Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Neil William Foster
Before: Justice Roselyn Zisman
Heard on: August 14, November 8 and 15, 2013
Reasons for Ruling released on: December 17, 2013
Counsel
Sean Bradley — counsel for the Crown
Cherif Ghobrial — counsel for the defendant Neil William Foster
ZISMAN J.:
Ruling on Section 8 Application to Exclude Evidence Obtained as a Result of a Production Order Pursuant to Section 487.012 of the Criminal Code
Introduction
1The defendant is charged that on September 5, 2011 he committed the offences of fraud over $5,000 and public mischief contrary to sections 380(1)(a) and 140(1)(c) of the Criminal Code. It is alleged that he falsely reported his motor vehicle stolen to his insurance company and the police and that he received insurance proceeds of about $17,500. It is alleged that he was actually involved in a fail to remain motor vehicle collision.
2As a result of the police suspicions that the defendant has submitted a false report, a production order was obtained, pursuant to section 487.012 of the Criminal Code, by the authorizing justice of the peace, for the cellphone records of a cellphone registered to the defendant's then girlfriend, Abigail Coloma, but used by the defendant.
3As a result of the information disclosed on those records the defendant was arrested for committing the offences of fraud over and public mischief.
Position of the Parties
4It is the position of the defendant that the justice erred in granting the production order of Ms. Coloma's cell phone records, as the Information to Obtain ("ITO") did not disclose an objectively reasonable basis for believing that an offence had been committed or was suspected of being committed by the defendant as required by section 487.012 the Criminal Code.
5It is submitted that the defendant had a reasonable expectation of privacy despite the fact that he was not the registered owner of the cellphone as he used the cellphone.
6The defendant therefore submits that the production of the cellphone records contravened section 8 of the Charter and should be excluded pursuant to section 24(2).
7It is the position of the Crown that the defendant did not have a reasonable expectation of privacy in the cell phone records of a third party and therefore he does not have standing to advance a section 8 challenge.
8If the court finds that the defendant did have an expectation of privacy in the cellphone records of a third party, it is the Crown's position that on the totality of the information the ITO contained reliable facts capable of satisfying the standard of "reasonable grounds to suspect". It is submitted that the defendant is applying the wrong standard of "reasonable grounds to believe" and that the evidence on the voir dire did not raise any doubt on the foundation of the ITO and the application should therefore be dismissed.
Background Facts
9On September 5, 2011 at about 9:30 a.m. the defendant's girlfriend, Abigail Coloma placed a call to the Halton Regional Police Services to report a car stolen. As Ms. Coloma was not the registered owner of the car, the defendant immediately was put on the phone and filed the report. He advised that his car, a 2006 Lexus ES430 had been stolen from the driveway of his residence at M[…] Drive in Milton. He advised that his home telephone number was his cell number XXX-XXX-XXXX.
10Prior to attending at the defendant's residence, the Halton police had been advised by the Ontario Provincial Police ("OPP") that the defendant's motor vehicle had been located, abandoned near Stayner, Ontario. The OPP advised that there was front end damage to the vehicle and they believed the vehicle had been involved in a fail to remain collision. The doors of the vehicle were locked, the ignition was not tampered with and there were several items in the vehicle in plain view namely, a gold chain with two crosses, compact discs, beer caps and loose change.
11Constable Rotsma attended at the home at about 10:00 a.m. and spoke to Ms. Coloma who advised she wanted to make the report as the defendant was not feeling well and was sleeping. After being told that the defendant needed to make the report, Ms. Coloma returned with the defendant several minutes later. Constable Rotsma noted that the defendant showed signs of intoxication, he appeared tired, had red-rimmed eyes and there was a strong odour of mouth wash.
12The defendant told Constable Rotsma that he had parked his vehicle in the driveway at about 1:00 a.m. on September 5th, 2011 after he and Ms. Coloma had returned from a night out at Moxie's and then Dave and Busters in Woodbridge, in the City of Vaughan. They shared a bottle of wine and went to bed.
13The defendant told Constable Rotsma that when he went outside at about 9:00 a.m. on September 5th, 2011 he discovered his car missing from the driveway.
14Constable Rotsma noted that there was no physical evidence relating to the theft of the motor vehicle and the defendant advised that he had the only two sets of keys to the vehicle.
15Based on what he perceived as suspicious circumstances, Constable Rotsma cautioned the defendant that if he was making a false report he could be charged with public mischief. The defendant denied that he was making a false report.
16Constable Rotsma testified that the defendant went inside the house and he spoke to Ms. Coloma who stated that, in reference to the fail to remain at the scene of an accident, "maybe it would be easier if we just got a ticket…not saying he did it, he was drinking with me at Dave and Buster's, but it seems easier". The defendant, who testified on the voir dire, denied that Constable Rotsma was ever alone with Ms. Coloma and therefore disputes that this remark was ever made.
17On September 6th, 2011 the defendant contacted Constable Rotsma and advised that he had attempted to locate his spare key and discovered it was missing from a drawer where the key was usually kept.
18When questioned by Constable Rotsma about who may have taken the key, the defendant stated that he did not have anyone specific in mind but that he slept with many women and one of them, while in his residence, may have taken the key and taken his car to get back at him. The defendant refused to name anyone specifically as he did not want to get anyone in trouble.
19The defendant confirmed that the cellphone number he used, XXX-XXX-XXXX belonged to his girlfriend, Ms. Coloma but that he used the phone.
20Constable Strauch was assigned to investigate the circumstances surrounding the theft of the defendant's motor vehicle. Constable Strauch had obtained information from the police intelligence unit that the cellphone XXX-XXX-XXXX belonged to Abigail Coloma. He also confirmed that records existed for this cellphone number between the dates of September 4th to 8th, 2011.
21Constable Strauch confirmed that the defendant had been paid an insurance settlement of $17,394.36.
22On November 7th, 2011 the defendant attended at the request of the police where he was interviewed by Constable Strauch and provided a cautioned videotaped statement regarding the theft of his motor vehicle. Constable Strauch discovered after the interview that the audio equipment was not working and he then made detailed notes of the interview.
23According to Constable Strauch the defendant repeated the sequence of events previously told to Constable Rotsma. When asked about having to be woken up by Ms. Coloma when police arrived to take a report about his car being stolen, he stated that he was "hung over and stressed out" about his car being stolen.
24During the interview, the defendant advised that the phone number in question was in his girlfriend's name but that it was his. The defendant was asked that if hypothetically he had crashed his car up north, would he have called a tow truck or someone to pick him up and he indicated he might have done so.
25When questioned about the suspicious circumstances as to how his vehicle was discovered locked, having front end damage consistent with veering off the roadway while possibly impaired, numerous valuables in the vehicle, the defendant replied that he did not believe his vehicle being stolen was a "typical theft".
26Constable Strauch obtained a production order pursuant to section 487.012 of the Criminal Code for cellphone number XXX-XXX-XXXX. The production order results revealed that from September 5th at 00:52:11 until 09:19:09 hours which was the time the defendant contacted the Halton Regional Police to report his motor vehicle stolen; cellphone number XXX-XXX-XXXX sent or received approximately 50 text messages. Further, that the cellular telephone made a 34 second call that "pings" off a Bell cellular tower site located at M[…] Street in Wasaga Beach, approximately 20 kilometres from where the defendant's vehicle was located.
27The defendant was interviewed again on February 9, 2012 subsequent to the police obtaining the cellphone records. This interview was video and audio taped. During this interview the defendant changed his evidence with respect to the use of the cellphone and stated that he and his girlfriend shared the phone and they both used it.
28When further questioned about his possible use of the cellphone number XXX-XXX-XXXX on the evening of September 4th, 2011 to September 8th, 2011 when he claimed his motor vehicle was stolen, he invoked his rights to counsel.
29As a result of this information the defendant was arrested.
30The defendant testified on the voir dire. He testified that the cellphone was registered in Ms. Coloma's name as he had bad credit rating and could not obtain his own phone, that he used that phone and he had no other phone number. When cross-examined on the statements he made about the cellphone during the interview on February 9, 2012, namely, that it was Ms. Coloma's cellphone and they shared it he admitted that he played with semantics and several times stated that he made an "incorrect statement" during that interview.
