R. v. Campbell: Is a Man’s Home Really His Castle?
The justices on the Court of Appeal for Ontario diligently erect an architectural analogy to better understand the legal issues at hand in R. v. Campbell. At the centre of the case is the question of whether the accused’s Charter right was violated when the police searched his rented room.
Before the case reached the Supreme Court of Canada, the Court of Appeal wrangled over the housing metaphor. The lone dissenter, Doherty J.A. declared the search and seizure conducted by the police to be unconstitutional; the physical proximity between the accused and the man suspected of murder in the townhouse is not enough to give grounds for a warrant to search the accused’s room. He comes to this conclusion by harnessing the power of analogy. Essentially, Justice Doherty puts forward the argument that this search is comparable to a search of a 100-unit apartment building, where every unit is searched and any evidence is seized when one resident in that building is suspected of committing a crime.
Writing for the majority of the Court of Appeal, Juriansz J.A. does not buy it. The majority do not regard the rented townhouse rooms and the 100-unit apartment building to be analogous, instead reasoning that, “the tenants’ residences in this townhouse as connected and overlapping unlike those in a large apartment building,” where “tenants… have access not only to the deceased’s front door, but to her bedroom door, and to the shared bedroom, kitchen, dining room and living room.”
The debate around this metaphor is really a debate about the nature of the relationship of those who live under one roof, and the right to privacy of someone who lives in a shared house as opposed to a single dwelling unit.
A Murder Investigation That Took a Turn
On July 14, 2006, the partially clothed remains of a human were found inside a black duffel bag approximately 100 meters from the townhouse where Mr. Norman Martin Campbell, the accused, Mr. Imona-Russel and others rented rooms. The police was able to quickly identify the victim, Ms. Ashareh, who lived in the same compound, along with a receipt for Chinese food and a Western Union receipt with Mr. Imona-Russel’s name and address on it.
Having discovered that Mr. Imona-Russel had a criminal record, namely outstanding charges of aggravated sexual assault, police stepped in and removed Mr. Campbell, his girlfriend and Mr. Imona-Russel from the premises for the sake of safety. The police then applied for and obtained a warrant to search the townhouse on the basis of a sworn Information to Obtain a Search Warrant (“ITO”). During the search, the police discovered a sawed off shotgun and ammunition in Mr. Campbell’s room. The accused was charged with possession of a firearm, breaking his weapons prohibition and the conditions of his probation, which included not possessing weapons. At trial, Mr. Campbell took the position that the ITO was overly broad and insufficient as it related to his rented room in the townhouse. Thus, he asked the court to exclude the evidence of the shotgun and ammunition on the grounds that it interfered with his right to be free from unreasonable search and seizure, as guaranteed by section 8 of the Canadian Charter of Rights and Freedoms.
The Search Warrant
In this case, the accused, Mr. Campbell, bears the burden of proving that the ITO is insufficient (Quebec (Attorney General) v. Laroche, 2002 SCC 72). As we recall from the landmark case of Hunter v. Southam Inc., the police must provide “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and there is evidence to be found at the place of the search” (Hunter v. Southam Inc., [1984] 2 SCR 145). Moreover, the recent decision in R. v. Morelli warns the Court that the question is “not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence” to permit an issuing justice to authorize the warrant (R. v. Morelli, 2010 SCC 8).
Charron J., writing for the entire bench, declares early in the decision that, “[t]he accused’s expectation of privacy in his room within the townhouse is just as high as that of a resident in a single dwelling unit.” From the trial judge to the justices on the Supreme Court of Canada, the ITO was deemed to have “left much to be desired” in respect to setting out reasonable and probable grounds for each unit in the townhouse to be searched. Problems ranged from unclear language, whether intentional or not, to the trial judge not being handed some portions of the ITO until the very end of the hearing. Despite these shortcomings, however, the Supreme Court sided with the Court of Appeal in concluding that the accused failed to show that there were insufficient grounds to issue a warrant to search his room.
How Much Do We Know About Our Neighbours?
Applying the criteria set out in Hunter v. Southam (“reasonable and probable grounds, established under oath”) and Morelli (“sufficient credible and reliable evidence”), the trial judge delivers a more satisfying answer to the question of whether there were sufficient grounds upon which the issuing justice of the peace could have authorized the search warrant.
Countering the trial judge, the majority of the justices on the Court of Appeal zoom in on Mr. Campbell’s criminal record. While Mr. Campbell’s background may be important, the fact that Mr. Campbell has had criminal convictions at some point in the past does not necessarily give rise to “reasonable and probable grounds” to search his room in the present. Really, it is only Mr. Imona-Russel’s criminal record that is relevant to the offense. As well, the Court of Appeal majority disagreed with the trial judge as to the importance of those black duffel bags. It was Mr. Imona-Russel who first claimed that he had seen Mr. Campbell with black duffel bags; Mr. Imona-Russel was subsequently arrested for Ms. Ashareh’s murder. Along with the criminal record, this indirect information would have rendered the ITO highly problematic.
The trial judge poked additional holes in the ITO, which the Court of Appeal and Supreme Court do not explicitly address. The trial judge found that the police overstated the tenants’ relationship to each other, specifically the knowledge of one’s comings and goings (see more below). If anything, this could give rise to the opportunity to commit an offence together, but it does not give rise to “reasonable and probable grounds” for a search of the accused’s room. Lastly, the Chinese food receipt located near the body that belonged to Mr. Campbell does not meet the threshold either. That is, that Mr. Campbell has a criminal record, access and opportunity to commit the offence does not mean that the criteria laid out to authorize search and seizures by the police has been met.
A Room of One’s Own
One of the most pressing questions in this case is: how different is a 100-unit apartment building and a townhouse with rented rooms in terms of the relationship among tenants? The Court of Appeal and Supreme Court would be inclined to answer that they are very different. In the words of Juriansz J.A., “the tenants in the townhouse, unlike the tenants of a 100-unit building, had access not only to the deceased’s front door, but to her bedroom door, and to the shared bathroom, kitchen, dining room and living room.” In a 100-unit apartment building, on the other hand, each tenant is awarded more privacy.
The first problem with Juriansz J.A.’s argument is that it does not take the facts of the case into account. Mr. Campbell did not live on the same floors as the other tenants. In fact, he was housed in the basement apartment, which had its own bathroom and kitchen. That flow of traffic between Mr. Campbell’s personal space and shared space was not a material reality in townhouse at hand. If anything, Mr. Campbell would only have shared a front door with the other tenants. More importantly, Juriansz J.A.’s point pivots on the fact that those who share common living space are more likely to join in, or at least be aware of, criminal activity. This assumes a system of surveillance where one neighbour patrols the others as they walk to and from the kitchen. This is not necessarily the reality of living in a shared house. In sum, living in closer proximity and sharing more walls with his/her neighbours does not constitute “reasonable and probable grounds” to conduct searches and seizures of all of the neighbours’s rooms by the police. To think otherwise may open the door to warrants being awarded for mere association to a crime or a criminal.
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