|
Charter - Section 8 - Search and Seizure - Standing. R. v. Griggs
In R. v. Griggs (Ont CA, 2026) the Ontario Court of Appeal allowed criminal appeals, these brought against convictions for "possession of drugs for the purpose of trafficking and possession of the proceeds of crime".
Here the courts considers the standing of the defendants to raise Charter s.8 ['search and seizure'] applications to exclude search warrant evidence:[29] The point of departure is the Supreme Court’s decision in Jones. In that case the standing issue was whether the appellant had a reasonable expectation of privacy in text messages that he was alleged to have authored and sent. Côté J.[9] noted that a relatively modest evidentiary foundation is required to establish a subjective expectation of privacy, which can be presumed or inferred in the circumstances absent a claimant’s testimony or admission at the voir dire: at paras. 19, 21. She concluded that “counsel for a s. 8 applicant may ask the court to assume as true for s. 8 purposes any fact that the Crown has alleged or will allege in the prosecution against him”: at para. 32. It is not necessary for the accused to “tender additional evidence probative of those facts in order to make out those same elements”: Jones, at para. 32. This is an exception to the rule that a Charter applicant bears the burden of persuading the court that his rights or freedoms have been infringed or denied: Jones, at para. 33.
[30] Jones was discussed and explained by this court in R. v. Labelle, 2019 ONCA 557, 379 C.C.C. (3d) 270. Harvison Young J.A. identified as the “overriding point of Jones” that “an accused should not be placed in the position of being forced to compromise his or her substantive defence to criminal charges in order [to] assert standing to challenge the reasonableness of a search”: at para. 24, referring to Jones, at para. 26. She also observed that the Jones approach does not create automatic standing in territorial privacy cases: “The point of Jones is that the accused can rely on the Crown theory to establish certain facts relevant to their s. 8 claim”, and “[t]he trial judge is still required to assess those facts in the ‘totality of the circumstances’ to determine whether the accused had a reasonable expectation of privacy in a particular territorial space”: at para. 31.
[31] I will begin my analysis of this ground of appeal by identifying the Crown’s theory for the purpose of the appellants’ standing argument. I will then turn to the trial judge’s errors in dealing with the standing issue. There was some confusion in the trial judge’s description of the defence arguments on the standing issue that may well have informed his analysis. As I will explain, the trial judge erred when he failed to give proper effect to the Crown’s theory of the prosecution of the appellants, and instead, focusing on the Crown’s “privileged guest” theory, he concluded that the appellants had not provided sufficient evidence to establish standing. In this case, considering the “totality of the circumstances”, the appellants should have been granted standing.
i. The Crown’s theory relied on by the appellants in support of standing
[32] In this case, the appellants did not put forward their own evidence on the voir dire but relied on the Crown’s theory as disclosed in the ITO and the charges against them. They also relied on the Crown disclosure of the photographs of the items that were seized at the two addresses and their presence at White Oak when the search took place: the fact that Mr. Bennett was asleep in the small bedroom, and that Mr. Griggs was walking out of the principal bedroom as the police entered.
[33] Although the Crown is correct that statements in an ITO are not necessarily indicative of the Crown’s theory, in this case there is no question that they were.[10] The ITO was used in support of the warrants for White Oak, Wilkerson and the vehicles alleged to have been driven by the appellants, with the targets of the investigation being “Black Kevin” (Mr. Bennett) and Mr. Griggs.
[34] The ITO stated that, based on confidential informant information since January 2019, the appellants were selling drugs in the Niagara Region. The ITO set out details of police surveillance and cell phone tracking data in respect of the appellants’ activities. With respect to White Oak and Wilkerson, the affiant asserted that White Oak was used as a stash for drugs, cash and drug paraphernalia; that, based on the fact that the appellants were seen at either White Oak or Wilkerson before conducting drug transactions, they kept their drug supply within these houses; that “Black Kevin” (Mr. Bennett) kept his drugs, drug paraphernalia and other items on his person, at White Oak or Wilkerson or in his vehicle; that Mr. Griggs, who resided in Wasaga Beach, attended the Niagara Region to traffic drugs, while staying at White Oak; that Mr. Griggs kept his drugs, drug paraphernalia and other items to be sought on his person, at White Oak or in his vehicle; and that “Black Kevin” (Mr. Bennett) was observed frequenting and staying at Wilkerson and White Oak, and seemed to be at White Oak at the same time as Mr. Griggs, based on the presence of Mr. Griggs’s vehicle and mobile tracking data.
