Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20210323 DOCKET: C67369
Rouleau, van Rensburg and Miller JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Freddy Mawick Appellant
Counsel: Jeffery Couse, for the appellant Jeremy Tatum, for the respondent
Heard: January 14, 2021 by video conference
On appeal from the conviction entered by Justice Stephen Glithero of the Superior Court of Justice on January 16, 2019.
Overview
1The appellant was convicted of fraud over $5000 for being party to a scheme that defrauded an elderly man of approximately $150,000. It was not disputed at trial that the fraud occurred. The principal issue was whether the Crown could prove the appellant’s involvement.
2The Crown’s case depended on evidence obtained from the United Parcel Service (“UPS”) and various financial institutions pursuant to production orders issued under s. 487.014 of the Criminal Code, R.S.C. 1985, c. C-46, as well as additional evidence collected without judicial authorization after the production orders had been executed.
3The appellant brought a pretrial application before Sloan J. to have some of the information acquired by the police excluded from trial as having been collected in violation of his rights under s. 8 of the Charter of Rights and Freedoms. He argued that information obtained in violation of s. 8 had been included in the information to obtain (“ITO”) the production orders and should be excised. Once that information was removed, the production orders could not have issued and the resulting evidence was inadmissible at trial. He also maintained that some of the additional information collected by police after the production orders should be excluded from trial, as it was obtained in violation of s. 8.
4In a decision dated August 2, 2018, with reasons reported at 2018 ONSC 4704, the application judge excised some portions of the ITO but left most of the impugned paragraphs intact. With the exception of the excised portions, he held that investigators had not breached the appellant’s s. 8 Charter rights in collecting the information. The application judge then found that the edited ITO still made out reasonable grounds upon which the production orders could have issued. Consequently, all of the evidence obtained pursuant to the production orders was admissible at trial.
5Finally, the application judge concluded that, even if he had found a Charter violation, the breach was minor and he would not have excluded any evidence pursuant to s. 24(2) of the Charter.
6The appellant appeals his conviction on the basis that the application judge erred in failing to exclude the evidence from trial. For the reasons that follow, I would dismiss the appeal.
Facts
7In the fall of 2014, the complainant received a letter advising him that he had won $3.6 million in the lottery. He was instructed by an unknown individual to send bank drafts and certified cheques payable to “Kadeen Fletcher” or “Expetech” in order to pay certain “fees”. He believed that the payments were necessary to claim his lottery winnings. As per the instructions he received, he sent everything through UPS, addressed either to the UPS store at 14-30 Eglinton Avenue West, Toronto, or to 465 Apache Court, Mississauga. In total, the complainant was defrauded of CAD$111,400 and US$36,000.
8The complainant’s daughter eventually convinced him to report the matter to police. Detective Constable Daniel Cimermancic (the “investigator”) was assigned to lead the investigation into the complaint.
9The complainant provided the investigator with a substantial amount of evidence, including copies of bank drafts and certified cheques, bank records, receipts, and tracking information for the UPS packages. Armed with the requisite dates, payee names, and UPS tracking information, the investigator gathered additional information from UPS and other businesses through which the complainant’s financial instruments passed.
10In May 2016, the investigator learned from a UPS representative that certain cheques to be delivered to 465 Apache Court were in fact delivered to 65-455 Apache Court. The investigator determined, based on a Google search, that the address 465 Apache Court did not exist and that 455 Apache Court was a large complex occupying all the odd-numbered addresses on the street. The investigator also learned that an individual had signed for one of the packages as “Kadeem”. The investigator did not have a warrant or production order to obtain this information from UPS.
11The investigator next spoke with Peel Regional Police and learned that both the name “Kadeem Fletcher” and the address 65-455 Apache Court were associated with a person named “Freddy Mawick” who had previously been charged with defrauding the public. The investigator checked Canadian Police Information Centre (“CPIC”) records and determined that a person with the appellant’s name had been convicted of money laundering in British Columbia in 2007 and 2009, and faced various outstanding charges for fraud, counterfeit, and forgery in Ontario.
