiries to obtain proper identification, her driver's licence, her insurance and particulars regarding the ownership of the vehicle. These were duties imposed upon him by the Highway Traffic Act. Moreover, he acted quite reasonably in making inquiries about where the occupants were coming from, who owned the vehicle and where they were going. In the absence of identification and proper documentation, it was reasonable for him to make enquiries about whether the vehicle was stolen. I am also of the view that it was not improper for him to inquire about the contents of the bags in the light of his concern that the vehicle was stolen. I am satisfied on the evidence that those questions were asked before he received a response from the dispatcher that the vehicle was not stolen.
However, as I have said, I cannot accept that viewed objectively all of these factors would have led a reasonable man to conclude that the items were stolen. Moreover, they would not have led a reasonable man to assume, as Constable Boyce said it did, that there must be more clothing in the trunk. In my view, the search was unreasonable in the circumstances.
10 He concluded that even though the vehicle was properly stopped for speeding and the appellant Belnavis was correctly arrested for unpaid fines, once Constable Boyce confirmed that the vehicle was not stolen there was no reason to search it. He made no specific reference to the search of the purse. It is, however, implicit in his reasons that all seizures made by Constable Boyce were unreasonable and contravened s. 8 of the Canadian Charter of Rights and Freedoms .
11 In considering whether the merchandise should be excluded the trial judge referred to the relevant considerations set out in R. v. Collins, [1987] 1 S.C.R. 265. He found that the admission of the evidence would not render the trial unfair. He went on, however, to find that the breach was a serious one, even though the officer did not act in bad faith. He concluded that the serious nature of the breach necessitated the exclusion of the merchandise from evidence. After he excluded the evidence, there was no other evidence of theft to tender and the appellants were acquitted.
Ontario Court of Appeal (1996), 29 O.R. (3d) 321
12 The Court of Appeal, in a unanimous decision, allowed the appeal, quashed the acquittals and ordered new trials.
13 Doherty J.A. held that there were two fundamental issues in the appeal. First, did the police conduct interfere with the reasonable expectations of privacy of either of the appellants? Second, if the answer to the first question is yes, then was that interference reasonable? He noted that the onus is on the appellants to demonstrate that they had a reasonable expectation of privacy. If the appellants cannot meet that onus, then they cannot obtain a remedy under s. 24(2) of the Charter , because such a remedy is only available to someone whose own rights under s. 8 have been breached. If they do meet the onus, then the Crown must show that the interference with the appellants’ privacy was reasonable.
14 Lawful presence in the vehicle, in Doherty J.A.’s view, was only one factor to be considered in the assessment of a reasonable expectation of privacy, and did not per se create a privacy expectation with respect to the vehicle or its contents. He observed that a person may have a reasonable expectation of privacy over the place or the thing seized, or both. He was satisfied that Belnavis established a reasonable expectation of privacy in relation to the car because she had possession and control over the vehicle and the owner had consented to her use of the car. However, he found that Lawrence had not demonstrated that she had a reasonable expectation of privacy. In his view, because she was merely a passenger, she did not automatically have a reasonable expectation of privacy over the vehicle. He noted that there may be circumstances which would enable a passenger to establish such an expectation, but they were not present in this case.
15 Doherty J.A. also recognized that Lawrence could have had a reasonable expectation of privacy in the things seized, but it was incumbent upon her to demonstrate that she had an ownership interest in them. This she had not done with the result that she had no basis for alleging her s. 8 right to be free from unreasonable search had been breached.
16 With regard to s. 24(2) , Doherty J.A. agreed with the trial judge’s conclusion that the admission of the evidence would not adversely affect the fairness of the trial. He noted that the trial judge found that the breach was a serious one and reluctantly accepted this finding of fact. He did comment, however, at p. 349, that:
The seriousness of the breach is somewhat mitigated by several factors. The place searched was an automobile and Ms. Belnavis' somewhat limited expectation of privacy was further attenuated by the lawful stopping and detention of the vehicle. Ms. Belnavis was lawfully detained throughout the process and unlike many cases involving an unreasonable search, there was no pattern of police conduct suggesting a disregard for her constitutional rights. But for the improper search, Ms. Belnavis was treated in an entirely proper manner by the police.
17 Doherty J.A. found that the exclusion of the evidence would have negative consequences for the administration of justice because it was essential to the prosecution and was completely reliable. While the charges were not of the most serious nature, there was a sufficient quantity of merchandise to suggest something beyond an isolated act of petty theft. He concluded that Ms. Belnavis did not demonstrate on the balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute. Therefore, he held that the evidence should not have been excluded.
Issues
18 (1) Did the appellant Lawrence have a reasonable expectation of privacy engaged by the search and seizure?
