Mervyn Allen Buhay

Supreme Court unanimous in privacy case

By KIRK MAKIN, Globe and Mail,, Jun. 5, 2003

Winnipeg police showed "blatant disregard" for the Charter of Rights and Freedoms by seizing marijuana from a bus terminal locker without obtaining a search warrant, the Supreme Court ruled Thursday.

The 9-0 ruling was a strongly worded endorsement of privacy and the constitutional right to be free of unreasonable search and seizure.

The court acquitted Mervyn Allen Buhay, who was arrested for marijuana trafficking shortly after he returned to the bus terminal to retrieve a duffel bag containing the marijuana.

Writing for the court majority, Madam Justice Louise Arbour said the police faced no situation of urgency. Nor, she said, was there anything to prevent their obtaining a warrant.

Judge Arbour emphasized that the minor nature of the charge and the location of the marijuana in a locker did not downgrade the importance of the constitutional principles involved.

"The administration of justice does not have to be brought into disrepute on a national scale before courts may interfere to protect the integrity of the process within which the operate," Judge Arbour said.

The case was complicated by the fact that the initial search of the locker was conducted by private security guards. Private guards are not considered 'state actors' - and the Charter applies only to government conduct. The question therefore arose of whether the search could properly be found unconstitutional.

The court said it most certainly could.

"I see no basis for holding that a person's reasonable expectation of privacy as to the contents of a rented and locked bus depot locker is destroyed merely because a private individual - such as a security guard - invades that privacy by investigating the contents of the locker," Judge Arbour said.

Mr. Buhay spoke to terminal officials on March 14, 1998, while a friend went to open locker No. 135. After they left, suspicious security guards went over and sniffed at the locker door.

Detecting the odour of marijuana, they opened the locker with a master key. Inside, they found a duffel bag containing the drug. They called the Winnipeg Police Service. Two officers arrived, opened the locker and seized the bag of marijuana.

They arrested Mr. Buhay shortly after he returned the following day.

Mr. Buhay's trial judge acquitted him on the basis that he had a reasonable expectation of privacy. He noted that there were no signs at the terminal indicating that lockers might be searched.

The Manitoba Court of Appeal overturned the acquittal and ordered a new trial.

"The violation was serious and not simply a technical one," the Supreme Court said Thursday.

"The court is concerned at the casual approach that the police took to infringing the accused's rights in these circumstances. It is the court's view and concern that if the evidence was to be admitted in this trial, it may encourage similar conduct by police in the future."

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