12On July 20, 2016 the investigator made inquiries with TD bank to trace the accounts into which certain bank drafts had been deposited. The investigator noticed that one of the cheques had the name “Mawik” inscribed on the back.
13The following day, July 21, the investigator spoke with a representative of GTA Financial and Investment Corp., where five cheques had been cashed. The representative informed the investigator that the appellant had cashed five cheques made out to Kadeen Fletcher. The representative also informed the investigator that GTA Financial held certain account records, including a copy of the appellant’s driver’s licence, which could be made available under a production order.
14Also on July 21, 2016 the investigator spoke with a representative of Buduchnist Credit Union after learning that Buduchnist had endorsed a bank draft sent by the complainant. The Buduchnist representative informed the investigator that Buduchnist acted only as a clearing agency, receiving cheques and other instruments from a group of undisclosed clients, including the money service business that had initially cashed the cheque. The investigator asked for the identity of the money service business. The Buduchnist representative responded that its client wished to consult counsel before revealing any additional information.
15Shortly after his conversation with Buduchnist, the investigator received a voicemail message from a lawyer calling on behalf of her client, a money service business called Cash House. The investigator deduced that this must be Buduchnist’s undisclosed money service client. The lawyer stated that Cash House would not speak to police unless a production order could be obtained.
16Following his conversations with the representatives of GTA Financial, Buduchnist Credit Union and Cash House, the investigator filed an ITO seeking production orders directed at six financial institutions, including GTA Financial and Cash House. The ITO included an affidavit setting out the information the investigator had collected from UPS, GTA Financial, Buduchnist, and Cash House, among other sources.
17The production orders issued on August 17, 2016. In response, GTA Financial produced a copy of the appellant’s driver’s licence, a “Master Business Licence” for a company named “Kadeem-Fletcher” whose principal was the appellant, and copies of the complainant’s certified cheques. Cash House did not produce identity documents for the appellant, but rather a passport, social insurance number, and birth certificate for an individual named Osea Kadeem Fletcher.
18On October 26, 2016, roughly two months after filing the ITO, the investigator made further inquiries with Suhaid Azim, the owner of the UPS store at 14-30 Eglinton, and Boris Golan, the operator of a Money Market at which two bank drafts had been cashed. He asked Mr. Azim whether individuals named Freddy Mawick, Freddy Kashit or Kadeen Fletcher had records at the UPS store. Mr. Azim confirmed that all three names were linked to a single record under the name Kadeem Fletcher. Mr. Azim showed the records to the investigator on a computer monitor, including the client’s customer profile, transaction history, and receipts.
19On November 4, 2016 the investigator arrested Boris Golan as a suspected co-conspirator in the fraud. In an interview, Mr. Golan told the investigator that Money Market used Cash House as a clearing service, and that he had previously served an individual named “Freddy”. However, Mr. Golan was unconditionally released when police determined that he had no knowledge of the fraudulent bank drafts. After his release, Mr. Golan voluntarily provided the investigator with identity documents he kept on file for Osea Kadeem Fletcher. The documents matched those produced by Cash House under the production order. Mr. Golan also produced Fletcher’s phone number, which was the same as the appellant’s.
20Nearly one year later, on September 20, 2017 the investigator again visited Suhaid Azim at the Eglinton UPS store to obtain printed copies of the customer profile he had been shown in October 2016. The investigator then contacted the prior owner of the Eglinton UPS store, Andrew Ang, and learned that the appellant had arranged to use the UPS store as a forwarding address in 2013. There, the appellant received packages addressed variously to “Freddy Mawick”, “Freddy Kashit” or “Kadeem Fletcher”.
21The appellant was indicted for fraud on March 1, 2018. A 12-day trial was held in January 2019.