Legislative Authority
31Section 487.012 reads in part as follows:
487.012(1) A justice or judge may order a person, other than a person under investigation for an offence referred to in paragraph 3(a) [includes Criminal Code offences],
(a) to produce documents, or copies of them certified by affidavit to be true copies, or to produce data; or
(b) to prepare a document based on documents or data already in existence and produce it.
(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to believe that
(a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed;
(b) the documents or date will afford evidence respecting the commission of the offence; and
(c) the person who is the subject to the order has possession or control of the document or data.
The Privacy Right Guaranteed by Section 8 of the Charter
32Section 8 of the Charter guarantees protection from unreasonable searches. The case law is clear that the protection of individual privacy must be balanced by the need to achieve social protections. The need for this balance was enunciated by Justice Binnie in R. v. Tessling, 2004 SCC 67, at para. 17:
At the same time, social and economic life creates competing demands. The community wants privacy but it also insists on protection. Safety, security and the suppression of crime are legitimate countervailing concerns. Thus s. 8 of the Charter accepts the validity of reasonable searches and seizures. A balance must be struck.
Justice Binnie in Tessling cited Hunter v. Southam Inc., 1984 CanLII 33 (SCC), where at page 159 Dickson J. stated that "such balancing between individual rights and social or governmental goals means: the guarantee of security from unreasonable search and seizure only protects a reasonable expectation."
On a section 8 motion, the onus is on the defendant to establish that he had a reasonable expectation of privacy on a balance of probabilities. The totality of circumstances must be examined in order to assess whether or not the defendant had a subjective expectation of privacy and that the expectation was subjectively reasonable. An examination of the form of the privacy must also be examined. While privacy of the person and presumption of bodily integrity attracts the most serious expectation of privacy (See R. v. Tessling, supra at para. 21), other forms of privacy including biographical or informational privacy is also protected by section 8.
33In R. v. Plant, 1993 CanLII 70 (SCC), the court considered the issue of informational privacy and held that, "it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state".
34I adopt the reasoning by Justice Ferguson in R. v. McInnis, [2007] O.J. No. 2930 (S.C.J.) that the provisions of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 have created a privacy interest in phone records. The statute creates a duty on providers to keep all personal information confidential. As the information collected with respect to cellphone numbers is related to the subscriber, the Act creates an objective expectation of privacy for the subscriber. Further, as noted in R. v. McInnis, supra, parliament has added s. 492.2 to the Criminal Code that provides that a search warrant type process to justify installation of number recordings capturing some of the information available from cellphones providers and for production orders for telephone numbers. This also suggests that parliament has considered that individuals have a privacy interest in such information.
35Justice Watt, speaking for the court, in R. v. Mahmood, 2011 ONCA 693, recognized the same interest of privacy by the enactment of s. 492.2 and at paras. 130 and 131 stated as follows:
The very existence of s. 492.2 could be taken as some evidence that a reasonable expectation of privacy exists for information gathered by number recorder or by production of telephone records. After all, Parliament felt it necessary to enact the section to provide for number recorder warrants under s. 492.2(1) and for production orders for telephone records under s. 492.2(2). Thus Parliament must have been concerned about the prospect of a constitutional infringement in the absence of such warrants. But it is also worth remembering that the standard to be met for the order is reasonable suspicion, a standard less than reasonable grounds, advocated as the general rule in Hunter and more reflective of a lessened expectation of privacy as was noted in Simmons.
In the result, although I am satisfied that a reasonable expectation of privacy does attach to the records obtained under the subscriber warrants, the expectation is one that is significantly reduced: M.(B.), at para. 62.
36The overwhelming and ubiquitous use of cellphones, the advance cellphone technology and the extent of information that can be obtained about cellphones and the people who use them may permit such information to reveal personal information and biographical information about the users such as the identification of movement, who the person associates with and the frequency of such contact.
