France (Republic of) v. Tfaily, 2009 CanLII 92123 (ON CA)

The Attorney General of Canada (On behalf of the Republic of France) v. Tfaily [Indexed as: France (Republic of) v. Tfaily]

98 O.R. (3d) 161

Court of Appeal for Ontario,

Simmons J.A. (In Chambers)

December 22, 2009

Criminal law -- Mutual legal assistance in criminal matters -- France seeking extradition of applicant's common law spouse in connection with terrorist bombing -- Applicant's home and office work computers seized pursuant to search warrants issued under Mutual Legal Assistance in Criminal Matters Act -- Application judge making partial sending order directing that electronic images of hard drives of those computers be sent to France -- Application judge rejecting applicant's argument that search warrants for her office and home could not properly have issued and that search and seizure violated her rights under s. 8 of Charter -- Leave to appeal partial sending order granted -- Canadian Charter of Rights and Freedoms, s. 8 -- Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.)

The Republic of France was seeking the extradition of the applicant's common law spouse in connection with a 1980 terrorist bombing. The applicant was not a target of the French investigation. Her home and office work computers were seized pursuant to search warrants issued under the Mutual Legal Assistance in Criminal Matters Act. The application judge made a partial sending order directing that electronic images of the hard drives of the applicant's two computers be sent to France. He rejected the applicant's argument that the warrants were issued in the absence of reasonable grounds as required under s. 12 of the Act and that the search and seizure violated her rights under s. 8 of the Charter of Rights and Freedoms. The applicant applied for leave to appeal the partial sending order.

Held, the application should be granted.

The fact that the legal test for reviewing a warrant issued under the Act has been settled was not determinative of the issue of whether leave to appeal should be granted. The question of law raised was whether the grounds for issuing the warrant were sufficient in this case. The applicant's claim that her reasonable expectation of privacy in personal electronic data had been violated justified further review. The question of whether a breach of the s. 8 Charter rights of a non-target could justify declining a sending order was a serious issue of general importance. France would not be prejudiced if leave to appeal were granted.

APPLICATION for leave to appeal a partial sending order.

Cases referred to R. v. Cole, 2009 20699 (ON SC), [2009] O.J. No. 1755, 190 C.R.R. (2d) 130 (S.C.J.), distd Other cases referred to Canada (Attorney General) v. Ni-Met Resources Inc. (2005), 2005 8670 (ON CA), 74 O.R. (3d) 641, [2005] O.J. No. 1169, 251 D.L.R. (4th) 355, 196 O.A.C. 85, 195 C.C.C. (3d) 1, 64 W.C.B. (2d) 518 (C.A.); Canada (Commissioner of Competition) v. Falconbridge Ltd., 2003 52144 (ON CA), [2003] O.J. No. 1563, 225 D.L.R. (4th) 1, 170 O.A.C. 299, 173 C.C.C. (3d) 466, 24 C.P.R. (4th) 289, 12 C.R. (6th) 243, 59 W.C.B. (2d) 72 (C.A.); National Cheese and Food Co. (Re), 1998 1089 (ON CA), [1998] O.J. No. 1988, 110 O.A.C. 151, 38 W.C.B. (2d) 281 (C.A.); R. v. Bergauer-Free, [2009] O.J. No. 3340, 2009 ONCA 610, 255 O.A.C. 233, 68 C.R. (6th) 362; R. v. Budd, 2000 17014 (ON CA), [2000] O.J. No. 4649, 138 O.A.C. 116, 150 C.C.C. (3d) 108, 48 W.C.B. (2d) 341 (C.A.); [page162] R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, 38 D.L.R. (4th) 508, 74 N.R. 276, [1987] 3 W.W.R. 699, J.E. 87-516, 13 B.C.L.R. (2d) 1, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193, 28 C.R.R. 122; R. v. Edwards (1996), 1996 255 (SCC), 26 O.R. (3d) 736, [1996] 1 S.C.R. 128, [1996] S.C.J. No. 11, 132 D.L.R. (4th) 31, 192 N.R. 81, J.E. 96-349, 88 O.A.C. 321, 104 C.C.C. (3d) 136, 45 C.R. (4th) 307, 33 C.R.R. (2d) 226; R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, 116 N.R. 241, J.E. 90-1684, 43 O.A.C. 1, 36 Q.A.C. 161, 60 C.C.C. (3d) 161, 80 C.R. (3d) 317, 50 C.R.R. 206, 11 W.C.B. (2d) 342; R. v. McKenzie, 2002 45009 (ON CA), [2002] O.J. No. 3029, 162 O.A.C. 160, 167 C.C.C. (3d) 530, 3 C.R. (6th) 317, 96 C.R.R. (2d) 108, 54 W.C.B. (2d) 688 (C.A.); United States of America v. Ross, 1994 201 (BC CA), [1994] B.C.J. No. 971, 44 B.C.A.C. 228, 24 W.C.B. (2d) 185 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 8, 24(2) Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.), ss. 11(2), 12, 15 [as am.], 35 [as am.]