22The main issue at trial was the identity of the individual who had cashed the cheques and bank drafts sent by the complainant. The information collected from UPS, Cash House, Money Market, Buduchnist, GTA Financial and other financial institutions pursuant to production orders was central to tying the appellant to the fraud.
23The appellant’s defence depended on his application under ss. 8 and 24(2) of the Charter to exclude both the information provided by the various businesses without a production order and the evidence obtained pursuant to the production orders. The appellant argued that once the information obtained in violation of s. 8 was excised from the ITO, the GTA Financial and Cash House production orders could not have issued. The principal information he sought to excise from the ITO can be summarized as follows:
- Multiple financial institutions confirmed that fraudulently obtained funds were negotiated through accounts held by the appellant or cashed by the appellant (para. 7);
- According to UPS, two TD certified cheques addressed to Kadeen Fletcher at 465 Apache Court were actually delivered to 65-455 Apache Court. One was signed for by a recipient named “Kadeem” (para. 26);
- Five TD certified cheques were negotiated through GTA Financial. The appellant cashed all five cheques, and he was the only person to cash cheques made out to Kadeen Fletcher. The appellant’s driver’s licence and other account documents were available pending a production order (para. 39);
- The investigator spoke with a representative of Cash House as a result of his conversation with Buduchnist Credit Union. Financial records could be obtained from Cash House following a production order (para. 42).
24The appellant argued that, even without the requested excisions, the ITO did not support the issuance of the Cash House production order as it did not disclose reasonable grounds to believe that Cash House possessed documents that would afford evidence in relation to the offences under investigation.
25The application judge ruled that the investigator’s failure to obtain a warrant or production order for the information he obtained from UPS did not violate s. 8. He found, however, that the appellant had a reasonable expectation of privacy with respect to the financial information held by GTA Financial and that the warrantless collection of that information violated s. 8. As a result, he excised para. 7 of the ITO and three subparagraphs of para. 39 which disclosed that a person named Mawick had cashed five certified cheques at GTA Financial; that he was the only person who cashed cheques at GTA Financial in the name of Kadeen Fletcher; and that “Mawick’s” driver’s licence was on file. With the exception of these excisions, however, the application judge found that there were no breaches of s. 8. The balance of the ITO remained intact.
26The application judge concluded that after the excision of para. 7 and sub paras. a), b) and c) of para. 39, the ITO still supported the issuance of the production orders. As he explained, the remaining information consisted principally of information obtained from financial institutions simply confirming what appeared on the cheques themselves: that the cheques were negotiated through their companies. In other cases, the information consisted of financial information that was not the appellant’s. The application judge admitted both the evidence obtained pursuant to the production orders and the evidence obtained after the production orders for use at trial.
Issues on Appeal
27On appeal, the appellant renews substantially the same arguments he made before the application judge. He argues that:
- The application judge erred in holding that the appellant did not have a reasonable expectation of privacy in the information seized by the investigator from UPS;
- The application judge erred in finding that the ITO disclosed reasonable and probable grounds in support of the Cash House production order;
- The application judge ought to have excluded from the trial information obtained without authorization by the investigator both before and after the production orders were obtained; and
- The application judge mischaracterized the seriousness of the Charter breaches and ought to have excluded the improperly obtained evidence pursuant to s. 24(2) of the Charter.
Analysis
(1) Should the UPS information have been excised from the ITO?
28The appellant argues that the UPS information contained in para. 26 of the ITO ought to have been excised from the ITO and excluded from the trial proper as the information was collected in breach of his s. 8 right to be free from unreasonable search and seizure.
29Paragraph 26 of the ITO reads as follows:
On May 10 and 11, 2016, I contacted UPS customer service to confirm delivery details regarding [the complainant’s] shipments. I learned the following:
a. Two shipments dated December 30, 2014 (TD certified cheque for $23,200 and January 21, 2015 (TD certified cheque for $11,500), addressed to Kadeen FLETCHER at 465 Apache, were actually delivered to 65-455 Apache Court, Mississauga, Ontario. The former shipment was delivered on December 31, 2014 at 9:40 AM, and signed by the recipient as “Kadeem”.