37The privacy interest in cellphone records has just recently been further reinforced by the Supreme Court of Canada in the case R. v. Vu, 2013 SCC 60, wherein the court stated that it was not distinguishing between searches of computers and cellphones and that any reference to computers in the judgment encompassed cellphones (para. 38). The court states that, "it is difficult to imagine a more intrusive invasion of privacy that the search of a personal or home computer".
38In R. v. Edwards, 1996 CanLII 255 (SCC), Cory J., writing for the majority, summarized the principles that ought to be considered in assessing whether an individual had a reasonable expectation of privacy such that the possibility of a s. 8 violation could be explored. He provided the following guidelines at para. 45:
A claim for relief under s. 24(2) can only be made by the person whose Charter Rights have been infringed.
Like all Charter rights, s. 8 is a personal right. It protects people and not places.
The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated
As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy? Second, if he has such an expectation, was the search by police conducted reasonably?
A reasonable expectation of privacy is to be determined on the basis of the totality of circumstances.
The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:
(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or items;
(v) the ability to regulate, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy;
(vii) the objective reasonableness of the expectation.
- If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.
39As stated in R. v. Edwards, supra, the court is required to examine the totality of the circumstances to determine if the defendant in this case has a privacy interest sufficient to give him standing to object to the evidence being admitted. The factors listed in that case appear to be more relevant to an examination where the privacy is claimed in the place rather than in information but nevertheless must be examined in relation to the facts of this case.
40The first three factors relate to a person's presence at the time of search, possession or control of the property being searched or ownership of the property being searched are not relevant or particularly helpful as in this case the search relates to electronic cellphone records that are stored anywhere.
41The historic use is relevant. In this case, I agree with the Crown that the defendant changed his testimony to suit his interests. In his second interview with the police, subsequent to the police having obtained the cellphone records, the defendant no longer stated that he had primary use of the cellphone registered in his girlfriend's name. But on the voir dire the defendant reverted to his statements, made when initially investigated, namely that the cellphone was primarily used by him.
42Despite the defendant's statements to the contrary in his second interview with the police, I find that there is ample evidence to confirm that the defendant used the cellphone registered in his girlfriend's name as if it was his own. The cellphone number was the telephone number called from to report the alleged theft of his motor vehicle, it was the number the defendant left for the police to contact him and the number that the police used to contact him. The defendant did not have another telephone number and initially advised the police that the telephone was his, he was the primary user of the cellphone and it was only in his girlfriend's name because he had a poor credit rating.
43The factor of the ability of a person to exclude someone from the place being searched is not a relevant factor with respect to cell phone records as a subscriber cannot enter the offices of the service provider.
44Excluding someone from access to data is a relevant factor. In the case of cellphone records, the subscriber is protected as the statute provides that the information is only accessible by the subscriber. But the fact that a subscriber receives an account, typically with only information about total minutes used, the amount owing and perhaps details of long distance charges, is not the type of detailed information at issue in this case and would not be considered a waiver of any privacy interests.
45The factors of a subjective and objective expectation of privacy are relevant factors. Based on the totality of the evidence, I find that the defendant was the primary user of the cellphone and expected that his privacy interests were protected. Even if the evidence only established that the defendant used his girlfriend's cellphone with her consent, on a regular but not exclusive basis, I would still conclude that he had a subjective and objective expectation of privacy.
46I find that the defendant has established that he had a reasonable expectation of privacy and therefore he has standing to ask the court to exclude the cellphone information collected by the service provider for the cellphone registered in his girlfriend's name.
Did the Search Violate the Defendant's Section 8 Charter Rights?