(2) Should the evidence be excluded under s. 24(2) of the Charter ?
Analysis
Did Lawrence Have a Reasonable Expectation of Privacy?
19 Both parties to this appeal concede that as the driver of the car with the apparent permission of the owner to be driving, Belnavis had a reasonable expectation of privacy in the vehicle and thus could advance a claim that her s. 8 Charter rights were violated by the police search and seizure of articles. However, it is more difficult to determine whether Lawrence, as a passenger in the car, had a reasonable expectation of privacy. The trial judge appeared to presume that she did. However, relying upon this Court’s decision in R. v. Edwards, [1996] 1 S.C.R. 128, Doherty J.A. concluded that she did not. I agree with his conclusion.
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 his s. 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 to the situation presented in the case at bar, indicates that certain principles pertaining to the nature of the s. 8 right to be secure against unreasonable 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 been violated.
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 expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner. [References omitted.]
21 It was concluded that Edwards had not demonstrated that he had a reasonable expectation of privacy in his girlfriend’s apartment. Even though he had a key to the apartment and was a visitor over the three‑year period that they had been dating, this was insufficient to establish an expectation of privacy. It was noted, at para. 47, that Edwards’ girlfriend described him as “just a visitor” who stayed over occasionally, and that he was described in the courts below as “no more than an especially privileged guest”. In addition, Edwards did not contribute to the rent or household expenses of the apartment, although he did keep a few personal belongings there. Finally, Edwards had no authority to regulate access to the apartment.
22 The approach outlined in Edwards makes it clear that the question as to whether a passenger will have a reasonable expectation of privacy in a vehicle will depend upon the totality of the circumstances. All of the relevant facts surrounding a passenger’s presence in the vehicle will have to be considered in order to determine whether the passenger had a reasonable expectation of privacy. In this case, although Lawrence was present at the time of the search, there are few other factors which would suggest she had an expectation of privacy in the vehicle. First, her connection to the vehicle was extremely tenuous. She did not own the vehicle, she was merely a passenger in a car driven by a friend of the owner of the vehicle. There was no evidence that she had any control over the vehicle, nor that she had used it in the past or had any relationship with the owner or driver which would establish some special access to or privilege in regard to the vehicle. Lawrence did not demonstrate any ability to regulate access to the vehicle. Finally, there was no evidence that she had a subjective expectation of privacy in the vehicle. I agree with Doherty J.A. that the trial judge erred by apparently presuming that a passenger would have a reasonable expectation of privacy in a vehicle and in failing to consider the totality of the circumstances, the approach set out in Edwards. The facts of the case demonstrate that Lawrence did not have a reasonable expectation of privacy in the vehicle.
23 However there may well be other situations in which a passenger could establish a reasonable expectation of privacy in a vehicle. As Doherty J.A. stated at the Court of Appeal, at p. 334:
There may be other circumstances, such as the relationship between the owner and the passenger, or the terms on which the passenger came to be a passenger, that will support the contention that a passenger had a reasonable expectation of privacy in relation to the vehicle. . . .
For example, in many cases there would be little difference in the expectation of privacy for the owner‑operator of a car and that of his or her spouse. Similarly, if two people were travelling together on an extended journey and were sharing driving responsibilities and expenses, each would be likely to have an equal expectation of privacy in the vehicle.
24 The only other manner in which Lawrence could claim a violation of her s. 8 rights is if she could demonstrate a reasonable expectation of privacy in relation to the items seized, specifically, the bags of merchandise. This she could not do. When asked about the three garbage bags in the back seat of the car, Lawrence stated only that each of the occupants of the vehicle owned one of the bags. She did not identify one of the bags as hers, or make any gesture which suggested that she claimed one bag in particular as her own. Nor was there anything on the exterior of any of the bags to indicate a connection to Lawrence. A garbage bag is very different from a suitcase with initials displayed or a kit bag with a name on it. A green garbage bag offers no hints that it has a particular owner. And a garbage bag filled with brand new clothes with price tags still affixed is both anonymous and suspicious. In short, there was nothing to indicate that she had an expectation of privacy in relation to any particular bag.
25 I find it impossible to conclude that Lawrence had any expectation of privacy, either in relation to the vehicle or in relation to the items seized. Therefore, she cannot claim a violation of her s. 8 rights. I would dismiss her appeal.
Should the Evidence be Excluded Under s. 24(2) of the Charter ?
26 Both parties conceded that the appellant Belnavis had a privacy right in relation to the car. The Crown did not argue that the courts below erred in finding that the warrantless search violated her s. 8 rights. Rather it proceeded directly to the analysis under s. 24(2), and submitted that the evidence should have been admitted despite the Charter violation. I agree that to search the vehicle without a warrant constituted a breach of s. 8 .