30The appellant maintains that he had a reasonable expectation of privacy in UPS’s business records and, in particular, the information as to where deliveries were sent and who signed for them. He argues that the investigator did not get the name “Kadeem” or the address “65-455 Apache Court” from the complainant, but rather from UPS. Because that information was obtained from UPS without a warrant, its collection violated the appellant’s s. 8 rights, and para. 26 of the ITO, which is based on that information, ought to have been excised.
31I disagree. The complainant used UPS because he was instructed to do so by the appellant or one of his co-conspirators. He was told to take note of the tracking numbers, which he later gave to police. The appellant or a co-conspirator also instructed the complainant to make the cheques out to Kadeen Fletcher and to address the packages to 465 Apache Court. The evidence is that anyone with the tracking numbers could access the UPS website or call its customer service line, track the deliveries to their final destinations, and learn the name of the person who signed for each delivery. Indeed, the investigator testified at trial that the tracking numbers permitted him to make inquiries both online and with customer service representatives at UPS in respect of individual deliveries. It was during one of these conversations that a UPS representative informed him that certain packages addressed to 465 Apache Court had been delivered to 65-455 Apache Court, and that at least one recipient had signed as “Kadeem”. All of the information obtained from UPS, whether through the company’s website or in conversation with customer service representatives, was obtainable with the complainant’s tracking numbers.
32As the application judge observed, the relationship between the appellant and UPS was simply that of a customer obtaining a service offered by UPS in the ordinary and routine business sense. In these circumstances, there is no basis for finding that the police violated the appellant's s.8 rights by accessing that readily available information. Any expectation of privacy the appellant may have had in his home address or the name “Kadeem” was waived by directing the complainant to use UPS and its tracking system to make deliveries to that name at that address. The application judge did not err when he refused to excise para. 26 of the ITO, nor when he admitted the information obtained from UPS for use at trial.
(2) Did the ITO support the issuance of the Cash House production order?
33The appellant argues that the Cash House production order could not have issued even in the absence of the requested excisions. The relevant references to Cash House in the ITO are as follows:
On August 4, 2016, I spoke with Rachel GRINBERG, counsel for Cash House, as a result of my earlier contact with Roma BEREZA of Buduchnist Credit Union on July 20, 2016. (note I had inquired with BEREZA about TD bank drafts 0753712 for $6,000 USD and 0753736 for $12,000 USD, both of which were payable to Kadeen FLETCHER. Buduchnist’s stamp was on the rear side of the drafts. Buduchnist was the clearing agency only, while an undisclosed money service client of Buduchnist negotiated the cheque) . I learned the following from GRINBERG: a. GRINBERG did not provide contact information for Cash House, but advised that financial records could be sought by sending her a production order to forward to her client.
On August 4, 2016, I conducted a ‘Google’ internet search of ‘Cash House’ which revealed that the owner of Cash House, Carlo DeMARIA, was charged by Toronto Police Service in 2014. On August 9, 2016, I followed up and received the case synopsis from the investigator Constable Sarath THAYALAN. I learned the following: a. DeMARIA was the recipient of a production order in March 2014 directing him to produce records to police, which he later did, but some records were falsified. b. DeMARIA was charged with 10 criminal charges, including public mischief X 2, fabricating evidence, obstruct peace officer and laundering proceeds of crime.
Upon granting of this application for a Production Order, the institutions named below will be directed to produce the documents and information listed below. I believe the documents and information will afford evidence in court that the misappropriated funds have been converted into the possession of MAWICK, [REDACTED] and possibly other suspects. I am requesting the following: a. Cash House (2 bank drafts for $6,000 USD, dated October 9 and 23, 2014, payable to “Kadeen Fletcher” respectively, were presumably cashed since Cash House is a money service business).