47The defendant's counsel relied on the decision of Woodroffe v. Peel (Regional Municipality) Police, [2006] O.J. No. 1175 (S.C.J.) where the court examined the standard of the information to obtain a production order pursuant to section 487.012 of the Criminal Code. In that case the court confirmed that the provisions for the issuance of a production order under s. 487.012 were similar to those for the issuance of a search warrant under s. 487 namely that the information must establish reasonable grounds to believe that an offence has been or is suspected to have been committed and that the documents or data, (in the case of a production order), or anything described in s. 487(1)(a), (b), or (c), (in the case of a search warrant), will afford evidence respecting the commission of an offence. The court states at paras. 37 to 41:
37 There is a dearth of jurisprudence in relation to the interpretation and application of the provisions of s. 487.012. However, as it is housed in the same section of the Criminal Code as the provisions applicable to search warrants, I agree with counsel that some assistance may be obtained from decisions involving the issuance of search warrants. In a recently released decision, Glithero J. expressed a similar view. (R. v. Dunphy, [2006] O.J. No. 850 at paras. 36-37). I adopt it.
38 The provisions for the issuance of a production order under s. 487.012 are similar to those for the issuance of a search warrant under s. 487. Both sections require an information to be presented to a justice or a judge under oath.
39 Both sections require that the information establish reasonable grounds to believe that an offence has been or is suspected to have been committed and that the documents or data, (in the case of a production order), or anything described in s. 487(1)(a), (b), or (c), (in the case of a search warrant), will afford evidence respecting the commission of an offence.
40 Reasonable grounds should not be equated with proof beyond a reasonable doubt or a prima facie case. 5 Section 487 sets out a code of procedure which requires a demonstration of credibly based probability before the material can be seized. 6 By its terms, s. 487 precludes the granting of a search warrant for the purposes of a fishing expedition or on the basis of mere suspicion. 7
41 A peace officer who swears an information must personally or subjectively believe in the accuracy and credibility of the grounds for belief. Lawful issuance of a search warrant also requires that the peace officer establish objectively that reasonable grounds in fact exist. The question that must be asked is: Would a reasonable person, standing in the shoes of the peace officer, have believed that the facts probably existed as asserted and have drawn the inferences therefrom submitted by the peace officer? 8 There is no apparent reason why the issuance of a production order should not be held to the same standards established for the issuance of a search warrant.
48The defendant's counsel also relied on the trial decision of Justice Quigley in R. v. Mahmood, 2008 CanLII 51774 (ON SC), wherein in examining the basis for the police obtaining a warrant under s. 487 of the Criminal Code for tower dump and subscriber warrants he stated at para. 85 that, "Our Courts have repeatedly held that 'mere suspicion" does not amount to reasonable and probable grounds. It is colloquially said that a warrant is not a fishing license and it cannot authorize fishing expeditions." However, the court goes on to consider that the police could have applied to obtain subscriber records under s. 492.2(2) of the Criminal Code on the basis of a mere reasonable suspicion basis.
49In the appeal of that decision to the Ontario Court of Appeal, Justice Watt, at para. 113 noted that the lower threshold in s. 492.2 of Criminal Code of "reasonable grounds to suspect" is less exacting than "reasonable grounds to believe" that is required by a conventional search warrant. He outlined the standard as follows:
In the search context, a "suspicion" has been characterized as an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable suspicion" means something more than a mere suspicion and something less than a belief based on reasonable and probable grounds. A sincerely held subjective belief is not a reasonable suspicion. To be reasonable, a suspicion must be supported by factual elements about which evidence can be adduced and permit an independent judicial evaluation: R. v. Kang-Brown, 2008 SCC 18, at para. 75; R. v. Simpson, 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182 (C.A.) at p. 202.
50However, it is clear that prior to issuing a warrant under section 487.012 the issuing justice must be satisfied that there are reasonable grounds to believe that the object of the search will afford evidence with respect to the commission of an offence. The references to section 492.2 in R. v. Mahmood, supra, both in the trial and appellate decisions, were in the context of considering that if the information in the ITO could not support the issuance of a warrant under section 487 but could sustain a telephone record production order under section 492.2(2) whether or not the records be admitted pursuant to section 24(2) of the Charter.
51It is submitted by the defendant that the information in the ITO was not sufficient to establish that there were reasonable grounds to believe that an offence had been or was suspected of being committed.
