R. v. Buhay

R. v. Buhay
Collection
Supreme Court Judgments
Date
2003-06-05
Neutral citation
2003 SCC 30
Report
[2003] 1 SCR 631
Case number
28667
Judges
McLachlin, Beverley; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie
On appeal from
Manitoba
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 28667
Decision Content
R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30
Mervyn Allen Buhay Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Quebec Intervener
Indexed as: R. v. Buhay
Neutral citation: 2003 SCC 30.
File No.: 28667.
2002: November 1; 2003: June 5.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for manitoba
Criminal law — Evidence — Admissibility — Marijuana seized from rented locker — Whether accused’s constitutional right to be secure against unreasonable search or seizure violated — If so, whether evidence should be excluded — Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
Constitutional law — Charter of Rights — Unreasonable search and seizure — Application of Charter — Exclusion of evidence — Marijuana seized from rented locker — Whether accused had reasonable expectation of privacy in locker — Whether Charter applies to initial search by private security guards — Whether subsequent warrantless search and seizure by police violated accused’s right to be secure against unreasonable search or seizure — If so, whether evidence should be excluded — Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) , 32 .
The accused rented a locker at the Winnipeg bus depot. A short time later, one of the security guards detected a strong odour of marijuana coming from the locker. The locker was opened by a Greyhound agent for the security guards, and inside they found a duffel bag containing some marijuana. The security guards placed the items back in the locker, locked it, and contacted the police. The police officers smelled marijuana and a Greyhound agent opened the locker for them. One of the officers seized the bag of marijuana, and placed it in the cruiser. The police officers did not have a search warrant. One of the officers testified that the idea of obtaining a warrant did not cross his mind. The other officer mentioned that he considered obtaining a warrant, but did not think the accused had a reasonable expectation of privacy in the locker and that, further, he did not think he had sufficient grounds to obtain a warrant. The next day, an individual tried to retrieve the bag from the locker, and the accused was later arrested and charged with possession of marijuana for the purpose of trafficking. The trial judge, finding a violation of s. 8 of the Canadian Charter of Rights and Freedoms , granted the motion to exclude the evidence under s. 24(2) of the Charter , and acquitted the accused. The Court of Appeal allowed the Crown’s appeal and entered a conviction.
Held: The appeal should be allowed and the acquittal entered at trial restored.
The accused had a reasonable expectation of privacy in the contents of the locker he rented. The accused had control and possession of the locker’s contents through possession of the key. Moreover, the signs on the lockers made no mention of the possibility that they might be opened and searched. A reasonable person would expect that his or her private belongings, when secured in a locker that he or she has paid money to rent, will be left alone, unless the contents appear to pose a threat to the security of the bus depot. The existence of a master key does not in itself destroy the expectation of privacy. While it was not as high as the privacy afforded to one’s own body, home or office, a reasonable expectation of privacy existed in the locker sufficient to engage the accused’s s. 8 Charter rights.
The initial search by the security guards did not trigger the application of the Charter because the guards were not acting as agents of the state, nor could their activities be assimilated or ascribed to the government. However, the police were required to obtain a warrant to search the accused’s locker. The warrantless search and seizure was an impermissible intrusion of the state on a legitimate and reasonable expectation of privacy and therefore constitutes a violation of s. 8 of the Charter . The Court of Appeal erred in finding that there was no search and seizure by the police. A person’s reasonable expectation of privacy as to the contents of a rented and locked bus depot locker is not destroyed merely because a private individual invades that privacy by investigating the contents of the locker. The accused’s reasonable expectation of privacy was continuous. The intervention of the security guards does not relieve the police from the requirement of prior judicial authorization before seizing contraband uncovered by security guards.