34These passages, the appellant submits, do not provide a basis to believe a production order executed against Cash House could provide any evidence that the appellant had committed fraud.
35In my view, this ground of appeal must fail.
36Production orders are presumed valid and properly issued: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 83-84. When the validity of the order is confirmed by a reviewing judge, that ruling is entitled to deference on appeal: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 22.
37In order to issue a production order under s. 487.014(2) of the Criminal Code, the judge or justice making the production order against a person must be satisfied that there are reasonable grounds to believe: (a) an offence has been or will be committed, and (b) the document or data is in the person’s possession or control and will afford evidence respecting the commission of the offence.
38The appellant does not dispute that the ITO made out reasonable grounds to believe that a fraud had been committed, satisfying the first condition under s. 487.014(2)(a). The appellant disputes only whether the requirement in s. 487.014(2)(b) is made out: that the documents or data in the person’s possession or control will afford evidence respecting the commission of the offence. In his factum, the appellant writes: “The paragraphs excerpted above do not provide any basis to believe a production order on Cash House would provide any evidence that the Appellant had committed fraud”.
39Contrary to the appellant’s submission, the Crown need not satisfy the issuing judge or justice that there are reasonable grounds to believe that the record holder has documents that will afford evidence against the appellant. The test is not so narrowly framed: See R. v. P.W., 2020 ONCA 301, at para. 30; R. v. Vice Media Canada Inc., 2017 ONCA 231, at para. 28, aff’d 2018 SCC 53, [2018] 3 S.C.R. 374.
40Section 487.014(2)(b) only requires the affiant to show reasonable grounds to believe that a production order will afford evidence “respecting the commission of an offence”. As Dickson J. stated in Nowegijick v. The Queen, [1983] 1 S.C.R. 29, the term “in respect of”, which I would liken to the word “respecting”, is “probably the widest of any expression intended to convey some connection between two related subject matters”: at p. 39. In R. v. P.W., this court explained, albeit in the context of a search warrant, that the ITO need only provide grounds for believing that the record holder has documents or data “relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability”: at para. 30, citing CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, at para. 15. Put simply, there was no requirement to establish that the Cash House production order would afford evidence against the appellant directly.
41The impugned paragraphs of the ITO set out the context for the investigator’s belief that Cash House held evidence respecting the commission of the offence. At para. 42 of the ITO, the investigator indicates that he first contacted Buduchnist Credit Union to discuss bank drafts bearing Buduchnist stamps. He learned that Buduchnist acted as a clearing agency for other undisclosed money service clients. The ITO indicates that the investigator spoke with Cash House “as a result” of his contact with Buduchnist and that the production order would produce information related to two bank drafts which were “presumably cashed” at Cash House.
42Although the ITO does not fully describe how the investigator concluded that Cash House was Buduchnist’s undisclosed money service client, the inference that it was a result of what he learned from Buduchnist is reasonably available. While the investigator could have more clearly articulated the basis for his inference that documents in the possession of Cash House would afford evidence respecting the commission of the offence, it was open to the issuing justice, as well as the application judge, to conclude that the investigator had reasonable grounds for his belief. Given the presumption of validity of production orders and the deference owed to the application judge, I see no basis to interfere. It follows that the evidence obtained pursuant to the Cash House production order was properly admitted.
43The Crown made the alternate submission that the appellant lacks standing to challenge the Cash House production order because Cash House produced documentation about an individual named Osea Kadeem Fletcher rather than the appellant. In response, the appellant argues that, on the investigator’s theory of the case at the time, Kadeem Fletcher and the appellant were the same person. If the police believed that “Fletcher” was the appellant’s alias, then they should have treated “Fletcher” accounts with the same respect for the appellant’s privacy as they would an account under the name “Mawick”. In this sense, the appellant seeks to rely on the police’s working theory of the case in a manner similar to the appellant’s arguments in R. v. Jones, 2017 SCC 60, 2 S.C.R. 696.