Ian M. Carter, for applicant. Richard Kramer and M. Williams, for respondent.

SIMMONS J.A. (In Chambers): -- 1. Overview

Overview

1The applicant requests leave to appeal a partial sending order made under s. 15 of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) (the "Act") directing that electronic images of the hard drives of two computers be sent to France.

2The applicant is a professor at Carleton University. The two computers that are the subject of the partial sending order are owned by Carleton University but were assigned to the applicant for her use.

3The applicant is not a target of the ongoing French investigation. She claims that two search warrants issued to permit the seizure of the computers were issued in the absence of reasonable grounds as required under s. 12 of the Act and therefore that the partial sending order should not have been made.

4For the reasons that follow, the application for leave to appeal is granted. II. Background

Background

5The applicant is the common law spouse of Hassan Diab. Mr. Diab is a professor at the University of Ottawa and also teaches part-time at Carleton University. France has requested the extradition of Mr. Diab in connection with multiple counts of murder and attempted murder arising from a terrorist bombing in Paris in October 1980. [page163]

6Evidence on the search warrant application indicated that a series of articles published in a French newspaper in the fall of 2007 identified Mr. Diab as the suspected bomber in the October 1980 terrorist attack and that Mr. Diab became aware of the articles.

7In addition to launching the extradition proceeding, the French authorities asked that the RCMP obtain a number of search warrants relating to the ongoing activities of Mr. Diab.

8On November 13, 2008, Maranger J. authorized five search warrants to be issued under ss. 11(2) and 12 of the Act. Acting under those warrants, the RCMP seized, among other things, the applicant's work laptop computer from an Ottawa condominium registered in her name and the applicant's work desktop computer from her office at Carleton University.

9Subsequently, on October 6, 2009, Maranger J. made a partial sending order directing that electronic images of the applicant's two work computers (in relation to which the applicant alone has standing) be sent to France.

10On the application for a partial sending order, the applicant argued that the search warrants for her office and residence could not properly have issued, that the search and seizure was therefore unreasonable and amounted to a breach of her s. 8 Canadian Charter of Rights and Freedoms rights, and that the appropriate remedy was to decline the request for a partial sending order.

11The application judge rejected this argument. Although he said that the grounds supporting a search for the applicant's computers were "layered, requiring context and admittedly borderline", he found it reasonable to believe that "e-mail communications between Mr. Diab and other suspects could be located on [the applicant's computers]".

12In reaching his conclusion, the application judge relied on the following "fundamental information" taken from the affidavit filed in support of the issuance of the warrants: a) Mr. Diab is suspected to be one of the parties responsible for terrorist bombing that occurred on October 3, 1980 at a synagogue in Paris, France. Four people were killed on that date and many others were injured by an explosion. b) Part of the affidavit contains an appendix, which is the French evidence attempting to connect Mr. Diab to the crime. c) Other persons are being sought by the French authorities in connection with the bombings who are believed to have acted in concert with Mr. Diab during this terrorist attack. d) [The applicant] and Mr. Diab shared a residence at 900 Dynes Road in Ottawa and have a spousal type of relationship. [page164] e) [The applicant] is a university professor at Carleton with her own office. Mr. Diab also teaches part-time at the same university. f) That e-mail communications on computers are considered a common method of communicating by terrorist cells. g) That Mr. Diab was now aware that France was going to attempt to extradite him for this terrorist attack.

13In addition, the application judge made an alternative finding that the partial sending order would have been justified even if he had found a breach of the applicant's s. 8 Charter rights. In that regard, he said:

However, in any event, had I found a breach in this case it is certainly not one that would have involved bad faith on the part of the RCMP, and in this matter denying the sending order or excluding the evidence would not have been the appropriate remedy. In the case of a breach of section 8, vis-à-vis [the applicant], she would have lost privacy interests, which would justify some sanctions and a measure of redress. However, she is not a suspect. She is not in jeopardy in a criminal context and the refusal to send copies of information seized from computers would in my view not be justified in any event regardless of my finding relating to the section 8 application. III. The Test for Granting Leave to Appeal

14Section 35 of the Act provides that an appeal lies to this court from an order made under s. 15 of the Act, with leave, on a question of law alone:

35. An appeal lies, with leave, on a question of law alone, to the court of appeal, within the meaning of section 2 of the Criminal Code, from any order or decision of a judge or a court in Canada made under this Act, if the application for leave to appeal is made to a judge of the court of appeal within fifteen days after the order or decision.

