R. v. Harder

Ontario Court of Justice

Date: April 21, 2017

Court File No.: 14-84375

Parties

Between:

Her Majesty the Queen

— AND —

James Harder

Before the Court

Justice C. A. Parry

Heard on: December 15, 2016; January 10, 17, and 31; February 9 and 22; and March 31, 2017

Reasons for Judgment released: April 21, 2017

Counsel

Ashley Warne — counsel for the Crown

Stephanie Krug — counsel for the defendant James Harder

PARRY J.:

I. OVERVIEW

1James Harder stands charged on a three count information which alleges that on the 23rd of January 2016 he:

a. Committed a robbery by using violence whilst stealing property from David Holder, contrary to section 344(1)(b) of the Criminal Code;

b. Broke into and entered David Holder's Home and then committed the aforementioned robbery, contrary to section 348(1)(b) of the Criminal Code; and

c. Failed to comply with his probation order, by failing to keep the peace and be of good behavior when committing the aforementioned robbery, contrary to section 733.1(1) of the Criminal Code.

2There are three alleged robbers. However, Mr. Harder is the only one charged and on trial before me.

3Mr. Harder's identity as one of the robbers is the primary factual issue in this case. The defence concedes a Robbery and a Break, Enter, & Commit Robbery took place. The defence also concedes that, if the Crown also proves that Mr. Harder is in fact one of the robbers, then they will prove that Mr. Harder violated his probation by failing to keep the peace.

4The Crown's ability to prove identity depends largely upon the search of a Blackberry Playbook tablet found in the accused's possession 4 days after the robbery, when he was occupying the driver's seat of a motor vehicle stolen from the robbery. The Crown concedes that without the evidence of the contents of the messages from this Playbook, it cannot prove identity beyond a reasonable doubt.

5The defence has brought a Charter application, alleging that the police violated Mr. Harder's right to be secure from unreasonable searches and seizures, a right enshrined in section 8 of the Charter of Rights and Freedoms. The defence alleges that this right was violated when:

a. Detective Krisko conducted a cursory search of the contents of the tablet. The defence argues that this cursory search was not actually incident to a lawful arrest. The defence also argues that, even if incident to a lawful arrest, the officer did not comply with the requirements laid down in the Supreme Court of Canada case R. v. Fearon.

b. The defence submits that the fruits of this cursory search should be excised from the ITO a Search Warrant for the contents of this tablet.

c. The defence also submits that the contents of a police interview of the accused should be excised from that same ITO, because the police did not inform Mr. Harder of his right to counsel in relation to the robbery investigation prior to seeking to elicit statements from Mr. Harder. The defence also notes that the police attempted to use unlawful inducements to get Mr. Harder to agree to provide a password for his cell phone during this same interview.

d. The defence further submits that, upon amplification and review of the facts contained in and around the warrant application, no reasonable justice could have reasonably issued a search warrant for Mr. Harder's tablet.

e. The defence therefore submits that the more thorough search of the tablet, which revealed some arguably incriminating communications, should be considered an unreasonable search.

f. The defence argues the alleged the nature of the alleged Charter breaches justifies the exclusion of the evidence obtained from the search of the tablet.

II. SUMMARY OF THE FACTS

A. The Robbery

6A home invasion robbery occurred at the home of David Holder on January 23, 2016, at around 9:30 in the morning. Three robbers came to his door. All were white. All wore sunglasses and hats. They forced their way into Mr. Holder's apartment; they beat him severely; they stole drugs, various items of electronics [which were later specifically described in detail by Mr. Holder to the police], and Mr. Holder's work tools. One of the robbers indicated that they were there because somebody doesn't like Holder. When Holder guessed that the "someone" was Adam [Beasoleil] one of the robbers started laughing then asked another for handcuffs, with which they could restrain Mr. Holder. After a short while, the robbers ceased the beating and fled in a car purchased by Mr. Holder, but registered in the name of his female housemate [Chantelle Simard]. In his evidence at trial, Mr. Holder implicated Ms. Simard in the trafficking of marijuana from their household. Given the presence of a debt list found in a lock box in Mr. Holder's room, with other drug paraphernalia, and Holder's evidence that the handwriting in the debt list belonged to Simard, I conclude that either Holder alone or the both of them were involved in this trade [given Harder's admitted dishonesty under oath, I am not convinced I should believe his assertion that Simard wrote the debt list entries].