44I agree with the Crown’s submissions on standing and would reject the appellant’s argument that he had a reasonable expectation of privacy in the Kadeem Fletcher accounts. As this court stated in R. v. Labelle, 2019 ONCA 557, 379 C.C.C. (3d) 270, at para. 31, Jones permits the appellant to rely on the Crown’s theory of the case to “establish certain facts relevant to [the] s. 8 claim”. For instance, the appellant might use the Crown’s theory to argue that the Fletcher account should be treated as his own for the purposes of the analysis. However, the Crown’s theory alone is not sufficient to gain standing: “[t]he trial judge is still required to assess those facts in the ‘totality of the circumstances’ to determine whether the accused had a reasonable expectation of privacy”. In this case, the appellant provided no evidence addressing his subjective expectation of privacy in the Cash House documents, nor the objective reasonableness of that expectation. The appellant simply has not met his burden on the s. 8 application.
(3) Was the information assembled by the investigator without judicial authorization before and after the production orders in breach of the appellant’s s. 8 Charter rights?
45The appellant argues that evidence obtained by the investigator from various financial institutions and UPS, both before and after the issuance of the production orders, violated his s. 8 Charter rights and should have been excluded from the trial. The appellant maintains that he had a reasonable expectation of privacy in the financial and personal information held by the various institutions, and judicial authorization was necessary for this information to be disclosed to the police.
46In oral submissions, the appellant placed particular emphasis on the information obtained from Money Market and from the UPS store at 14-30 Eglinton. I will address these first before turning to the appellant’s broader challenge to the information collected from the other financial institutions.
(a) Money Market Information
47In my view, the appellant does not have standing to challenge Money Market’s production of records. The records obtained from Money Market following the brief arrest and release of its operator, Mr. Golan, were for an account held by Osea Kadeem Fletcher. The appellant was not the owner of the account information, nor did he have any independent means of controlling or accessing the information. The appellant did not testify or offer any evidence of his having a subjective expectation of privacy in that account. Nor did he explain how it would be objectively reasonable to find that he had a reasonable expectation of privacy over someone else’s account.
48On the evidence, the appellant was no more than someone that Fletcher, the holder of the account, had authorized to collect and cash cheques. There is no suggestion that the appellant had any means of controlling access to the information contained in the account.
49In any event, the admissibility of the Money Market evidence is not determinative of the appeal. As noted above, the evidence obtained without judicial authorization from Mr. Golan and Money Market was the same as the evidence obtained from Cash House pursuant to the production order. The appellant conceded in oral argument that if this court found, as I have, that the Cash House evidence was properly admitted, then the admissibility of the Money Market evidence would no longer bear on the verdict because the evidence would be admitted one way or the other.
(b) The UPS Information
50After the production order, but not pursuant to its terms, the investigator obtained additional information from the UPS store at 14-30 Eglinton Avenue West. This consisted of confirmation that UPS had an account for Kadeen Fletcher and that the names Freddy Mawick and Freddy Kashit were attached to that account. The investigator also contacted the former owner of the UPS store and was informed that the appellant had packages and envelopes couriered to the UPS store as a forwarding address and that packages addressed to Kadeen Fletcher were picked up from the store by the appellant.
51I agree with the application judge’s conclusion that, considering the totality of the circumstances, the investigator’s receipt of information and records from UPS did not offend s. 8 of the Charter. The appellant had no reasonable expectation of privacy in the information collected. Some of the circumstances negating any reasonable expectation of privacy are as follows:
- The uncontradicted evidence is that it was Kadeen Fletcher who had the account at the UPS store. The names of Freddy Mawick and Freddy Kashit were simply names attached to that account;
- The appellant did not testify or file a copy of UPS’s service agreement or privacy policy on the voir dire;
- The records disclose that by January 2015, UPS had flagged possible fraudulent activity in the Kadeen Fletcher UPS account; and
- The appellant and his co-conspirators directed the complainant to use UPS to send deliveries to the UPS store at 14-30 Eglinton Ave. West in Mississauga or to 465 Apache Court. The appellant and his co-conspirators must have known that UPS would retain customer and accounting records as well as records relating to persons picking up or receiving shipments.
