CASE LAW: No established privacy interest neuters charter challenge
By Mike Novakowski
Ontario's top court has ruled that a drug dealer failed to establishing he had a privacy interest at his girlfriend's home and was nothing more than a "privileged guest".
In R. v. Merelles, 2016 ONCA 647 a confidential informant told police the accused was dealing in large amounts of heroin. The informer provided Merelles's personal attributes, location of properties he frequented, a description of his truck and licence plate and the kind of heroin he possessed.
By Mike Novakowski
Ontario’s top court has ruled that a drug dealer failed to establishing he had a privacy interest at his girlfriend’s home and was nothing more than a “privileged guest”.
In R. v. Merelles, 2016 ONCA 647 a confidential informant told police the accused was dealing in large amounts of heroin. The informer provided Merelles’s personal attributes, location of properties he frequented, a description of his truck and licence plate and the kind of heroin he possessed.
During three days of surveillance, police noted four apparent hand-to-hand drug transactions between Merelles and unknown individuals, one occurring at a Brunswick property and another at his residence. Merelles also appeared to engage in counter-surveillance driving techniques.
Police obtained search warrants for three properties, including Merelles’ residence on Delaware Avenue and the garage of the home of his girlfriend’s mother on Columbine Avenue. They seized 189.19 grams of cocaine from the Columbine property; 983.51 grams of heroin, 29.36 grams of cocaine, $19,850 in Canadian currency and $150 in US currency from his Delaware residence; and 6.41 grams of heroin, including 20 decks of 0.15 grams each and 1.88 grams of cocaine on Merelles’ person.
An Ontario Superior Court of Justice judge found Merelles lacked standing to challenge the search warrants for the Columbine property because he didn’t have a reasonable expectation of privacy in it. There was no evidence he had an ownership, leasehold or possessory interest in the property. He only had a key to the garage and stored machinery and tools there with consent.
As for the Deleware residence, the judge accepted that Merelles had a reasonable expectation of privacy in it since it was his home. The warrant, however, was valid. The information from the confidential informer and police surveillance provided reasonable grounds to believe drugs and related property would be located there.
The confidential informer’s information was highly detailed and compelling. As well, the apparent hand-to-hand transactions were consistent with the information that Merelles was trading in illicit drugs. He was convicted of possessing heroin and cocaine for the purposes of trafficking and possessing the proceeds of crime and sentenced to 10 years’ imprisonment, less time served.
In the Ontario Court of Appeal, Merelles argued that the trial judge erred in concluding he did not have standing to challenge the search of the Columbine property and finding the search warrant for his Delaware residence valid.
· presence at the time of the search;
· possession or control of the property or place searched;
· ownership of the property or place searched;
· historical use of the property or item;
· the 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.
Merelles did not testify. The evidence established that his girlfriend lived at the residence with her mother. Merelles only had a key to the garage, not the rest of the house, and was permitted to store tools and machinery there. In upholding the trial judge’s conclusion that Merelles did not have standing to challenge the search warrant for the Columbine property, Justice Pepall stated:
<In my view, the trial judge did not err in concluding that the [accused] had no standing with respect to the Columbine property. While the [accused] had a key, there was no evidence that the [accused] regulated access to the garage. Nor was there any evidence of historical use of the property – only that he used it in September 2010.
The [accused] was not present at the time of the search and he did not possess, control or own the garage. Although one could infer that he could admit people to the garage, there was no evidence to suggest that he could exclude entry. There was no evidence about others in possession of a key. There was also no evidence of any subjective expectation of privacy or evidence supporting an inference of a subjective expectation of privacy. [The accused] was “no more than a privileged guest.”
I also reject the [accused’s] argument that a garage in these circumstances is akin to a rental locker. There was no evidence that the [accused] rented the garage space or that he had exclusive access to it. From the evidence before the trial judge, the [accused] was simply permitted to use the garage to store tools. The totality of the circumstances did not give rise to a reasonable expectation of privacy> [para. 21-22].
When a court reviews the sufficiency of a search warrant, which is presumed valid, the test is “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued.”
The appeal court found there was ample evidence for the trial judge to conclude there were reasonable and probable grounds to issue the warrant for the Delaware residence. In regards to informer information, Pepall stated:
Although the confidential informer had only provided information on one previous occasion that resulted in charges as opposed to a conviction, the information was detailed and first-hand. There was no information given in the past to police that turned out to be unreliable.
In addition, “the police investigation and surveillance established a strong link between the [accused] and the Delaware residence and included the observation of an apparent hand-to-hand transaction in the residence’s well-lit garage,” said Pepall.
“The [accused] then was observed to have left the premises and to have participated in another apparent hand-to-hand transaction. The police surveillance observations amplified, and were consistent with, the rest of the information provided by the informant.”
Since the search was lawful, there was no need to consider <s. 24(2)> of the Charter. Merelles’ appeal was dismissed.