15The test for granting leave to appeal under s. 35 of the Act in relation to a question of law alone is that set out in United States of America v. Ross, 1994 201 (BC CA), [1994] B.C.J. No. 971, 44 B.C.A.C. 228 (C.A.) and adopted by this court in National Cheese and Food Co. (Re), 1998 1089 (ON CA), [1998] O.J. No. 1988, 110 O.A.C. 151 (C.A.) and Canada (Commissioner of Competition) v. Falconbridge Ltd., 2003 52144 (ON CA), [2003] O.J. No. 1563, 173 C.C.C. (3d) 466 (C.A.): (a) Is the question raised not settled by authority? (b) Is the question raised of importance generally and, if not of importance generally, it is nonetheless of great importance to a person with a serious interest, such as liberty, at stake? (c) Does the proposition of law put forward have any merit or, to put it another way, does it appear to the judge not to be frivolous? [page165] (d) Are there other discretionary considerations, such as prejudice to either the applicant or the requesting state which are required to be taken into account? IV. Analysis

Analysis

16The question raised on appeal is whether there were sufficient grounds to issue the warrants to search for the applicant's work computers, which were found at her office and at her home. This is a question of law alone: Canada (Attorney General) v. Ni-Met Resources Inc. (2005), 2005 8670 (ON CA), 74 O.R. (3d) 641, [2005] O.J. No. 1169 (C.A.), at paras. 3-4; Canada (Commissioner of Competition) v. Falconbridge Ltd., supra, at para. 8. (i) Is the question raised not settled by authority?

Is the question raised not settled by authority?

17It is common ground that the test for reviewing a warrant issued under the Act was settled in R. v. Budd, 2000 17014 (ON CA), [2000] O.J. No. 4649, 150 C.C.C. (3d) 108 (C.A.), in which this court held that the Garofoli [See Note 1 below] test applies.

18Nonetheless, I agree with the applicant's submission that the fact that the legal test for reviewing a warrant is settled is not determinative of the issue of whether leave to appeal should be granted in this case. The question of law raised is whether the grounds for issuing the warrant were sufficient in this case. In any event, the test for granting leave to appeal has four parts, and each branch must be considered. (ii) Is the question raised of importance generally and, if not of importance generally, it is nonetheless of great importance to a person with serious interest, such as liberty, at stake?

Is the question raised of importance generally?

19The respondent submits that the applicant's privacy interest in the computers seized is so minimal that, even if the search warrants are found to be invalid, a warrantless search would arguably not offend her rights under s. 8 of the Charter.

20The respondent relies on the fact that the computers are owned by Carleton University and not the appellant. Neither party filed evidence relating to the existence of an acceptable use policy for Carleton University professors' use of work computers. However, the respondent contends that I can take judicial notice of the fact that network and business concerns lead employers to develop policies that would preclude an employee from acquiring [page166] an objectively reasonable expectation of privacy in personal data stored on a work computer.

21Further, the respondent points out that the applicant is not a target of the French investigation and that her liberty interest is therefore not at stake. Accordingly, whatever the precise nature of her privacy interest in the computers, the respondent contends that the applicant's interest in the issue raised on appeal cannot reasonably be called a serious one.

22Although the evidence concerning whether the applicant has a reasonable expectation of privacy in the electronic data of the two computers was less than fulsome, I do not accept these submissions.

23The test for determining whether a reasonable expectation of privacy exists is set out in R. v. Edwards (1996), 1996 255 (SCC), 26 O.R. 736, [1996] 1 S.C.R. 128, [1996] S.C.J. No. 11. The factors include: presence; possession or control of the property or placed searched; ownership of the property or place; historical use; the ability to regulate access; the existence of the subjective expectation of privacy and the objective reasonableness of the expectation.

24As I have said, the computers in issue were seized from the applicant's office and home. It does not appear to be seriously disputed that she had the ability to control physical access to the computers.

25Significantly, art. 16.12 of the collective agreement between Carleton University and the Carleton University Academic Staff Association provides that "employees of the Association have a right to privacy in their personal communications and files, whether on paper or in electronic form" and, further, that "personal communications include those that are stored or transferred electronically on university computer systems". The same article states that personal files and communications "are intended to include files respecting or associated with research conducted or proposed by the employee except where governed by the rules of disclosure".

