A member of the Outlaws Motorcycle Club in Sault Ste. Marie, Ont., is trying to get a search warrant quashed by arguing that the group’s clubhouse is like a second residence to him, and therefore, he has a heightened right to expect privacy. His lawyers appealed to the Superior Court of Justice in the Sault to allow him to proceed with a challenge to the validity of the search warrant. The appeal is based on Sections 8 and 24 of Canada’s Charter of Rights and Freedoms. While not quashing the search warrant, the judge ruled there was enough merit to allow the appeal to move forward. Charged with weapons possession The case centres on Daniel Favaro, a member of the club who is charged with possessing a handgun, unauthorized possession of a weapon and other related offences. He was arrested in connection with an incident Oct. 7, 2023, when Sault police received reports of gunfire. Investigators obtained a search warrant for the Douglas Street clubhouse on Oct. 11, 2023. “The search warrant was granted and the premises searched,” said the court decision from Sault Superior Court of Justice. “During that search, police found and seized items. The Crown proposes to tender items seized during the search as evidence at the trial.” Favaro is contesting the validity of the search warrant, arguing that while he didn’t live at the clubhouse, “he personally had a reasonable expectation of privacy in the place searched.” Fewer than 10 members He said that he has been a member of the club since January 2020, one of fewer than 10 members in the Sault chapter. “He states (that) he assisted in renovations of the clubhouse, inside and out, for which he was not compensated,” the court decision said. “He performs maintenance for the property, inside and out, again for no compensation, including but not limited to cutting grass, snow removal and cleaning.” Favaro said he eats dinner at the clubhouse three to five times a week, buys groceries and cooks there. “He celebrates holidays and special events at this property (and) considers this property to be his home away from home,” the court said. “He has personal belongings on the property such as clothes, motorcycle, hygiene products, snow removal shovels, bedding and cooking supplies.” Favaro said he pays monthly fees of $175 for his privileges and access to the property, which includes his membership fees for the club. The Crown countered that Favaro can’t establish that he had a right to expect privacy at the property because he didn’t live there, didn’t lease space and had a primary residence somewhere else. But in her decision, Justice Annalisa Rasaiah said the bar for her to allow the appeal to move forward was relatively low. The rules around expectations of privacy are “liberally construed,” she said. Don’t have to prove infringement “Proving the alleged infringement of the right in question is not required,” Rasaiah said. Factors that must be considered include the amount of control the person has over the property being searched; ownership of the property; historical use of the property; and the ability to control access to the property. “I appreciate the Crown’s submissions that the property is not Mr. Favaro’s primary residence,” the judge wrote. “However, I find that the fact that the clubhouse in this case may not be the primary residence of Mr. Favaro or a private residence of anyone does not eliminate expectation of privacy considerations. It just may, in the long run, diminish the expectation of privacy in the location. Expectation of privacy, even if diminished, counts.” The case, taken as a whole, presents enough of a challenge that Favaro should get the opportunity to make a Charter of Rights challenge, Rasaiah ruled. “The level of Mr. Favaro’s expectation of privacy, and what the home was to him, is for another day,” she wrote. “Standing only determines if an accused should have an opportunity to argue that their Charter rights may have been violated. There is enough on the record using the applicable threshold to grant standing based on the totality of the circumstances.” Read the full decision here. RELATED STORIES:
