R. v. Buhay

Arbour J. — We are asked in this appeal to determine the constitutionality of a seizure of marijuana made from a locker the appellant had rented at the Winnipeg bus depot. This involves the determination of whether the Canadian Charter of Rights and Freedoms applies to an initial search conducted by private security guards. It also involves the determination of whether the subsequent warrantless search and seizure by the police violated the appellant’s rights under s. 8 of the Charter and if so, whether the evidence should be excluded under s. 24(2) of the Charter .

The Winnipeg bus depot has a set of lockers that can be rented out by the public. The lockers can be accessed by a key. The fee for a locker is $2 for any period of 24 hours or less, with a $4 overtime charge for an additional 24 hours. After the period expires, the contents of the locker may be removed and held for 30 days, after which they can be sold for accrued charges. A sticker on each locker explains these terms and conditions. The lockers are owned by Canadian Locker Company and are managed on an alternating basis by Greyhound Bus Lines and Grey Goose Bus Lines.

On March 14, 1998, two individuals approached the security desk at the Winnipeg bus depot to inquire about the use of lockers there. While one of the individuals spoke to the security guards, the other went to the bank of lockers and removed a bag from locker 135. He was noticed digging through the bag, and one of the security guards noted a slight odour of marijuana. The second man was pacing in front of the security guards and was glancing around. The two individuals were then seen locking the locker and walking out of the bus depot.

Approximately one hour and 45 minutes later, after completing other duties, the security guards decided to investigate further. They went to the locker. One of the guards, Mr. Mah, sniffed the vent of the locker door and smelled a strong odour of marijuana. The security guards went to the Cargo Express Agent for Greyhound Bus Lines, Mr. Will, and advised him of what they suspected was in the locker and inquired whether they could gain access. Mr. Will opened the locker with his master key. One of the security guards removed the duffel bag that they had seen being placed in the locker earlier and opened it. Inside, they found a sleeping bag with a quantity of marijuana rolled up in the middle. Following this discovery, the security guards placed the items back in the locker, locked it, and contacted the Winnipeg Police Service.

A short time later, Constables Barker and Riddell attended the bus depot and were directed by the security guards to locker 135. The officers smelled marijuana and the Greyhound agent opened the locker for them. Constable Barker seized the bag of marijuana and placed it in the back of his cruiser.

The police officers did not have a search warrant. Constable Barker testified that the idea of obtaining a warrant never crossed his mind and Constable Riddell mentioned that he did consider obtaining a warrant but that he did not think the appellant had a reasonable expectation of privacy in the locker and that, further, he did not think he had sufficient grounds to obtain a warrant.

Following the seizure of the drugs from the locker, the officers placed a note inside the locker with the pager number of an undercover vice officer. They instructed the security guards at the bus terminal to keep an eye on the locker. The next day, an individual attended at locker 135, opened it with a key, and upon reading the note, left the premises. The appellant was arrested later that afternoon.

At the time of these events, Greyhound Bus Lines was responsible for the lockers. Mr. Will testified that the company’s policy was to enter a locker if it believed that the locker contained something dangerous or if it was “giving off a bad odour or something like that”. No notice of this policy was given to those who rented the lockers.

The appellant was charged with possession of marijuana for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 . At trial before Aquila Prov. Ct. J., a voir dire was held to determine the admissibility of the marijuana that was seized from the bus depot locker.

The trial judge first determined whether the Charter applied to the security guards. He held that it was clear from the evidence that the security guards were employed by a private security firm and that in order for the Charter to apply, they must be found to have been acting as agents of the state. Considering the decisions of the British Columbia Court of Appeal in R. v. Fitch (1994), 47 B.C.A.C. 154, and of this Court in R. v. M. (M.R.), [1998] 3 S.C.R. 393, he concluded that the security guards were not agents of the state and that the Charter therefore did not apply to the initial search by them.

Aquila Prov. Ct. J. then examined the search and seizure by the police officers. As the search was warrantless, it was prima facie unreasonable. In accordance with the test set out in R. v. Collins, [1987] 1 S.C.R. 265, it could only be found reasonable if: (1) it was authorized by law, (2) the law itself was reasonable, and (3) the manner in which the search was carried out was reasonable. Aquila Prov. Ct. J. found that there were no “exigent circumstances” in the present case, and that the police officers could have easily obtained a search warrant.

Aquila Prov. Ct. J. then considered whether the appellant had a reasonable expectation of privacy with respect to the locker. He followed the test set out by Cory J. in R. v. Edwards, [1996] 1 S.C.R. 128, and concluded that the appellant had a personal and reasonable expectation of privacy. In particular, the appellant had a contract for exclusive use of the locker for 24 hours, which had not expired. Unless the locker contained something dangerous or was giving off an obnoxious smell, neither the managers nor the police had a right to enter. Consequently, the seizure by police violated s. 8 of the Charter .

To determine whether the evidence should be excluded, Aquila Prov. Ct. J. followed the test established in Collins. He found that the evidence was real and non-conscriptive. However, he concluded that the violation was serious and not merely technical. The trial judge expressed concern at the casual approach that the police took in infringing the appellant’s rights. He felt that exclusion was necessary to discourage similar police conduct in the future. Aquila Prov. Ct. J. granted the motion to exclude the evidence, and, as the parties agreed that the outcome of the case rested entirely on the admissibility of the drugs, the appellant was acquitted.

In a brief judgment, Huband J.A. for the Manitoba Court of Appeal allowed the Crown’s appeal and entered a conviction. The Court of Appeal was satisfied that the initial search by the security guards did not violate s. 8 because they were privately employed and, therefore, were not subject to the Charter . The court found that when the police opened the locker and seized the marijuana, there was merely a “transfer of control” from the security guards to the police. The court reasoned that had the security guards placed the marijuana into a corner cupboard or into a different locker, there would have been no question that the transfer of the marijuana would not have constituted a search and seizure by the police. Placing the marijuana back into the same locker on a temporary basis, but still under the control of the security guards, leads to the same conclusion. As there was no search or seizure conducted by agents of the state, there was no violation of s. 8.