Pubdate: Thu, 16 Apr 2009
Source: See Magazine (Edmonton, CN AB)
Copyright: 2009 SEE Magazine
Author: D. James Anderson


The Answer Depends On Your Living Situation, And Just How Much You
Trust Your Mom

Editor's note: This is a guest column on privacy issues by local
lawyer D. James Anderson. Last week he looked at whether police can
search your home if they smell pot. This week he looks at who can let
the police into your home or room.

Here's the question: can a roommate, a parent, or a landlord let the
police search your room or apartment without your consent?

Well, let's return to the reasonable expectation of privacy pool for
another lap.

A little over 10 years ago, a young Edmonton man I'll call "F" was
being investigated by the police regarding an alleged sexual assault.
They decided to visit his home (he lived with his parents) to gather
some evidence. They did not have a warrant.

F wasn't home, but his mother was. The police told her that they were
looking for items of F's clothing they could use for a DNA analysis,
and explained the implications. A helpful mother, she agreed, and led
the officers to F's room. The door was closed but not locked. They
entered, collected a pair of F's boxer shorts, and left.

As there had been a warrantless search of F's room, the question at
trial  became: "Did F have a reasonable expectation of privacy
regarding the boxer shorts?" If yes, the question would become: "Was
the police search an unreasonable intrusion into that privacy?" If no,
then the analysis would end right then and there.

In a 1996 decision called R. v. Edwards, Supreme Court of Canada
Justice Peter Cory established the test for whether a reasonable
expectation of privacy exists. Although the "totality of
circumstances" are to be considered, Cory played favourites.

Concerns that "may" be considered, he wrote, include whether the
subject was present at the time of the search; whether they were in
possession or control of the property or place searched; whether they
owned the property or place; the historical use of the property or
item; the subject's ability to regulate access to the place; the
existence of a subjective expectation of privacy; and the objective
reasonableness of that expectation.

Edwards had been arrested on a drug charge. The drugs were later found
in his girlfriend's apartment, but as Edwards was found not to have a
reasonable expectation of privacy in his girlfriend's apartment, he
himself was found not to have been subject to a Charter violation -
this in spite of the fact he regularly visited her apartment,
occasionally stayed their overnight, and even had his own keys.

However, he did not contribute to paying rent or other household
expenses, and only his girlfriend was able to regulate access.

Edwards has since been applied to other circumstances.

Generally, a passenger in a vehicle has no reasonable expectation of
privacy. A hotel guest making use of a "Do Not Disturb" sign often has
a reasonable expectation of privacy only when it comes to items
neither left in plain view nor requiring daily maintenance by hotel

And while landlords can grant the police access to the common areas of
an apartment building, the police still require, in the absence of
either a warrant or a common law duty, the consent of the "dwelling
resident" to enter an apartment proper. (Landlords are entitled to
enter an apartment without notice or consent only in an emergency. In
all other circumstances - including repairs, pest control, or to show
the space to a prospective renter - they can enter without consent but
with at least 24 hours' written notice. The notice must indicate when
and for how long entry will be made, and for what purpose.)

However, a recent Ontario decision may have returned some teeth to
privacy advocates' mouths. Again, it was a case where an apartment was
shared, but the evidence was found not in the bedroom belonging to the
accused, but in another.

The court warmed the hearts of civil libertarians everywhere by
finding that the Charter would inadequately protect Canadians' privacy
if the ability to regulate access was by itself the deciding factor.

Unfortunately for young Mr. F, it was. Applying Edwards, the court
found that because F was not present at the time of the search and
could not regulate access to his room (his mother would go into his
room for laundry and to clean up on a weekly basis), he had no
reasonable expectation of privacy.

He was out of luck, and wound up convicted on the basis of the DNA
evidence turned up by the search.

Now let's all go buy locks for our bedroom doors. 
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MAP posted-by: Larry Seguin