27 However, in proceeding to the analysis under s. 24(2) I must stress that I find it difficult to understand why the trial judge concluded that the officer lacked reasonable and probable grounds to search the vehicle. There is both an objective and a subjective component to reasonable and probable grounds, and I believe they were both established. The reasonable and probable grounds for the search must then inform the assessment of the seriousness of the Charter breach, when determining whether to admit the evidence under s. 24(2) .
28 There is no question that Constable Boyce properly stopped the vehicle for a speeding violation. Once the car had been pulled over and the driver said she did not have any ownership information, the officer had every right to look for documents pertaining to the ownership or registration of the vehicle. Similarly, he had the right to open the back door and look into the rear of the vehicle for safety reasons and to speak with the passenger in the back seat. See R. v. Mellenthin, [1992] 3 S.C.R. 615, at p. 623. The garbage bags full of new clothes with the price tags still attached were then in plain view in the back seat.
29 When he saw the clothing in the bags in the back seat of the car, Constable Boyce asked Lawrence who owned them. Lawrence said that each of the women owned one bag. He then returned to his cruiser where Belnavis was waiting and asked her the same question. She replied that the bags were in the car when she picked it up.
30 In my view, upon seeing three garbage bags full of new clothing with price tags on them, and after receiving conflicting stories about their ownership, an objective observer would find that the officer had reasonable and probable grounds to believe that the bags contained stolen property. Further, Lawrence was somewhat crowded in the back seat by the three bags of clothing. As a result of that observation, a reasonable person would have good cause to believe that the trunk might contain more stolen clothing. Despite all this cogent evidence the trial judge concluded that when “viewed objectively” this did not amount to reasonable and probable grounds for the search. This conclusion as to the lack of objective grounds I find difficult to accept.
31 Turning to the subjective belief of the officer, the Court of Appeal noted that Constable Boyce was never specifically asked at the voir dire whether he thought he had reasonable and probable grounds to believe that the goods were stolen prior to searching the trunk. At the preliminary inquiry, Constable Boyce did testify that he believed he had reasonable and probable grounds to suspect the merchandise in the back seat was stolen when he decided to open the trunk. However, when he set out the grounds for his belief, Constable Boyce referred to the appellants’ inability to produce receipts for any of the material. Yet the appellants were not asked for receipts until they returned to the police station, and the trial judge found that the trunk was opened at the roadside. Therefore, if the officer’s belief that he had reasonable and probable grounds depended upon the appellants’ inability to produce receipts then he would not have had reasonable grounds prior to making the search.
32 Nevertheless, the following exchange from the cross‑examination of Constable Boyce at trial supports and, I believe, confirms the position that the officer did believe that he had reasonable grounds for opening the trunk even before he knew of the absence of receipts:
Q. And the reason you opened the trunk was what, you figured because it was three garbage bags in the car that it was sort of like a hunch that there might be more stuff in the car?
A. Indirectly I felt that the three bags which were in the car were stolen, was stolen property. I felt that the passenger Lawrence obviously had to sit somewhere, namely in the back seat. She was crowded by the three garbage bags and that any more stolen property would of course be in the trunk and it seemed logical in police work to check the trunk. [Emphasis added.]
This portion of the transcript amounts to a clear assertion of a subjective belief in reasonable and probable grounds.
33 Moreover, the trial judge treated the officer as having a subjective belief that he had reasonable and probable grounds for conducting the search. This is confirmed by the following extract from his reasons:
Constable Boyce said that he found it unusual that new clothing was stuffed in three garbage bags to the brim. This coupled with the inconsistent responses as to ownership plus the fact that the accused had travelled from New York to Kitchener via London gave him reasonable grounds to believe that the items were stolen.
It appears to me that the officer did indeed have a subjective belief that the property was stolen.
34 However, we are left with the trial judge’s specific finding that when viewed objectively, the officer did not have reasonable and probable grounds for the search. Doherty J.A. stated, at p. 348, that he was deferring to this conclusion “after some hesitation”. I would go further. In my view, this is a finding of fact which could well be characterized as unreasonable. However, whether or not the search was based on reasonable and probable grounds, a consideration of all of the circumstances in the context of a s. 24(2) analysis leads to the conclusion that the evidence obtained as a result of the search should be admitted.
35 The law regarding s. 24(2) has been recently clarified by this Court in R. v. Stillman, [1997] 1 S.C.R. 607. There it was confirmed that there are still three sets of factors to be considered in deciding whether to admit evidence obtained in violation of the Charter . They are the effect of admission on the fairness of the trial, the seriousness of the Charter breach, and the effect of the exclusion of the evidence on the reputation of the administration of justice. The majority in Stillman, at para. 68, also reiterated the tradit