This Court should not interfere with the trial judge’s decision to exclude the evidence under s. 24(2) of the Charter . On the issue of trial fairness, the evidence in this case is non‑conscriptive, “discoverable” evidence, and its admission would not render the trial unfair. On the question of the seriousness of the breach, the trial judge is entitled to considerable deference. The fact that obtaining a warrant did not even cross the mind of one officer demonstrates a certain casual attitude toward the accused’s Charter rights. The other officer’s admission that he did consider obtaining a warrant but that he thought that he lacked sufficient grounds to get one also suggests blatant disregard for the accused’s rights. Moreover, there was no situation of urgency or necessity, as there was no immediate danger that the evidence would be lost, removed or destroyed, nor was an imminent threat posed by the marijuana in the locker. The situation did not require immediate action to secure the evidence, as the locking mechanism was still engaged and the 24‑hour limit had not expired. It is also clear from the record that the police could have obtained the evidence without infringing the accused’s rights. The failure of the police officers to explore other investigative techniques that were available to them shows the absence of sincere effort to comply with the Charter . While some other elements militate in favour of the admission of the evidence, the evidence considered as a whole supports a conclusion that the violation was serious. The trial judge’s assessment of the seriousness of the interference with the accused’s privacy interests reveals no misapprehension of the evidence, or failure to consider relevant factors, and is not unreasonable.
The administration of justice does not have to be brought into disrepute on a national scale before courts may interfere to protect the integrity of the process within which they operate. While s. 24(2) is not an automatic exclusionary rule, neither should it become an automatic inclusionary rule when the evidence is non‑conscriptive and essential to the Crown’s case. An appellate court must determine if, all factors considered, the trial judge’s conclusion to exclude the evidence, based on her or his finding that its admission would bring the administration of justice into disrepute, was reasonable. In light of the trial judge’s concern as to the long‑term effect of the law enforcement officers’ attitude in this case, it was well within his judicial discretionary power to conclude that the admission of the marijuana in this case would cause greater disrepute to the justice system than its exclusion would, and such decision is very well within the limits of reasonableness.
Cases Cited
Referred to: R. v. Fitch (1994), 47 B.C.A.C. 154; R. v. M. (M.R.), [1998] 3 S.C.R. 393; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Edwards, [1996] 1 S.C.R. 128; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Dinh (2001), 42 C.R. (5th) 318, 2001 ABPC 48; R. v. Mercer (1992), 70 C.C.C. (3d) 180; R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; R. v. Broyles, [1991] 3 S.C.R. 595; R. v. Caucci (1995), 43 C.R. (4th) 403; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Kokesch, [1990] 3 S.C.R. 3; Coolidge v. New Hampshire, 403 U.S. 443 (1971); R. v. Spindloe (2001), 154 C.C.C. (3d) 8; R. v. Belliveau (1986), 75 N.B.R. (2d) 18; R. v. Nielsen (1988), 43 C.C.C. (3d) 548; R. v. Kouyas (1994), 136 N.S.R. (2d) 195, aff’d [1996] 1 S.C.R. 70; R. v. Fitt (1995), 96 C.C.C. (3d) 341, aff’d [1996] 1 S.C.R. 70; Texas v. Brown, 460 U.S. 730 (1983); Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38; R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Therens, [1985] 1 S.C.R. 613; R. v. B. (C.R.), [1990] 1 S.C.R. 717; 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. Belnavis, [1997] 3 S.C.R. 341; R. v. Stillman, [1997] 1 S.C.R. 607; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; R. v. Evans, [1996] 1 S.C.R. 8; R. v. Silveira, [1995] 2 S.C.R. 297; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Jacoy, [1988] 2 S.C.R. 548; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Burlingham, [1995] 2 S.C.R. 206; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Kitaitchik (2002), 161 O.A.C. 169.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) , 32(1) .
Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2) .
Private Investigators and Security Guards Act, R.S.M. 1987, c. P132, ss. 1 “security guard”, 35.
Authors Cited
Paciocco, David M., and Lee Stuesser. The Law of Evidence, 3rd ed. Toronto: Irwin Law, 2002.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.
APPEAL from a judgment of the Manitoba Court of Appeal (2001), 156 Man. R. (2d) 111, 84 C.R.R. (2d) 366, 246 W.A.C. 111, [2001] M.J. No. 215 (QL), 2001 MBCA 70, setting aside a decision of the Provincial Court (2000), 147 Man. R. (2d) 149, [2000] M.J. No. 571 (QL). Appeal allowed.
Bruce F. Bonney and G. Bruce Gammon, for the appellant.
David G. Frayer, Q.C., and Erin E. Magas, for the respondent.
Written submissions only by Carole Lebeuf, for the intervener.