7Almost immediately after the robbery, Mr. Holder contacted the police. Cst. Shipp responded to the scene. Shortly thereafter, emergency medical personnel transported Mr. Holder to the hospital. At the hospital, Mr. Holder provided a statement, which was transcribed by Cst. Shipp and signed by Mr. Holder. In that statement, Mr. Holder described all three of his assailants as white males. He described them thus:

#1: White male, black hat, short hair, 6 feet tall, medium build, black jacket, blue jeans, clean shaven, wearing sunglasses.

#2: White male, black hat, blue jeans, black jacket, long sideburns, sunglasses

#3: White male, dark hair, wearing dark hunting camo jacket.

[See Exhibit 9: Warrant to Search]

8Mr. Holder also suggested to Cst. Shipp that Adam Beasoleil, the former boyfriend of Billy Marie Rourke [aka Nikko] might be behind the robbery. He told Shipp that the robbers asked for Nikko. He also told Shipp that he had been intimate with Nikko, thereby giving Adam a motive to be angry with him.

9On January 25th, Mr. Holder came to the police station and provided a videotaped statement to Detective Koiter. In this statement, in addition to casting suspicion upon Adam Beasoleil, he also suggested to Detective Koiter that he suspected that his roommate's mother might be behind the robbery. He also told Koiter that he suspected Nikko [aka Billy Marie Rourke] of orchestrating the robbery.

10During Koiter's interview of Holder, the police at times questioned the truthfulness of Holder [In his testimony, Holder agreed that that the police told him that they did not believe his whole story]. In a lock box in Holder's apartment, the police found what appears to be a drug debt list. This debt list presented an obvious motive for a robbery. At trial, Holder admitted being challenged by Koiter about the apparent debt list and being accused of being involved in the sale of drugs. During the course of his evidence, Holder admitted to knowingly but "unintentionally" lying about the subject of the stolen drugs when testifying. While initially asserting that only 7 grams of marijuana had been stolen, Holder eventually admitted in cross-examination that a full ounce had been stolen. He simply did not want to appear to anyone to be a drug dealer. I find as a fact that he intentionally lied in his testimony. I also I find as a fact that he was a drug dealer. I make this finding for three reasons: (1) presence of an ounce of marijuana in the apartment; (2) the contents of the lock box, including a scale, an obvious debt list, and other drug paraphernalia; and (3) Holder's intentional lie aimed at steering the court from the inference that he is a drug dealer. Moreover, I find as a fact that this possibility presented itself to the police and I infer that the police were alive to the notion that the robbers may have been motivated by a desire to steal Mr. Holder's drugs, despite Mr. Holder's reluctance to admit being a dealer.

11In short, I infer that the police knew that Holder was an unsavory witness who could not be trusted.

B. The Arrest of James Harder for Possession of the Stolen Kia SUV

12On January 27, 2017, staff at the YMCA in Kitchener made a suspicious persons call, shortly before five in the afternoon – four and a half days after the home invasion robbery. They reported seeing 3 people checking handles on an unspecified number of car doors. The caller indicated that the suspects had gotten into a Kia SUV. The caller also provided the licence plate marker of this SUV. CPIC records revealed that the vehicle in question was the one stolen during the home invasion at Mr. Holder's house.

13Constable McNaughton responded to the call and attended the YMCA parking lot. Upon his arrival, he found the stolen motor vehicle and 3 people inside it. Mr. Harder [the accused] was in the driver's seat. Mr. Harder is not white. He is mixed race, with obvious African ancestry and obvious white ancestry. In my view the notional reasonable observer would describe him black, mixed race, or at the very least non-white. During the trial, Mr. Holder himself acknowledged that Mr. Harder is not white. It was a matter of fact that even this dishonest witness could not lie about.

14McNaughton arrested the accused for possessing a stolen motor vehicle. Upon search incident to arrest, McNaughton found less than a gram of marijuana, so he arrested Mr. Harder for an offence under s. 4(1) of the C.D.S.A. too. During a search incident to arrest, McNaughton found a backpack belonging to Mr. Harder behind the driver's seat. Inside that backpack, he found some electronic items [charger cords, battery chargers ipads, ipods, cell phones, etc.].

