Common Privacy?

Matthew Wawrykiewicz was in a hotel room. There was a complaint. The police were called. They entered the hotel room. Found drugs. Wawrykiewicz was arrested. Later the police were able to identify another address connected to the accused – 105 The Queensway. The police began surveillance at that address. They later obtained and executed a warrant. They located more drugs.

At trial Wawrykiewicz sought to exclude the evidence found at 105 The Queensway – in part he argued that the initial entry into the hotel room was unlawful and thus the subsequent search at 105 was unlawful. The trial judge agreed, but admitted the evidence under s24(2): 2017 ONSC 569.

As part of the defence Charter motion, Wawrykiewicz argued that the police surveillance at 105 The Queensawy – which included surveilling him and Poulter (who was also found in the hotel) in common areas of that building – violated s8: see R v White, 2015 ONCA 508. The trial judge disagreed.    

Prior to White was authority for the proposition that there is little or no expectation of privacy in the common areas of an apartment building: R. v. Piasentini, [2000] O.J. No. 3319 (Sup.Ct.); R. v. Thomsen, [2005] O.J. No. 6303 (Sup.Ct.).  As Wein J. pointed out in Piasentini, a contextual analysis is required that requires applying the factors set out in R. v. Edwards1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128.

The court then reviewed rulings in R v Barton, 2016 ONSC 8003 and R v Brewster, 2016 ONSC 4133 noting and adopting, inter alia, the following factors set out in that latter ruling:

  • The police must be engaged in activity that constitutes a search: R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8; Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145;
  • There must be a reasonable expectation of privacy in the place to be searched, which is determined from a contextual analysis: R. v. Edwards, supra; R. v. Tessling, 2004 SCC 67 (CanLII), [2004] 3 S.C.R. 432; R. v. Plant, [1993] 3 S.C.R. d281;
  • There is no reasonable expectation of privacy in observations of a underground parking garages in order to determine an association between an accused person and a building: R. v. Drakes and Brewster, 2009 ONCA 560 (CanLII);
  • There is no reasonable expectation of privacy from non-obtrusive observations made in the elevators and hallways of multi-unit buildings.  That includes observations of odours emanating into the common areas or the number of a unit where the suspect enters and exits: R. v. Laurin (1997), 1997 CanLII 775 (ON CA), 113 C.C.C. (3d) 519 (Ont.C.A.); R. v. Thomsen, supra;
  • Section 8 of the Charter is only engaged where the police “go beyond making observations that are externally visible or externally emanating into the common areas”: R. v. Laurin, supra; R. v. White, supra.

Turning to the facts the court noted:

  1. The police conducted surveillance in the elevator, the lobby and on one of the floors
  2. Wawrykiewicz was observed exiting 1905 and using a key to lock the door
  3. Wawrykiewicz was observed using a key fob to gain entry into the building
  4. There was no evidence regarding the actual connection he had to this residence
  5. Wawrykiewicz had bail conditions that required him to reside at a different address

Based on these facts the judge concluded:

I accept that a person may have more than one residence, but in the absence of any further evidence I cannot conclude that Mr. Wawrykiewicz’s expectation of privacy at 105 The Queensway was high.  I therefore find that he had even less of an expectation of privacy in the common areas.
I also cannot conclude that the police engaged in the type of intrusive behaviour that they did White.  They did not cock an ear to a door in order to eavesdrop on a private conversation.  They did not try to determine what Mr. Wawrykiewicz and Ms. Poulter were up to in Unit 1905.  Their sole purpose was to determine whether there was a connection between Mr. Wawrykiewicz and that unit.  As noted by Code J., there is no expectation of privacy in the unit number in a multi-unit building.  I therefore find that there was no stand-alone violation of s. 8 of the Charter in respect of Unit 1905 of The Queensway. @55-56

The Ontario Court of Appeal’s ruling in White has been the subject of much discussion since its release. Putting aside the conduct of the police in that case, the concept of creating an expectation of privacy in common areas is somewhat controversial, or at least subject to much discussion regarding its scope. Wawrykiewicz is a helpful ruling clarify this issue.