The judgment of the Court was delivered by
1 Arbour J. — We are asked in this appeal to determine the constitutionality of a seizure of marijuana made from a locker the appellant had rented at the Winnipeg bus depot. This involves the determination of whether the Canadian Charter of Rights and Freedoms applies to an initial search conducted by private security guards. It also involves the determination of whether the subsequent warrantless search and seizure by the police violated the appellant’s rights under s. 8 of the Charter and if so, whether the evidence should be excluded under s. 24(2) of the Charter .
I. The Facts
2 The Winnipeg bus depot has a set of lockers that can be rented out by the public. The lockers can be accessed by a key. The fee for a locker is $2 for any period of 24 hours or less, with a $4 overtime charge for an additional 24 hours. After the period expires, the contents of the locker may be removed and held for 30 days, after which they can be sold for accrued charges. A sticker on each locker explains these terms and conditions. The lockers are owned by Canadian Locker Company and are managed on an alternating basis by Greyhound Bus Lines and Grey Goose Bus Lines.
3 On March 14, 1998, two individuals approached the security desk at the Winnipeg bus depot to inquire about the use of lockers there. While one of the individuals spoke to the security guards, the other went to the bank of lockers and removed a bag from locker 135. He was noticed digging through the bag, and one of the security guards noted a slight odour of marijuana. The second man was pacing in front of the security guards and was glancing around. The two individuals were then seen locking the locker and walking out of the bus depot.
4 Approximately one hour and 45 minutes later, after completing other duties, the security guards decided to investigate further. They went to the locker. One of the guards, Mr. Mah, sniffed the vent of the locker door and smelled a strong odour of marijuana. The security guards went to the Cargo Express Agent for Greyhound Bus Lines, Mr. Will, and advised him of what they suspected was in the locker and inquired whether they could gain access. Mr. Will opened the locker with his master key. One of the security guards removed the duffel bag that they had seen being placed in the locker earlier and opened it. Inside, they found a sleeping bag with a quantity of marijuana rolled up in the middle. Following this discovery, the security guards placed the items back in the locker, locked it, and contacted the Winnipeg Police Service.
5 A short time later, Constables Barker and Riddell attended the bus depot and were directed by the security guards to locker 135. The officers smelled marijuana and the Greyhound agent opened the locker for them. Constable Barker seized the bag of marijuana and placed it in the back of his cruiser.
6 The police officers did not have a search warrant. Constable Barker testified that the idea of obtaining a warrant never crossed his mind and Constable Riddell mentioned that he did consider obtaining a warrant but that he did not think the appellant had a reasonable expectation of privacy in the locker and that, further, he did not think he had sufficient grounds to obtain a warrant.
7 Following the seizure of the drugs from the locker, the officers placed a note inside the locker with the pager number of an undercover vice officer. They instructed the security guards at the bus terminal to keep an eye on the locker. The next day, an individual attended at locker 135, opened it with a key, and upon reading the note, left the premises. The appellant was arrested later that afternoon.
8 At the time of these events, Greyhound Bus Lines was responsible for the lockers. Mr. Will testified that the company’s policy was to enter a locker if it believed that the locker contained something dangerous or if it was “giving off a bad odour or something like that”. No notice of this policy was given to those who rented the lockers.
II. Judgments Below
A. Provincial Court of Manitoba (2000), 147 Man. R. (2d) 149
9 The appellant was charged with possession of marijuana for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 . At trial before Aquila Prov. Ct. J., a voir dire was held to determine the admissibility of the marijuana that was seized from the bus depot locker.
10 The trial judge first determined whether the Charter applied to the security guards. He held that it was clear from the evidence that the security guards were employed by a private security firm and that in order for the Charter to apply, they must be found to have been acting as agents of the state. Considering the decisions of the British Columbia Court of Appeal in R. v. Fitch (1994), 47 B.C.A.C. 154, and of this Court in R. v. M. (M.R.), [1998] 3 S.C.R. 393, he concluded that the security guards were not agents of the state and that the Charter therefore did not apply to the initial search by them.
11 Aquila Prov. Ct. J. then examined the search and seizure by the police officers. As the search was warrantless, it was prima facie unreasonable. In accordance with the test set out in R. v. Collins, [1987] 1 S.C.R. 265, it could only be found reasonable if: (1) it was authorized by law, (2) the law itself was reasonable, and (3) the manner in which the search was carried out was reasonable. Aquila Prov. Ct. J. found that there were no “exigent circumstances” in the present case, and that the police officers could have easily obtained a search warrant.
