R. v. Ritter, 2006 ABPC 162 (CanLII)
[4] The right to challenge the legality of a search depends upon whether the accused has a reasonable expectation of privacy in the place searched or the property seized. Therefore the first issue to be decided by the court is the issue of standing – does the accused have standing to make a Charter challenge in that his personal rights to privacy have been violated, because the privacy rights allegedly infringed must be that of the accused person who makes the challenge.
[6] At para 10 of Fankhanel, Justice Veit said the following,
“I have been unable to find any authority dealing with onus where the Crown challenges standing to contest a search warrant. It may be that, because there is no automatic standing in these applications, the person who challenges the search warrant bears the burden of proving, as a preliminary point, that he has standing to do so. However, for the benefit of each of the accused in this case, I am prepared to deal with this application on the basis that, because the Crown is contesting the right of each of the accused to raise a Charter challenge, the Crown has the onus of satisfying the court, on a balance of probabilities, that the Court should not hear each of the accused on this issue: R. v. Pugliese 1992 CanLII 2781 (ON CA), (1992) 71 C.C.C. (3d) 295 (Ont. C.A.); Fleming v. The Queen 1986 CanLII 63 (SCC), (1986) 25 C.C.C. (3d) 297 (S.C.C.).”
[7] I have read both those authorities and do not find they are authority for the proposition stated. In fact Pugliese supports the Crown contention that the onus is on the accused to establish standing. Fleming deals with a sec. 10 of the old Narcotic Control Act restoration hearing which involves the presumption of innocence so the burden is on the Crown to establish the applicant is disentitled. I find no support for the proposition in Fankhanel that because the Crown contests the accused’s standing to raise a Charter issue that the onus shifts to the Crown to establish he does not have standing.
[8] In R v. Campbell (supra) it was stated at para. 15, the burden of proof in establishing an infringement or denial of the applicant’s Charter rights is upon the applicant. It cites the authority for this proposition as R v. Collins 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 (S.C.C.) and R v. Edwards (supra). I have reviewed both of these authorities. In Collins the Supreme Court stated the applicant must show on a balance of probabilities that a Charter right has been denied or infringed. Where the right involves unreasonable search and the applicant establishes the search was conducted without a warrant, the burden shifts to the Crown to establish the search was reasonable. Nowhere does the case deal with the onus to establish standing. However in Edwards the Supreme Court stated at para. 45, the right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated. 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 reasonably.
[9] The court in Edwards quoted extensively with apparent approval from the Ontario Court of Appeal case R v. Pugliese (supra) which stated at pg. 302,
“...this discussion about the appellant’s legal or proprietary rights in the premises or in the articles seized is beside the point. The true test of a protected constitutional right under sec. 8 of the Charter is whether there is a reasonable expectation of privacy.”
“...the appellant must assert a personal privacy right whatever be the foundation of his assertion. And, since this reasonable expectation of privacy is a Charter protected right, the burden of providing an evidentiary basis for any violation rests with the appellant.”
“...There is nothing in the record that supports any suggestion that the appellant has a reasonable expectation of privacy in McInnis’s apartment or in any portion of it where the drugs and drug paraphernalia were seized. The appellant is thus unable to show that he had a constitutionally protected right.”
[10] The court went on to draw from cases of the United States Supreme Court as did the court in Edwards and quoted Rehnquist J. for the majority in Rawlings v. Kentucky 448 U.S. 98, 100 S. Ct. 2556 (1980) who again stated that the defendant bore the burden of proving not only that the search of the women’s purse was illegal, but also that he had a legitimate expectation of privacy in the purse, in a Fourth Amendment challenge for unreasonable search and seizure.
[11] Clearly then , the onus is on the accused. The determination of this onus is important because if the accused has not presented any evidence of a personal right to privacy in the storage shed where the search took place or in the computer that was seized, to satisfy the court on a balance of probabilities, as opposed to the Crown negativing a personal right to privacy, then he cannot go on to challenge the validity of the search as being illegal or unreasonable.
[12] As Campbell said at para. 17-19:
“17 In R. v. Edwards 1996 CanLII 255 (SCC), (1996), 104 C.C.C. (3d) 136 (S.C.C.), the Supreme Court adopted the long standing position of the American Supreme Court and held that determination of a party’s ability to launch a Charter violation must be conducted in two parts. The Court held that a section 8 analysis requires two distinct inquiries:
I) Did the impugned state conduct interfere with the reasonable expectation of privacy of the Applicant?
ii) If so, was that interference unreasonable?
18 The onus is on the applicant to demonstrate that his own individual reasonable expectation of privacy is at stake. If he cannot, there is no need to proceed further. If the applicant can demonstrate a reasonable expectation of privacy, he must then show that the search was an unreasonable interference with that expectation of privacy.
19 The Supreme Court emphasized that the first question that must be answered in any allegation involving a s. 8 breach, is whether a personal right of the applicant is engaged. It is important to stress that it is only when this first question is resolved that it is necessary to move to the next and distinct question of whether a violation of this right has occurred.”
[13] The principles of a sec. 8 inquiry were set out in Edwards by the Supreme Court at para. 45:
“45 A review of the recent decisions of this Court and those of 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. Aclaim (sic) for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. See R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at p. 619.
2. Like all Charter rights, s. 8 is a personal right. It protects people and not places. See Hunter v. Southam Inc., supra..
3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated. SeePugliese, supra.
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. See Rawlings, supra.
5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, at p. 54, andWong, supra at p. 62.
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.
See United States v. Gomez, 16 F. 3d 254 (8th Cir. 1994), at p. 256.
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.
[14] In dealing with the first issue of standing, has the accused established a personal expectation of privacy, it must be broken down into two parts; first has it been established in relation to the place searched, i.e. the storage unit; second has it been established in relation to the thing seized, i.e. the computer. Establishing a personal privacy interest in either will be sufficient to allow a challenge of the validity, legality and reasonableness of the search and seizure
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