Search of abandoned backpack did not violate accused's s. 8 rights
Justice Michelle Fuerst, Justice Michal Fairburn and Scott Fenton
Facts: Transit officers conducting routine fare inspections of passengers on a rapid transit system came upon the accused. She had a backpack slung over her shoulder. She was unable to produce proof of payment, and was asked to leave the train. She did so, taking the backpack with her. The transit officer then asked her for her name and date of birth, so that a ticket could be prepared and served on her. The accused lied about her identity, and refused to give truthful information. Only after she was arrested and handcuffed did she finally give her true name and date of birth. The transit officer made inquiries, and discovered that there were outstanding warrants for the accused’s arrest.
The officers intended that the backpack would go with the accused to the police station, where it would be inventoried and stored until her release. However, a friend of the accused tried to collect the backpack, and kept circling around it even after being told to leave. In response, the officers secured the bag. One of them thought that the bag was heavy and made a clunking noise when set down. It looked to him as though something was poking through it from the inside. He looked inside the bag and discovered a loaded, sawed-off shotgun and ammunition.
The accused was charged with various weapons offences. At trial, she sought the exclusion of the shotgun and the ammunition on the ground that her Charter s. 8 right was breached by the warrantless search. She testified on the voir dire that before boarding the train, she found the backpack near the train platform. She looked inside it. When she saw the gun and the ammunition, she decided to keep the bag, take it on the train with her, and turn it over to the authorities after calling them from a friend’s hotel room.
Held: Application dismissed.
The trial judge concluded that the accused did not have standing to assert a s. 8 breach in respect of the search of the backpack. He applied the Edwards analysis. Even based on the accused’s testimony, she did not have a reasonable expectation of privacy in the backpack that she said she found abandoned just a few minutes before she was stopped by the transit officers. She was only a very temporary safe-keeper of the bag, until it could be turned over to the authorities due to her concern for public safety. She held onto it only to prevent it from falling into the hands of others. There was no historical use of the backpack by her. The trial judge did not accept that a person who found the backpack could regulate access to it, unless to keep it away from known criminals or irresponsible citizens. He found that there could be no subjective expectation of privacy in an article by someone who wanted only to turn it in to the authorities.
Commentary: This decision illustrates the difficulty that an accused has when he or she seeks to argue a s. 8 breach arising from the search of a place or thing that is asserted to belong to, or in respect of which access is controlled by, a third party. In this case, the short time span from the finding of the backpack by the accused to its search made it particularly difficult for her to establish a sufficient connection to it to ground a reasonable expectation of privacy in it.
R. v. Medicine Traveller
, 2016 ABPC 217, 2016 CarswellAlta 1812 (Alta. Prov. Ct.)