12 Aquila Prov. Ct. J. then considered whether the appellant had a reasonable expectation of privacy with respect to the locker. He followed the test set out by Cory J. in R. v. Edwards, [1996] 1 S.C.R. 128, and concluded that the appellant had a personal and reasonable expectation of privacy. In particular, the appellant had a contract for exclusive use of the locker for 24 hours, which had not expired. Unless the locker contained something dangerous or was giving off an obnoxious smell, neither the managers nor the police had a right to enter. Consequently, the seizure by police violated s. 8 of the Charter .
13 To determine whether the evidence should be excluded, Aquila Prov. Ct. J. followed the test established in Collins. He found that the evidence was real and non-conscriptive. However, he concluded that the violation was serious and not merely technical. The trial judge expressed concern at the casual approach that the police took in infringing the appellant’s rights. He felt that exclusion was necessary to discourage similar police conduct in the future. Aquila Prov. Ct. J. granted the motion to exclude the evidence, and, as the parties agreed that the outcome of the case rested entirely on the admissibility of the drugs, the appellant was acquitted.
B. Court of Appeal of Manitoba (2001), 156 Man. R. (2d) 111, 2001 MBCA 70
14 In a brief judgment, Huband J.A. for the Manitoba Court of Appeal allowed the Crown’s appeal and entered a conviction. The Court of Appeal was satisfied that the initial search by the security guards did not violate s. 8 because they were privately employed and, therefore, were not subject to the Charter . The court found that when the police opened the locker and seized the marijuana, there was merely a “transfer of control” from the security guards to the police. The court reasoned that had the security guards placed the marijuana into a corner cupboard or into a different locker, there would have been no question that the transfer of the marijuana would not have constituted a search and seizure by the police. Placing the marijuana back into the same locker on a temporary basis, but still under the control of the security guards, leads to the same conclusion. As there was no search or seizure conducted by agents of the state, there was no violation of s. 8 .
III. Relevant Statutory Provisions
15 Canadian Charter of Rights and Freedoms
8. Everyone has the right to be secure against unreasonable search or seizure.
24. . . .
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
Private Investigators and Security Guards Act, R.S.M. 1987, c. P132
1 In this Act
“security guard” means a person who, for hire or reward, guards or patrols for the purpose of protecting persons or property.
35 No person holding a licence under this Act shall hold himself out in any manner as performing or providing services or duties connected with the police.
IV. Issues
16 This appeal raises four issues:
(1) Whether the appellant had a reasonable expectation of privacy with respect to the locker;
(2) Whether the Charter applies to the security guards and if so, whether the original search of locker 135 was contrary to s. 8 of the Charter ;
(3) Whether the subsequent warrantless search and seizure by the police was contrary to s. 8 of the Charter ; and
(4) If there was an unreasonable search or seizure, whether the relevant evidence should be excluded under s. 24(2) of the Charter .
17 I have come to the conclusion that the trial judge correctly applied the law to the facts of the case at bar and that the Court of Appeal erred in finding that there was no search and seizure by the police. The appellant had a reasonable expectation of privacy in the contents of the locker he rented at the Winnipeg bus depot. The initial search by the security guards did not trigger the application of the Charter because the security guards were not acting as agents of the state. However, the police were required to obtain a warrant to search the appellant’s locker. This warrantless search and seizure, not otherwise justified, violated the rights of the appellant under s. 8 of the Charter . I conclude that this Court should not interfere with the trial judge’s decision to exclude the evidence under s. 24(2) . The trial judge made no unreasonable findings of fact or legal error and I see no reason for intervening with his conclusion.
V. Analysis
A. The Appellant’s Expectation of Privacy With Respect to Locker 135
18 Section 8 of the Charter protects the right to be secure against unreasonable search and seizure. To establish an infringement of s. 8 , the person raising the claim must first establish that he or she had a reasonable expectation of privacy in the thing searched or seized (Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 159; Edwards, at para. 30). Reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances (see, for example, Edwards, at para. 31, and R. v. Wong, [1990] 3 S.C.R. 36, at p. 62). The factors to be considered in assessing the totality of the circumstances include, but are not restricted to, the accused’s 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, ability to regulate access, existence of a subjective expectation of privacy, and the objective reasonableness of the expectation (Edwards, at para. 45).
