R. v. Belnavis [1997] 3 S.C.R. 341: Unreasonable search and seizure -- Car stopped for speeding -- Officer looking for car's documentation and questioning passenger -- Stolen goods contained in garbage bags found in car -- Driver and passenger charged with possession of stolen goods -- Whether the driver and the passenger had reasonable expectation of privacy engaged by the search and seizure -- If so, whether the evidence should be excluded

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Car stopped for speeding -- Officer looking for car's documentation and questioning passenger -- Stolen goods contained in garbage bags found in car -- Driver and passenger charged with possession of stolen goods -- Whether the driver and the passenger had reasonable expectation of privacy engaged by the search and seizure -- If so, whether the evidence should be excluded under s. 24(2) of the Charter -- Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

The police stopped a car for speeding and ran a computer check after the driver (Belnavis) could produce no documentation. While the computer check was being processed, the officer returned to the car to look for any pertinent documents. He questioned the passenger (Lawrence) who had stayed in the car and noticed garbage bags on the seat crowding her. He found more in the trunk. On inspection, he found they contained new clothes with price tags. The two women gave differing explanations as to who owned the bags. They were subsequently charged with possession of stolen property. The trial judge found the search unreasonable contrary to s. 8 of the Canadian Charter of Rights and Freedoms, excluded the evidence of the clothing under s. 24(2), and acquitted the accused. The Court of Appeal quashed the acquittals and ordered new trials. At issue here was whether the accused had a reasonable expectation of privacy engaged by the search and seizure, and if so, whether the evidence should be excluded under s. 24(2) of the Charter.

Held (Iacobucci J. dissenting in part and La Forest J. dissenting): The appeal should be dismissed.

Per Lamer C.J. and L'Heureux-Dubé, Gonthier, Cory, McLachlin and Major JJ.: The driver of the car, driving with the apparent permission of the owner, had a reasonable expectation of privacy in the vehicle. Searching the vehicle without a warrant constituted a breach of s. 8 of the Charter.

The passenger had no expectation of privacy, either in relation to the vehicle or in relation to the items seized, and therefore could not claim a violation of her s. 8 rights. The question as to whether a passenger has a reasonable expectation of privacy in a vehicle depends upon the totality of the circumstances. All of the relevant facts surrounding a passenger's presence in the vehicle must be considered. Here the facts demonstrated that the passenger had no reasonable expectation of privacy in the vehicle. Her connection to the vehicle was extremely tenuous. She had no control over the vehicle or access to it and did not demonstrate any relationship with the owner or driver which would establish some special access to or privilege in regard to the vehicle. No evidence indicated that she had a subjective expectation of privacy in the vehicle. There may well be other situations where a passenger could establish a reasonable expectation of privacy in a vehicle.

The passenger could not demonstrate a reasonable expectation of privacy in the seized merchandise and therefore had no reasonable expectation of privacy in relation to it. She did not identify any of the bags as hers and nothing on the exterior of the bags indicated a connection to her. A garbage bag is very different from a suitcase or kit bag with a name or initials on it.

The officer had reasonable and probable grounds, both objectively and subjectively, to search the vehicle. These grounds must inform the assessment of the seriousness of the Charter breach, when determining whether to admit the evidence under s. 24(2). The officer properly stopped the speeding vehicle. He had every right to look for documents pertaining to its ownership or registration, to check it for safety reasons and to speak with the passenger. An objective observer would consider the officer had reasonable and probable grounds to believe the bags contained stolen goods and to check the trunk for more.

The transcript indicated that the officer clearly asserted a subjective belief in reasonable and probable grounds. The trial judge's finding that he did not was unreasonable.

Whether or not the search was based upon reasonable and probable grounds, a consideration of all the circumstances leads to the conclusion that the evidence of the clothing should be admitted under s. 24(2) of the Charter. Three sets of factors need to be considered: the effect of admission on the fairness of the trial, the seriousness of the Charter breach and the effect of the exclusion of the evidence on the reputation of the administration of justice. Appellate courts should only intervene with respect to a lower court's s. 24(2) analysis when that court has made some apparent error as to the applicable principles or rules of law or has made an unreasonable finding.

Trial fairness was not in issue.

