R. v. Buhay

174 C.C.C. (3d) 97

Facts

SCC

2 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. he second man was pacing in front of the security guards and was glancing around. 2 individuals then left. One of the security guards, Mr. Mah, sniffed the vent of the locker door and smelled a strong odour of marijuana. The 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, inside they found a sleeping bag with a quantity of marijuana rolled up in the middle. Following this, they placed the items back in the locker, locked it, and contacted the Winnipeg Police Service. A short time later, Cst Barker and Riddell attended the locker 135. The officers smelled Marijuana and the Greyhound Agent opened the locker for them. Cst 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 Cst. Riddell testified that he did not 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 a pager number of an undercover vice officer. They instructed the 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. 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.

Reasons

SCC

Improper search and seizure, breach of charter of rights and freedoms section 8, officers had disregarded the appellants rights and the search was unlawfull and therefore unreasonable.

Issue

SCC

ISSUE #1: did the Charter of Rights apply to the secuirty guards not agents of the state and therefore the Charter of Rights does not apply ISSUE #2: -search and seizure in place -search was warrant less and assume unreasonable -reasonable searches -authorized by law -law must be reasonable -manner of search must be reasonable except circumstances ISSUE #3: reasonable expectations of privacy in lockers Edwards test: 1. (Buhay case) had a key 2. had a contract of no exception for this 3. subjective expectation and objective expectation para 12- contract of exclusive 24hr. use - unless dangerous or obnoxious odour do not enter - police search violated section 8

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