19 In this case, the question, “framed in broad and neutral terms” (Wong, supra, at p. 50), is whether in a society such as ours persons who store and lock belongings in a bus depot locker have a reasonable expectation of privacy.
20 In my opinion, the protections of s. 8 extend to the objects that a person stores and locks in a bus depot locker. I agree with Aquila Prov. Ct. J. that the appellant had a reasonable expectation of privacy in locker 135. As the trial judge put it, at para. 32:
I am satisfied that Mr. Buhay had a personal and reasonable expectation of privacy in the content of the locker. He had a contractual obligation for a period of 24 hours for the exclusive use of that locker, which had not expired. Unless a dangerous substance was being stored, or a substance emitting obnoxious fumes was contained in the locker, neither the managers nor police had a right to enter. . . .
21 The appellant had control and possession of the locker’s contents through possession of the key. Although he did not own the locker, and although it remained the property of the bus companies, the appellant did pay the required fee to rent the locker for his exclusive use for a particular period of time. Through the use of a key, the appellant had ability to regulate access to the locker for the rental period. Moreover, the signs on the lockers made no mention of the possibility that they might be opened and searched. The key holder would, in my view, have a subjective expectation of privacy and this expectation is objectively reasonable. Indeed, generally, the purpose for renting a locker in such a location is to secure one’s belongings against theft, damage, or even the simple curiosity of others. A reasonable person would expect that his or her private belongings, when secured in a locker that he or she has paid money to rent, will be left alone, unless the contents appeared to pose a threat to the security of the bus depot. The same conclusion was reached in R. v. Dinh (2001), 42 C.R. (5th) 318, 2001 ABPC 48.
22 The respondent argues that the appellant had a low expectation of privacy because the bus companies owned the lockers and had a master key so they “could access the lockers at any time”. True as this may be, it does not remove the reasonable expectation of privacy. A reasonable expectation of privacy is contextual. The expectation does not have to be of the highest form of privacy to trigger the protection of s. 8 . For example, someone who rents a hotel room does not own the room, and very likely understands that hotel management has a master key. A reasonable understanding is that hotel staff will access the room, but for limited purposes. There is therefore a reasonable expectation of some privacy in the room, which can be enhanced by the display of a sign requesting privacy.
23 The issue was addressed by the Court of Appeal for Ontario in R. v. Mercer (1992), 70 C.C.C. (3d) 180, where the court held at p. 186: “. . . I am not persuaded that hotel guests’ awareness that cleaning staff will enter their rooms at least daily removes the reasonable expectation of privacy” and further:
Privacy would be inadequately protected if the reasonableness of a given expectation of privacy in one’s office or hotel room could be displaced by an awareness of the possibility that cleaning staff may rummage through anything that is not locked away.
Although hotel rooms and bus lockers are not entirely analogous, I believe that the existence of a master key does not in itself destroy the expectation of privacy. If such were the case, there would be no expectation of privacy in an apartment building, office complex or university residence, for instance. Unless an emergency or other exigent circumstances arise, locker renters may reasonably expect that their lockers are free from unauthorized search by bus terminal security agents or by the police.
24 As recently stated in R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10, this Court has adopted a liberal approach to the protection of privacy. Bastarache J. stressed at para. 16 that this protection extends not only to homes and personal items, but to information which we choose to keep confidential — particularly that which is kept under lock and key. The same applies to personal items which we choose to keep safe from the interference of others by storing and locking them in a space rented for that purpose. While it was not as high as the privacy afforded to one’s own body, home, or office, a reasonable expectation of privacy existed in locker 135 sufficient to engage the appellant’s s. 8 Charter rights. We must now turn to whether the initial search by the security guards constituted a violation of s. 8 of the Charter .
B. Were the Security Guards State Agents During the Initial Search of Locker 135?
25 Section 32 of the Charter provides that its provisions apply to the Parliament and government of Canada, and to the legislature and government of the provinces. Accordingly, the initial search of the appellant’s locker by the security guards can only come under s. 8 scrutiny if the guards can be categorized either as “part of government” or as performing a specific government function (Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624), or if they can be considered state agents (R. v. Broyles, [1991] 3 S.C.R. 595; M. (M.R.), supra). For this latter determination, it is important to focus on the relationship between the state (the police) and the private entity (the security guards). The test was enunciated in the context of police informers by Iacobucci J., writing for the Court, in Broyles, at p. 608:
A relationship between the informer and the authorities which develops after the statement is made, or which in no way affects the exchange between the informer and the accused, will not make the informer a state agent for the purposes of the exchange in question. Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of the exchange. I would accordingly adopt the following simple test: would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?
