No privacy interest, no search

Mike Novakowski
April 05, 2015
By Mike Novakowski
A passenger did not demonstrate his privacy interest in a vehicle so there was no "search" and a gun found under the seat was admissible, Ontario's highest court has ruled. In R. v. Steele, 2015 ONCA 169 a police officer stopped a vehicle at 2 AM to check for proper documentation and driver sobriety. Although she could see a driver, the officer could not tell the driver's gender or skin colour, nor could she see whether there were any passengers. While approaching the driver's door she noticed there were four black men in the car, including the accused seated in the front passenger seat. She called for back up and three other officers arrived and stood at each of the vehicle's other doors. When asked, the driver produced the ownership papers and several expired insurance pink slips but not his driver's licence. He said the car belonged to his friend's mother.

A passenger did not demonstrate his privacy interest in a vehicle so there was no "search" and a gun found under the seat was admissible, Ontario's highest court has ruled.

In R. v. Steele, 2015 ONCA 169 a police officer stopped a vehicle at 2 AM to check for proper documentation and driver sobriety. Although she could see a driver, the officer could not tell the driver's gender or skin colour, nor could she see whether there were any passengers.

While approaching the driver's door she noticed there were four black men in the car, including the accused seated in the front passenger seat. She called for back up and three other officers arrived and stood at each of the vehicle's other doors. When asked, the driver produced the ownership papers and several expired insurance pink slips but not his driver's licence. He said the car belonged to his friend's mother.

Although co-operative and making efforts to find proof of insurance, he appeared nervous. Steele, sitting in the front passenger seat, also seemed nervous and had been hunched over with his hands underneath his seat, as if trying to hide something. The officer asked the driver if he would like her to help find the valid insurance slip and he agreed.

The other occupants were asked to get out of the car while the driver remained. The officer went to the front passenger side of the car, knelt on the ground and looked inside the glove box for the insurance slip, without success. As she rose to leave, she saw part of the butt and barrel of a gun in plain view on the floor partially under the front passenger seat. The gun was loaded and a prohibited semi-automatic.

In the Ontario Superior Court of Justice it was agreed that Steele's mother owned the car and had lent it that day to the driver and Steele. The judge concluded that the initial stop was authorized under Ontario's Highway Traffic Act, which permits random stops to check driver and vehicle documentation and driver sobriety. He also found this legal authority gave police officers the power to search the vehicle for proof of insurance and that Steele had no standing to challenge the driver's consent to the search.

Furthermore, there was no evidence of racial bias or racial profiling as alleged. The officer could not see the race or gender of the driver, nor any other occupants, when she saw the car. She only determined the number of occupants and their race after she stopped it. As well, when she went to the front passenger side and looked into the glove box, she was "intent on finding that valid insurance slip."

Finally, even if there had been a Charter violation, the evidence was admissible under s. 24(2). The judge found that Steele knew the gun was there, tried to hide it from police and exerted a measure of control over it. He was convicted of possessing a loaded, prohibited, semi-automatic firearm.

Steele challenged his convictions to the Ontario Court of Appeal arguing, in part, that the gun was found during an unreasonable search because it was not authorized by law, the driver's apparent consent was insufficient and the police stop and subsequent search was partially motivated by racial bias. Thus, the gun should have been excluded as evidence under s. 24(2).

Reasonable expectation of privacy

A person's reasonable expectation of privacy depends on the totality of the circumstances, including 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, including the right to admit or exclude others from the place; the existence of a subjective expectation of privacy; and the objective reasonableness of the expectation. The court held that Steele lacked a reasonable expectation of privacy in the car:

In the circumstances of the present case, the [accused] did not have a reasonable expectation of privacy in the car. The [accused] was a passenger in the vehicle at the time of the search, and he was authorized by his mother, at the very least, to be a passenger in the vehicle. However, the [accused's] degree of possession or control, historical use or ability to regulate access to the vehicle is unknown.

In general, it would be objectively reasonable for an individual using a family member's car to have a reasonable expectation of privacy in that vehicle. Here though, the [accused] did not identify himself as a person to whom the car had been loaned, and he did not indicate his connection to the vehicle's owner. He was only a passenger in a vehicle driven by another person who claimed to have borrowed the car.

Further, the police had no reason to believe that the [accused] had any connection to the vehicle other than as a passenger. Moreover, the driver was attempting to produce required documentation to police, and had apparent control of the vehicle. Under these circumstances, there is no basis for a person in the [accused's] position to have subjectively expected privacy in the vehicle [paras. 19-20].

Since Steele had no reasonable expectation of privacy, there was no Charter "search" and therefore no s. 8 breach. It was unnecessary to address the issue of consent to search or to determine whether police conduct was reasonable. The court did note, however, that there was no Ontario statutory authority permitting a search of the vehicle for proof of insurance.

"Some provinces explicitly authorize the search of a vehicle where an officer has reasonable grounds to believe that the vehicle is being operated in violation of regulatory requirements," said Justice Pardu, speaking for the court. "However, neither the Highway Traffic Act nor the Compulsory Automobile Insurance Act... contains any such provision that is applicable in this case."

Racial bias

Steele submitted that police stopped and searched the car because one or more of its occupants was black. In his view, this was a random vehicle stop without any apparent driving misconduct, the four occupants were black and there were some inconsistencies between the officer's trial evidence, her notes and previous testimony that suggested the stop was racially motivated.

Although a stop or search motivated by racial bias or racial profiling will breach the Charter, the trial judge did not err in finding no such motivation. The officer gave evidence about when she first saw the vehicle and when she realized that one or more of the occupants was black. There was no basis to interfere with the trial judge's findings of fact that the stop and search were not racially motivated.

S. 24(2) admissibility

As for the admissibility of the evidence under s. 24(2), even if there had been a Charter breach the trial judge did not err in concluding that the gun should not be excluded.

"Even if the [accused] had had some expectation of privacy in the vehicle, it was highly attenuated," said Pardu.

The officer acted in good faith. The trial judge found that she was not undertaking a search for evidence of a crime, but was attempting to help the driver find proof of insurance. She asked the driver if he wanted her help, and looked in the glove box in reliance on his consent. The societal interest in a trial on the merits was substantial. The gun was highly reliable and probative evidence unaffected by any Charter breach.

Steele's appeal against conviction was dismissed.

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