26Although art. 16.12 also refers to "the employer's rights and responsibilities including the need to guard against illegal activities" and "the need to comply with the law or the order of a court", I do not read these provisions overriding as authorizing conduct that would otherwise amount to a breach of s. 8 of the Charter.

27In my opinion, this case is distinguishable from R. v. Cole, 2009 20699 (ON SC), [2009] O.J. No. 1755, 190 C.R.R. (2d) 130 (S.C.J.), on which the respondent relies. That case involved a warrantless search of a computer owned by a school board and issued to a high school [page167] teacher for classroom teaching. Although school board policies allowed incidental personal use of work computers, the acceptable use policy made it clear that network administrators were entitled to open personal e-mail. Further, the network server recorded user's use and access to the Internet. In the circumstances, the court held that the teacher's subjective expectation of privacy was not objectively reasonable.

28I am not prepared to take judicial notice that a similar acceptable-use policy exists in this case. As I see it, the work and research generally done by university professors is qualitatively different than that done by high school teachers and could require a heightened level of personal privacy and security. In the absence of evidence on the subject, I am not prepared to assume that an acceptable use policy exists or that university network administrators were entitled to access the applicant's private e-mails or electronic files or to monitor her Internet usage.

29On the contrary, in my view, the collective agreement referred to above suggests that Carleton University professors are entitled to use their work computers for personal communications and research and that they have an objectively reasonable expectation of privacy in relation to personal electronic data. Moreover, because computers can be used to store large quantities of highly personal information (e.g., banking records, personal contacts, personal communications, etc.), in my opinion, it is at least arguable that the applicant's claim to a reasonable expectation of privacy in her electronic data is a matter of significant importance to her.

30Further, although the claim of a citizen, who is not the target of a foreign investigation, that her reasonable expectation of privacy in personal electronic data has been violated is not on the same level as a liberty interest, in my opinion, it is a very serious interest that justifies further review, provided that her claim is not frivolous.

31Although the application judge concluded that the privacy interests of a person who is not the target of a foreign investigation would not justify declining to make a sending order, in the event the applicant is successful on her primary argument, that will be a further legal issue for the panel hearing the appeal to address. By way of analogy, see the following cases holding that a s. 24(2) Charter analysis raises a question of law, that alternative findings do not attract the usual deference and that this court will on occasion perform the s. 24(2) analysis: R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, at p. 275 S.C.R.; [page168] R. v. Bergauer-Free, [2009] O.J. No. 3340, 2009 ONCA 610, at para. 60; R. v. McKenzie, 2002 45009 (ON CA), [2002] O.J. No. 3029, 167 C.C.C. (3d) 530 (C.A.).

32In my opinion, the question of whether a s. 8 breach against a non-target could justify declining a sending order is a serious issue of general importance. (iii) Does the proposition of law put forward have any merit or, to put it another way, does it appear to the judge not to be frivolous?

Does the proposition of law put forward have any merit?

33I agree with the application judge's observation that the question of whether there was sufficient evidence to justify the issuance of warrants authorizing seizure of the applicant's computers was borderline.

34In addition to the evidence specifically referred to by the application judge, I consider certain other evidence to be significant, for example, evidence indicating that Mr. Diab did not have an office at Carleton University, that he had been observed walking away from the building in which the applicant's office was located, that he had been observed making a number of telephone calls at pay telephones and that he had recently been in touch with his former wife who knew about his past involvement with the alleged terrorist organization on numerous occasions.

35Based on the totality of the evidence, I am inclined to the view that the application judge was correct in holding that it was open to the issuing judge to issue the warrants. Nonetheless, it seems to me that the availability of an inference that it was reasonable to believe that Mr. Diab would use his wife's work computers to make contact with collaborators in the attack is a matter about which reasonable people could differ. I therefore conclude that the proposed legal issue is not frivolous. (iv) Are there other discretionary considerations, such as prejudice to either the applicant or the requesting state which are required to be taken into account?

Are there other discretionary considerations?

36Although Mr. Diab's extradition hearing was scheduled to commence on January 4, 2010, it was adjourned on December 18, 2009 at the request of the respondent and is to be spoken to on February 8, 2010 to set a new date for hearing. Since an appeal hearing for this matter can be scheduled for February 9, 2010, I am not persuaded that France will be prejudiced if leave to appeal is granted. [page169] V. Disposition

Disposition

37Leave to appeal is granted. The appeal is to be perfected by January 12, 2010, responding material is to be filed by January 21, 2010 and the appeal is to be heard February 9, 2010. The appellant shall have 45 minutes for argument, including reply, and the respondent 30 minutes.

Application granted.

Notes

Note 1: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, 60 C.C.C. (3d) 161.