26 In M. (M.R.), supra, at para. 29, the Court applied that test in the context of a search of a student by a school official. Cory J., for the majority, held at para. 28 that “[t]he mere fact that there was cooperation between the vice‑principal and the police and that an officer was present during the search is not sufficient to indicate that the vice‑principal was acting as an agent of the police. . . . There is no evidence of an agreement or of police instructions to Mr. Cadue that could create an agency relationship.”
27 In the present case, both the Court of Appeal and Aquila Prov. Ct. J. held that there was no Charter violation since the security guards were private actors and were not agents of the state. I agree.
28 Nothing in the evidence allows a conclusion that the security guards or the agency by which they were employed can be assimilated to the government itself, nor can their activities be ascribed to those of the government. Private security guards are neither government agents nor employees, and apart from a loose framework of statutory regulation, they are not subject to government control. Their work may overlap with the government’s interest in preventing and investigating crime, but it cannot be said that the security guards were acting as delegates of the government carrying out its policies or programs. Even if one concedes that the protection of the public is a public purpose which is the responsibility of the state, this is not sufficient to qualify the functions of the security guards as governmental in nature. To this effect, this Court, in Eldridge, supra, held, at para. 43:
. . . the mere fact that an entity performs what may loosely be termed a “public function”, or the fact that a particular activity may be described as “public” in nature, will not be sufficient to bring it within the purview of “government” for the purposes of s. 32 of the Charter .
. . .
In order for the Charter to apply to a private entity, it must be found to be implementing a specific governmental policy or program. As I stated further on in McKinney, at p. 269, “[a] public purpose test is simply inadequate” and “is simply not the test mandated by s. 32 ”. [Emphasis in original.]
29 The security guards cannot either be considered state agents. Based on the test set out in Broyles, supra, and M. (M.R.), supra, the proper question is whether the security guards would have searched the contents of locker 135 but for the intervention of the police. On the facts here, it is clear that the security guards acted totally independently of the police in their initial search. In M. (M.R.), the involvement of the police was even greater than in the case at bar, since the police had been contacted prior to the search and were present during the search. In the present case, the relationship between the police and the security guards developed after the security guards searched the appellant’s locker. The guards started an investigation on their own initiative, without any instructions or directions from the police. While the incident report forms used by the security guards contain spaces for police incident numbers and badge numbers, I agree with the Crown that this only reflects a general policy of the security company to cooperate with the police. It is only normal, considering their functions, that security guards may be called upon to contact the police on a regular basis. That does not put them in a “standing” agency relationship with the police. This is confirmed by the Private Investigators and Security Guards Act, R.S.M. 1987, c. P132, which regulates the security guards’ activities in Manitoba. Indeed, s. 35 expressly provides that security guards should not hold themselves out in any manner as performing or providing services or duties connected with the police.
30 Volunteer participation in the detection of crime by private actors, or general encouragements by the police authorities to citizens to participate in the detection of crime, will not usually be sufficient direction by the police to trigger the application of the Charter . Rather, the intervention of the police must be specific to the case being investigated (see, on the specific issue of whether security guards were acting as agents of the state: Fitch, supra; R. v. Caucci (1995), 43 C.R. (4th) 403 (Que. C.A.)). In the case at bar, there is nothing in the evidence which supports the view that the police instructed the security guards to search locker 135 and therefore the security guards cannot be considered state agents.
31 While there has been a growing use of private security in Canada and while private security officers arrest, detain and search individuals on a regular basis, “[t]he exclusion of private activity from the Charter was not a result of happenstance. It was a deliberate choice which must be respected” (McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at p. 262). It may be that if the state were to abandon in whole or in part an essential public function to the private sector, even without an express delegation, the private activity could be assimilated to that of a state actor for Charter purposes. This is not the case here. As for whether private security guards are “agents of the state”, the test in Broyles, supra, invites a case-by-case analysis which focusses on the actions which have given rise to the alleged Charter breach by the security guards and the relationship between them and the state. In any event, it should be noted that where no state actors are involved, other remedies than those under the Charter may be available for exclusion of the impugned evidence, as we will see below. In this case, the trial judge correctly focussed his analysis on the search conducted by the police, to which I now turn.