52As the appellant had no reasonable expectation of privacy there can be no breach of s. 8.
(c) Other information collected from financial institutions
53The appellant argues that after finding that he had a reasonable expectation of privacy in his financial affairs, the application judge erred by admitting into evidence the financial information collected by the investigator. The appellant points in particular to the information obtained from GTA Financial indicating that the appellant had an account and that a copy of his driver’s licence was on record. This information was struck from the ITO as a violation of the appellant’s s. 8 rights, but it was nonetheless admitted at trial.
54I would not give effect to this ground of appeal. Other than the information properly obtained pursuant to the production orders, the information collected by the investigator was either information over which the appellant had no reasonable expectation of privacy, as I have described, or it was financial information provided to the investigator by the complainant. The complainant’s information, which included cancelled cheques, bank drafts and UPS information, disclosed the identity of certain payees and banks that negotiated the instruments. That information was part of the fraud, and it was revealed to the complainant in the course of the fraud. As the application judge explained, this was the appellant’s “trail of breadcrumbs”. No judicial authorization was required for its collection by the investigator.
55I also see no error in the application judge’s approach to the information obtained from GTA Financial. The application judge determined that the investigator’s initial contact with representatives of GTA Financial breached the appellant’s s. 8 rights, and he duly excised the resulting information from the ITO. That was the correct remedy: R. v. Grant, [1993] 3 S.C.R. 223. The application judge then found that the production order was properly issued after the improperly obtained facts were excised. Consequently, the evidence obtained pursuant to the production order, which included some of the information previously excised from the ITO, was properly admitted at trial. This is not a case of the sort considered in Grant or, more recently, R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, in which an initial warrantless search taints a subsequent warranted search.
(4) Did the application judge err in his s. 24(2) analysis?
56The application judge found that if there had been any breaches of s. 8, they were minor and the information should nonetheless be admitted into evidence. The appellant argues that the application judge erred in so finding. He submits that the entirety of the investigation as it related to the appellant was the direct result of repeated Charter-infringing conduct. The seriousness of the breaches and their central role in the investigation and conviction of the appellant highly favour exclusion.
57I disagree. Although I have concluded that none of the s. 8 breaches alleged on appeal are made out, I agree with the application judge’s s. 24(2) analysis and his conclusion that, even if there were breaches of the appellant’s s. 8 rights, they were minor, and the evidence ought not to be excluded.
58The information derived from UPS tracking numbers was obtained or obtainable by the complainant based on information provided by the appellant. The information obtained from the financial institutions was obtained pursuant to production orders which, as discussed, were validly issued. Even accepting that there was a reasonable expectation of privacy in some of the information obtained by the investigator without authorization, all of that information was either properly obtained from other sources, or it was information that was in any event discoverable. In short, the Charter-infringing conduct – if there was any – was not serious and its impact on the appellant’s privacy interest was slight.
59By contrast, society’s interest in having the case adjudicated on its merits is strong in light of the seriousness of the fraud. The documents that the appellant seeks to exclude were central to the case, and the evidence collected by DC Cimermancic in the course of his investigation is reliable. As a result, I agree with the application judge’s determination that exclusion would tend to bring the administration of justice into disrepute and that, if there was a breach, the information ought nonetheless to be admitted. The application judge’s findings and conclusions are owed deference on appeal and I see no basis to interfere.
Conclusion
60For these reasons, I would dismiss the appeal.
Released: March 23, 2021 “P.R.” “Paul Rouleau J.A.” “I agree K. van Rensburg J.A.” “I agree B.W. Miller J.A.”
