Expecting privacy, you might have to say so

Richard Steele had a loaded, prohibited, semi-automatic handgun. He decided to take it with him when he went for a drive with his friend, White, in his mother’s car; Steele sat in the passenger seat. It was about 2 am when officer Stephens spotted the vehicle and pulled it over; the officer did so with the intention to check for proper documentation and to check on the sobriety of the driver.

Officer Stephens approached the car and asked White (who was driving) for a licence and the ownership. The car was registered to a Valarie Steele – the mother of Richard Steele. White told the officer the car belonged to a friend’s mother; there was no indication that the friend was the passenger, Richard Steele [para 7]. Steele remained silent throughout this exchange. White seemed nervous, but appeared to be cooperative. Officer Stephens offered to help him find his documentation, White accepted that offer. The other occupants were asked to step out of the vehicle and officer Stephens went to the passenger side of the vehicle and attempted to locate the documents in the glove box. Instead, officer Stephens spotted, under the seat, Steele’s loaded handgun.

Steele was arrested and charged. At trial he sought to exclude the evidence of the gun arguing that the search violated section 8. The trial judge dismissed the motion and convicted Steele. Steele appealed: 2015 ONCA 169.

Pardu J wrote the judgement for the court. Pardu J began by considering whether or not Steele had a reasonable expectation of privacy in the car. Citing R v Edwards, [1996] 1 SCR 128 and R v Belnavis, [1997] 3 SCR 341 and outlined relevant factors in this consideration; Pardu J also noted the Supreme Court’s recent consideration of this issue in R v Cole, 2012 SCC 53 and identified the “four lines of inquiry” to guide this test: "(1) an examination of the subject matter of the alleged search; (2) a determination as to whether the claimant had a direct interest in the subject matter; (3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and (4) an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances".

With those factors in mind, Pardu J concluded that Steele had no expectation of privacy:

In the circumstances of the present case, the appellant did not have a reasonable expectation of privacy in the car. The appellant was a passenger in the vehicle at the time of the search, and he was authorized by his mother, at the very least, to be a passenger in the vehicle. However, the appellant’s degree of possession or control, historical use, or ability to regulate access to the vehicle is unknown.
In general, it would be objectively reasonable for an individual using a family member’s car to have a reasonable expectation of privacy in that vehicle. Here though, the appellant did not identify himself as a person to whom the car had been loaned, and he did not indicate his connection to the vehicle’s owner. He was only a passenger in a vehicle driven by another person who claimed to have borrowed the car. Further, the police had no reason to believe that the appellant had any connection to the vehicle other than as a passenger. Moreover, the driver was attempting to produce required documentation to police, and had apparent control of the vehicle. Under these circumstances, there is no basis for a person in the appellant’s position to have subjectively expected privacy in the vehicle. [Emphasis added]; [@19-20].

Steele is a helpful case that illustrates the importance of a principled and substantive, as opposed to formulaic, consideration of the issue: see paras 16-17. In particular, despite the fact that the car belonged to Steele’s mother and she knew he had it, the absence of evidence from Steele himself (see similar comments in R v Lattif, 2015 ONSC 1580) and absence of evidence provided to the officer, in part, undermined any claim that he had a reasonable expectation of privacy at the time.