C. Was the Search of Locker 135 by the Police Contrary to Section 8 of the Charter ?
32 We must now determine whether the search of the locker by the police was a reasonable search within the meaning of s. 8 (Edwards, supra, at para. 45). “A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable”: Collins, supra, at p. 278. The search of the locker was a warrantless search. Such searches are prima facie unreasonable, and the onus rests on the Crown to demonstrate on a balance of probabilities that the search was reasonable.
33 The Court of Appeal concluded, at para. 11, that the marijuana had been obtained by the police following a simple transfer of control from the security guards, which did not constitute a search and seizure by the police:
It was only after the marihuana was discovered and under the control of the security guards that the police were called in. When the police attended, the locker was reopened and the marihuana taken into police custody. But the reality is that this was a mere transfer of control from the security guards to the police. Had the security guards placed the marihuana into a corner cupboard or into a different locker, there would be no question but that the transfer of the marihuana would not have constituted a search and seizure by the police. Placing the marihuana back into the same locker on a temporary basis, but still under the control of the security guards, leads to the same conclusion.
With respect, I disagree. The appellant initially had a reasonable expectation of privacy regarding the contents of his locker. His privacy was invaded by the security guards. The guards then placed his belongings back in the locker. The appellant’s reasonable expectation of privacy was continuous. Just because the security guards violated his privacy once does not mean that any subsequent violations will be permissible. The conduct of the police — opening of a locked locker over which the appellant still had lawful control and taking possession of its contents — constituted a “search” within the meaning of s. 8 as well as a “seizure”, the essence of which is the “taking of a thing from a person by a public authority without that person’s consent”: R. v. Dyment, [1988] 2 S.C.R. 417, at p. 431, per La Forest J.
34 This Court has held that in certain circumstances, the mere “transfer of control” of evidence from a private citizen to police can constitute a seizure within the meaning of s. 8 . In Dyment, supra, La Forest J. said, at p. 435:
If I were to draw the line between a seizure and a mere finding of evidence, I would draw it logically and purposefully at the point at which it can reasonably be said that the individual had ceased to have a privacy interest in the subject-matter allegedly seized.
In this case, it cannot reasonably be said that the appellant had ceased to have a privacy interest in the contents of his locker. The subsequent conduct of the police should be considered a seizure within the meaning of s. 8 . I see no basis for holding that a person’s reasonable expectation of privacy as to the contents of a rented and locked bus depot locker is destroyed merely because a private individual (such as a security guard) invades that privacy by investigating the contents of the locker. The intervention of the security guards does not relieve the police from the Hunter requirement of prior judicial authorization before seizing contraband uncovered by security guards. To conclude otherwise would amount to a “circumvention of the warrant requirement” (Law, supra, at para. 23). The security guards’ search of the locker, which is not subject to the Charter , cannot exempt the police from the stringent prerequisites that come into play when the state wishes to intrude the appellant’s privacy (R. v. Colarusso, [1994] 1 S.C.R. 20, at p. 64; Law, at para. 23).
35 I agree with the trial judge that the presumption that the warrantless search was unreasonable has not been rebutted by the Crown. There were no exigent circumstances, that is no immediate danger of the loss, removal, destruction, or disappearance of evidence if the search and seizure was delayed (R. v. Grant, [1993] 3 S.C.R. 223, at p. 243). The Crown cannot rely on any statutory or common law authority to show that the search was “authorized by law”. Therefore, the requirements of Collins have not been satisfied.
36 The reasons for the police officers proceeding as they did are not relevant at this stage. Whether they believed that a warrant was not required, or would not likely be obtained, would not affect the legality of the search. These issues will be addressed in the s. 24(2) analysis (see Mercer, at p. 189). Evidently, the fact that there may not have been sufficient grounds to obtain a search warrant does not justify a warrantless search. Quite the opposite. It confirms that the invasion of privacy is not permissible. In such a case, “the avenues open to law enforcement authorities are to continue to investigate by methods less intrusive than a search and to seek to obtain a search warrant should the proper grounds upon which to do so materialize”: Mercer,