R. v. Edwards [1996] 1 S.C.R. 128: Unreasonable search and seizure -- Evidence -- Admissibility -- Search of apartment of third party -- Real evidence seized and admitted -- Whether or not accused can challenge admission of evidence obtained as a result of a search of third party's premises

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Evidence -- Admissibility -- Search of apartment of third party -- Real evidence seized and admitted -- Whether or not accused can challenge admission of evidence obtained as a result of a search of third party's premises -- Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

The accused was convicted of possession of drugs for purposes of trafficking. He had been suspected of drug dealing out of his car using a cellular phone and of keeping the drugs at his residence or at his girlfriend's apartment. The police arrested him on a traffic offence. Two officers later called at his girlfriend's apartment and gained her cooperation through a number of statements, some of which were lies and half-truths -- the evidence was conflicting as to whether they were made before or after the officers were admitted to the apartment. Once inside, the accused's girlfriend directed them to the location of a significant cache of drugs. She was arrested a short time later but the charges against her were later dropped. At no time prior to being taken into custody was she advised of her right to refuse entry to the police or of her right to counsel. At the police station, she gave a statement naming the accused as the person who put the drugs in her apartment. At trial and on appeal, the accused denied being the owner of the drugs. The accused's appeal from conviction was dismissed with a dissenting opinion which found a reasonable expectation of privacy giving rise to the possibility of an infringement of his s. 8 Charter rights against unreasonable search or seizure. The appeal as of right to this Court was limited to this issue.

Held: The appeal should be dismissed.

Per Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: Several principles pertain to the s. 8 right to be secure against unreasonable search or seizure. A claim for relief under s. 24(2) of the Charter can only be made by the person whose Charter rights have been infringed. Like all Charter rights, s. 8 is a personal right. It protects people and not places. The right to challenge the legality of a search depends upon whether the accused had a reasonable expectation of privacy, and if so, whether the search by the police was conducted reasonably. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. The factors to be considered may include: (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; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. 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.

The accused had no privacy interest in the goods seized as he had denied that the drugs were his. He demonstrated no expectation of privacy in his girlfriend's apartment which was the only other relevant privacy interest. His girlfriend described him as "just a visitor" who stayed over occasionally. He contributed nothing to the rent or household expenses and had no authority to regulate access to the premises.

The police conduct did not affect a personal right of the accused. It was accordingly not necessary to consider whether the accused could contest the admissibility of the evidence pursuant to s. 24(2) of the Charter or whether the accused's girlfriend did in fact consent to the search of her apartment.

The reasonable expectation of privacy concept has worked well in Canada. It has proved to be reasonable, flexible, and viable and should not be abandoned in favour of the discredited rule of automatic standing.

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