[35] It is clear from the ITO that the affiant was asserting that the appellants were jointly involved in a drug-trafficking enterprise, that they kept their drugs at White Oak and Wilkerson and that White Oak was used as a part-time residence by Mr. Griggs. These essential facts, together with the surveillance on the appellants provided the basis for the affiant’s belief that drugs would be found in the locations to be searched to support the charge that the appellants committed the offence of possession of drugs for the purpose of trafficking.
[36] The court may also infer the Crown theory from the nature of the charges themselves: Jones, at para. 32. Here, the appellants were charged with possession for the purpose of trafficking with respect to all of the drugs and money found at White Oak, where they were arrested, and Mr. Bennett was also charged in relation to the drugs and money found at Wilkerson, although he was not present when this location was searched.
[37] As Côté J. stated in Jones, “an accused mounting a s. 8 claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts in the voir dire”: at para. 9. The facts alleged or to be alleged here in relation to White Oak were not only that this location, together with Wilkerson, was used by the appellants, who were operating a drug trafficking enterprise in the Niagara Region, as a stash house, but also that, by virtue of these facts and the appellants’ observed connections to the properties, they were in possession of the drugs and money seized. This was the Crown theory relied on by the appellants on the issue of standing at first instance and on appeal.
ii. The standing analysis where the Crown’s theory was relied upon
[38] In my view, the trial judge misapprehended the defence arguments with respect to the relevance of the Crown’s theory to the standing issue. At para. 17, he said that Mr. Bennett’s trial counsel had argued that “the Crown’s assertion that the [appellants] had possession of the drugs means that the Crown cannot dispute [their] standing to challenge any search ... [which] amounts to an assertion that being charged with a possession offence automatically conveys standing, which is clearly not the law.” Mr. Bennett’s counsel did not argue that there would be automatic standing whenever the Crown asserted an accused’s possession of drugs, but accurately summarized and invoked the principles in Jones to rely on the Crown’s theory in relation to the prosecution. And, at para. 48 of his reasons, the trial judge observed that “the implicit or explicit assertion in informations to obtain or disclosure that a person is using a place as a stash house is not the same as the Crown asserting or being taken to concede that that person lives in that house ... owns that house, has control of that place, has a reasonable expectation of privacy in that place, etc.” Here, the trial judge seems to have confused the defence reliance on the Crown’s theory in the prosecution with the Crown’s theory with respect to standing.
[39] The trial judge’s confusion may have resulted from the way the issue was articulated by the trial Crown, who repeatedly referred to the “Crown’s theory” in relation to the Crown’s theory of the issue of standing, and not in relation to the theory of the prosecution. The Crown’s theory on the standing issue was that the appellants were no more than “privileged guests” of White Oak and that there was no evidence as to their control of this location. The Crown’s theory with respect to the prosecution in relation to the drugs at White Oak, however, was that the appellants’ use of this address as a stash house in their drug trafficking operation meant that they had possession of the drugs at this address. The very point of Jones is that the appellants could rely on the facts that the Crown would allege in the prosecution.
[40] The trial judge concluded there was no evidence that would allow the court to infer the appellants had control of the properties, relationships with the properties’ lessees, historical use of the properties, the ability to regulate access to the properties, or any other basis on which to assert privacy. I agree with the appellants that in arriving at this conclusion, the trial judge applied the Edwards factors in the context of the Crown’s “privileged guest” theory, failing to give effect to the Crown’s theory with respect to the prosecution, particularly in relation to the question of their control of White Oak.
[41] The trial judge stated, erroneously, that the record was “effectively silent” regarding the appellants’ control of the property, and that he had “no basis upon which to quantify [the appellants’] connection or control of the property other than a slim number of examples of their mere presence there.” However, the appellants’ connection to and use of White Oak, and by inference their control of this location, were evident in the Crown’s theory.
[42] In Labelle, Harvison Young J.A. emphasized the need to determine standing based on the “totality of the circumstances”: at para. 31. In that case, the Crown’s theory that the apartment that was searched was the appellant’s apartment (which in turn would establish his reasonable expectation of privacy) conflicted with the evidence of the appellant’s girlfriend at the voir dire, denying the appellant had ever lived there. The trial judge had erred in failing to consider the Crown’s theory together with the other (contradictory) evidence. The appeal was allowed, with the issue of standing to be determined based on the correct principles, including those from Jones.