The trial judge's conclusion that the breach was serious could not stand. The degree of the seriousness of the breach decreases as the expectation of privacy diminishes. The reasonable expectation of privacy in relation to a car is greatly reduced, in comparison to that expected of a home or office and it is further reduced when the car belongs to another. Here, the trial judge failed to take into consideration the totality of the circumstances. The seriousness of the breach, if any, was diminished by the facts that there was no ongoing disregard for the accuseds' Charter rights, that there was no indication that any possible breach was deliberate, willful or flagrant, and that the officer acted entirely in good faith. Finally, the presence of reasonable and probable grounds mitigates the seriousness of the breach. The violation of the accused' s. 8 right was little more than a technical one.

The trial judge did not appear to have turned his mind to society's interest in the effective prosecution of crime or to the reliability or discoverability of the evidence. The exclusion, not the inclusion, of the evidence would cause harm to the administration of justice. The evidence was essential to the prosecution and was entirely reliable.

Per Sopinka J.: The police officer lacked reasonable and probable grounds. This conclusion, however, did not affect the necessity to resort to s. 24(2) of the Charter because a s. 8 breach occurred. Notwithstanding reasonable and probable grounds, a warrant less search violates s. 8, absent a constitutionally valid law authorizing warrant less searches. The evidence, however, should be admitted for the reasons of Doherty J.A. in the Court of Appeal. The expectation of privacy in a dwelling is very different from that expected in a car which can be lawfully stopped by police officers virtually at random.

Per Iacobucci J. (dissenting in part): The passenger (Lawrence) demonstrated no expectation of privacy sufficient to ground a claim under s. 8 of the Charter. The trial judge's conclusions with respect to the driver (Belnavis), however, were not unreasonable or based upon an error of law and were therefore entitled to appellate deference. Appellate courts cannot properly review findings of courts below in respect of s. 24(2) of the Charter and substitute their opinions absent some apparent error of law or a finding that is unreasonable.

The finding that the officer lacked reasonable and probable grounds to search the vehicle was not unreasonable. The grounds for the officer's searching activity must be assessed from the point of view of the initial search. The mere presence in the back seat of garbage bags with new clothing did not constitute objectively reasonable and probable grounds supporting the search of those bags. Similar observations could be made concerning the presence of subjective belief in reasonable and probable grounds. Given conflicting evidence as to subjective belief, an appellate court cannot state with certainty that subjective belief in reasonable and probable grounds existed or that the trial judge acted unreasonably in failing to find that it did.

When police do not have sufficient grounds to support a search, they must leave the suspect alone and not proceed in violation of the Charter to acquire the evidence they want. This is no less true of a car than a home or office.

The Charter breach was serious, notwithstanding its brief and isolated nature and the reduced expectation of privacy in the borrowed car. The trial judge was aware of concerns raised about the seriousness of the breach and his finding the breach to be serious was consistent with previous authority. He gave adequate consideration to whether the exclusion of the evidence would bring the administration of justice into disrepute. Often this factor is mentioned only in passing.

Per La Forest J. (dissenting): The police search of the car and the property of the driver and its passenger occurred in circumstances that could no doubt be viewed as suspicious but where the officer had no reasonable and probable grounds to believe those whose property was searched had committed a criminal offence. The requirement of reasonable and probable grounds is the minimum requirement for a search.

Taking a drive with one's spouse, friends or anyone else permitted to do so by the owner or driver is a common and perfectly legitimate activity in a free society and one which the citizen should generally be left free to pursue in the reasonable expectation that he or she would be left alone by the police. Both drivers and passengers have an equally reasonable expectation of privacy, not only as to their persons but also with regard to any goods they may be carrying in a motor vehicle.

There is less expectation of privacy in an automobile not because a person is less entitled to privacy but because, for the purposes of regulating and controlling traffic safety in cars, it is reasonable for the state to seek entry into a car more freely than to the home, and once there the police may incidentally observe what is illegal. But beyond this, the individual as such and the privacy he or she has in property brought with him or her is deserving of as much privacy as if the individual were at home.

The standard advanced by the majority, namely, that the police may search an automobile when the "totality of circumstances" dictates that it is reasonable to intrude upon a passenger's expectation of privacy in relation to the property brought by the passenger, is well below the traditional standard of reasonable and probable grounds. A vague standard such as this offers almost no protection to the citizen from interference by the police and also has grave implications for equality in the application of the law. Another reason for rejecting the "totality of circumstances" test is that it draws distinctions based on the personal relationships and undermines the fact that s. 8 of the Charter applies to everyone.

There is agreement with the trial judge that the search of the car and the property of both the accused was unreasonable. The evidence, as against the driver and the passenger, should be rejected under s. 24(2) of the Charter.

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