Ontario Criminal

Charter of Rights

Reasonable expectation of privacy to common areas of condominium building

Application by accused to exclude evidence against him because his rights under Canadian Charter of Rights and Freedoms were violated. Accused, who lived in condominium building unit, was charged with drug offences. Detective entered building on several occasions without permission as part of ongoing drug investigations. Accused was subject of investigation because of his dealings with drug dealer. On January 21, 2011 detective entered building through side door that was not properly closed. He saw dealer enter accused’s apartment through window and he departed with box. Box was found to contain marijuana and cocaine. Police obtained warrant to search accused’s residence and drugs and drug paraphernalia were located there. Detective acknowledged that he could not enter private property without permission but he maintained that he could enter in furtherance of police investigation. Application allowed. Accused had reasonable expectation of privacy to common areas of condominium building since he had ownership interest in his unit. His rights under s. 8 of Charter were violated by warrantless search of common areas. Police had no statutory authority to conduct that search. Search was unreasonable. Police also had no constitutionally unrestricted right to trespass on private property to conduct search. Detective’s search was unreasonable intrusion upon accused’s right to privacy. Police acted in bad faith because they did not bother to find out what they were allowed to do under Trespass to Property Act (Ont.), which was law they were supposed to know about without hesitation. Search was warrantless because when illegally obtained evidence was excised from information to obtain there was no basis to obtain warrant. Admitting evidence found in search of home with warrant devoid of legally obtained grounds would bring administration of justice into disrepute.

R. v. White (Apr. 5, 2013, Ont. S.C.J., Paul F. Lalonde J., File No. 11-5242) 105 W.C.B. (2d) 693.

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