52It is submitted that Constable Strauch did not conduct a thorough investigation and he simply had an educated guess that the defendant's motor vehicle had not been stolen. Counsel submitted that Constable Strauch did not ask the defendant or Ms. Coloma if either of them had a cellphone with them on the evening of September 4th and he did not attempt to determine if the defendant's car had an automatic locking device. Further it is submitted that Constable Strauch did not check to see if there was video surveillance at Moxie's where the defendant and Ms. Coloma stated they were earlier in the evening as the video Constable Strauch obtained from Dave and Buster's was not clear enough to confirm they were at that establishment that evening and he did not attempt to re-interview Ms. Coloma. It is submitted that there was no evidence to place the defendant or the cellphone in the vicinity of where the defendant's motor vehicle was located.
53The reviewing judge does not substitute his or her view for that of the justice who issues the warrant. Rather the reviewing judge considers the record before the issuing justice, as amplified on review, and determines whether the authorization could have issued. (R. v. Garofoli, 1990 CanLII 52 (SCC), at p. 1452).
54Accordingly, I do not accept the defendant's submission that the police had to follow all other investigative methods before an application was made for a production order.
55The test to be applied is whether or not Constable Strauch, in applying for the production order pursuant to s. 487.012 had reasonable grounds to believe that the defendant was possibly engaged in some criminal activity.
56In this case I find that there were reasonable grounds to suspect that the offences of fraud over $5,000 and public mischief had been committed based on the following:
a) the defendant's car was locked and not tampered with;
b) the contents of the car that were in plain view were not disturbed;
c) there was no physical evidence of theft of the defendant's car in his driveway;
d) Ms. Coloma's comments that the issuance of a ticket to the defendant would make things "easier";
e) the defendant's appearance on the morning of the report appearing tired, red rimmed eyes and with the strong odour of mouthwash;
f) the defendant's explanation in his first interview with the police that he was "hung over and stressed" because of the theft of his motor vehicle;
g) the defendant initially stating that he had the only two sets of keys to his car and then the next day alleging that the spare key was missing from a drawer in his house;
h) the defendant's refusal to name any suspects despite claiming that a disgruntled girlfriend could have taken the key and stolen his car to get back at him;
i) there were no other thefts of or from any vehicles in the defendant's area on the evening of the alleged theft of the defendant's vehicle.
57Based on these facts, I find that the issuing justice could have issued the production order, pursuant to s. 487.012 as there was sufficient evidence to believe that criminal offences had been committed and therefore the defendant's rights pursuant to section 8 of the Charter were not infringed. The application is therefore dismissed.
Exclusion of Evidence Pursuant to Section 24(2) of the Charter
58Even if I had found that the defendant's section 8 Charter protected rights were infringed I would have nevertheless have admitted the evidence pursuant to section 24(2) of the Charter. I will briefly outline the basis for this conclusion.
59The seriousness of the state conduct was minimal. Constable Strauch acted in good faith. He presented all of the information in the ITO and sought and obtained a court order from a judicial officer. This factor favours inclusion.
60The impact of the Charter protected interests is not egregious but I have found that the defendant had the expectation of privacy albeit a reduced expectation. However, this case deals with informational privacy and although a serious privacy right that should be protected, nothing done offended the defendant's dignity. This factor also favours inclusion.
61Society's interest in having this matter adjudicated on its merits supports the admission of the impugned cell phone records into evidence. The cellphone records are not self-incriminating. They are reliable data that can be used to factually determine the location of the cellphone during the time of the purported theft. The records are essential to the Crown's case.
62In balancing these factors, I find that the exclusion of the reliable cell phone records, in view of the seriousness of the fraud and public mischief allegations, the minimal impact on the defendant's Charter protected rights to privacy and the minimal seriousness of the state conduct, would bring the administration of justice into disrepute.
63As indicated, I found there was no breach of the defendant's section 8 rights but if I had found such a breach I would have admitted the records into evidence under analysis of the factors in section 24(2) of the Charter.
Order as Follows
64The application to exclude the evidence, obtained as a result of a production order pursuant to section 487.012 as a breach of section 8 and 24(2) of the Charter of Rights and Freedoms, is dismissed.
Released: December 17, 2013
Signed: "Justice Roselyn Zisman"