[43] In the present case, the trial judge, referring to Labelle, correctly observed that where an accused relies on the Crown theory, the trial judge must still assess the facts in the “totality of the circumstances” to determine standing. However, in considering the totality of the circumstances and applying the factors from Edwards, the trial judge focused on the lack of evidence that the appellants had keys to the properties on the date of the arrest, that they owned or leased the properties, that they had a relationship with the lessees, or of their long history of use of either property, thereby failing to give proper effect to the Crown’s theory of the prosecution. Likewise, the trial judge’s concerns about the relatively short period of surveillance of the appellants were not particularly relevant. The appellants’ control of White Oak was tied to their use of this location in their drug trafficking enterprise as a stash house for their drugs.
[44] In Jones, the accused did not call evidence on the voir dire but sought to rely on the Crown’s theory that he was the author of inculpatory text messages on a phone registered in his spouse’s name: at paras. 3-6. In Labelle, Harvison Young J.A. confirmed that Jones applies, whether or not the accused calls evidence on the voir dire and even where such evidence would negate standing: at paras. 26-27. In that case, the trial judge erred by not allowing the appellant to rely on the Crown theory that it was his apartment where the firearms were found because his girlfriend under cross-examination on the voir dire denied the appellant was living at the apartment: at paras. 5-7, 32.
[45] More recently, in R. v. Mohamed, 2024 ONCA 691, 442 C.C.C. (3d) 248, this court rejected the argument on appeal that the trial judge had erred in failing to give effect to the Crown’s theory articulated in an ITO that he was in possession of cocaine located in a house owned by his co-accused with whom he was in a long-time common law relationship. After the co-accused testified at the voir dire denying the common law relationship and asserting that the appellant was only a “privileged guest”, at the request of the Crown, the words “long-time” and “common law” were redacted from the ITO: at paras. 13-15. This court held that in seeking standing, the appellant and his co-accused had not relied on the Crown’s theory; rather, they challenged it: at para. 25. Accordingly, the trial judge, after considering all the circumstances, had not erred in rejecting the appellants’ claim to a reasonable expectation of privacy: at para. 26.
[46] In this case, unlike other cases respecting searches of residential properties where the issue was whether the accused was a privileged guest or the primary occupant, there was no question that the addresses were stash houses. They were sparsely furnished, and even if Ms. Brennan’s sister held the lease to White Oak, there was nothing to suggest that it was her residence.
[47] And, unlike the accused in Mohamed and Labelle, the appellants did not call evidence on the voir dire. As such, the Crown’s theory with respect to the prosecution – that the appellants had possession and control of the contents of the two properties because they were being used by them as stash houses in their drug operation – stood uncontradicted, at least on the Charter motion. Moreover, the other evidence, including the observations referred to in the ITO of the appellants attending at White Oak and Wilkerson before conducting alleged drug transactions, the fact that the two locations were sparsely furnished, the appellants’ presence at White Oak when the search was executed, and the items seized that connected the appellants to that location, was consistent with, and did not contradict, the Crown’s theory. The “totality of the circumstances” in this case supported the appellants’ claim to a reasonable expectation of privacy based on their use of and control over White Oak in their drug trafficking operations.
[48] Returning to the trial judge’s analysis, in my view he erred when, at para. 48 of his reasons, he stated that it was important in analyzing standing “not to overstate the impact of the Crown’s theory on the standing issue.” Consistent with Jones, he should have “assume[d] as true for s. 8 purposes any fact that the Crown [had] alleged or [would] allege in the prosecution against [the appellants].” Instead, based on his assessment of the surveillance evidence set out in the ITO, the trial judge discounted the affiant’s statements that the appellants had been seen frequenting and staying at both houses and conducting drug deals with continual use of the addresses. The trial judge then faulted the appellants for not meeting their evidentiary burden.
[49] The trial judge ought to have accepted the Crown’s theory as evident in the charges and the sworn statements in the ITO, and then weighed that theory together with the other evidence that was before him. The other evidence was consistent with the Crown’s theory and, in particular, specific assertions made in the ITO: that White Oak and Wilkerson were being used by the appellants as stash houses in their drug trafficking activities, and that Mr. Griggs was staying at White Oak when he trafficked drugs in the Niagara Region. The use of the addresses as stash houses was apparent. Both houses contained significant amounts of cash and valuable drugs and items associated with the appellants who were present at White Oak when that address was searched. Had the trial judge properly considered the “totality of the circumstances”, he would necessarily have concluded that the appellants had a reasonable expectation of privacy in both White Oak and Wilkerson sufficient for standing to challenge the warrants.
[50] Accordingly, I would give effect to this ground of appeal.
|