15Some of the electronic items were seized and retained for the purposes of further police investigation. Cst. McNaughton seized these items because of his awareness that a laptop and cell phone had been stolen during the home invasion. He sent these items to the technological crimes unit for further analysis. Again, I stress, there is an absence of evidence before me as to how Cst. McNaughton distinguished between electronic items that could be reasonably considered linked to the home invasion (or another crime) and electronic items that Cst. McNaughton concluded legitimately belonged to the accused. However, it is clear on the evidence before me that, through some unknown investigative process, Cst. McNaughton became satisfied that certain of the seized items legitimately belonged to the accused. Accordingly, Cst. McNaughton returned these items to the control of the accused. Constable McNaughton thereby relinquished the seizure of those items incident to the arrest for possession of the stolen motor vehicle. He placed these items, together with other items belonging to the accused into a property bag and sealed it. This bag was sent to the courthouse, to be followed later by the accused, who was being held for a bail hearing. By the point in time the sealed bag arrived at the courthouse, the WRPS became trustees of that property, and the accused had regained the right to direct the dissemination of the property. He had the right to order the property released to counsel [or duty counsel] at the courthouse, or released to the Working Centre [which offers a service whereby the Centre holds on to seized property until such time as a prisoner is released]. The accused's cell phone and Blackberry Playbook [a computer tablet] were amongst the items placed in the accused's sealed property bag.

16The two other occupants of the stolen motor vehicle at the YMCA were Natalia Kryvotsuk and Christian Bott. They denied knowing that the motor vehicle was stolen. For reasons which have not been fully described to me, Cst. McNaughton concluded that these two occupants were not criminally implicated in the occupancy or possession of this motor vehicle. He released them unconditionally.

17Constable McNaughton also did not form grounds to believe that Harder or his two companions had committed any thefts from the YMCA parking lot.

18Being a patrol constable, McNaughton's involvement in the case ended after the accused was processed and lodged at the police detachment, pending his eventual transport to court for a show cause hearing on the morning of January 28th.

C. Detective Krisko's Investigation and the Search of the Accused's Blackberry Playbook

19Detective Krisko was in the same platoon as Constable McNaughton. He started his shift at 8 a.m. on January 28th, about 15 hours after the accused's arrest and 5 days after the robbery. Detective Krisko was not the officer assigned to investigate the robbery. Detective Koiter was assigned to the robbery, but Koiter was not on shift that day.

20Because Koiter was not on shift, Detective Sergeant Sim [the staff sergeant on duty] tasked Detective Krisko with determining whether there was any connection between the accused's possession of the stolen car and the home invasion robbery. To that end, she directed Krisko to interview the accused. In other words, the raison d'etre of the interview was to obtain, if possible, information from Mr. Harder that would incriminate him in the robbery.

21Detective Krisko reviewed McNaughton's Case File Synopsis [and likely his notebook notes]; he also reviewed the Computer Automated Dispatch Details [CAD] from the accused's arrest for Possession. He also reviewed the CAD from Detective Koiter's robbery investigation. Detective Krisko also generated the Occurrence Report from the robbery and reviewed that document. In short, he familiarized himself with the background of both cases.

22With regards to the Possession matter, for which the accused was under arrest, he learned the following:

a. Staff at the Kitchener YMCA made a call to the police to report 3 suspicious persons.

b. It appeared that these persons had checked some door handles on vehicles in the parking lot.

c. The vehicle occupied by the three suspicious persons was stolen during a home invasion robbery on January 23rd.

d. Constable McNaughton arrived on scene and arrested the accused. He released unconditionally the two other people that were with the accused.

e. The prisoner detain sheet revealed that Constable McNaughton [for reasons unknown to Krisko] determined that certain seized items belonged to the accused. These items were returned to the accused, placed in the accused's sealed property bag, and sent along to the courthouse. Detective Krisko was unaware that other items had been retained by McNaughton, for the purpose of having them analyzed by the Technical Crimes Branch.

f. Detective Krisko knew that the accused had not been charged with theft or attempted theft involving any motor vehicle in the YMCA parking lot. He believed that surveillance cameras in the YMCA parking lot videotaped the parking lot. Despite this, there had been no allegation of any actual thefts by the three suspects in the parking lot. Moreover, Krisko did not make any contact with the YMCA to determine whether any theft complaints had since been made. The officer agreed that he did not possess any evidence to give rise to reasonable grounds to believe any items in Harder's possession [other than the stolen vehicle] were stolen.

23With respect to the robbery, some of the information learned by Detective Krisko was as follows:

a. Three men came to the home of Mr. Holder and knocked on the door.

b. When Holder answered the door, the three males entered and began to hit Holder.

c. Various items were stolen from the residence. This stolen property was itemized.

d. The three males then stole a motor vehicle from the residence. This vehicle was registered to Chantelle Simard.

24I remind myself here that the accused was in possession of a stolen motor vehicle 4 days after it was taken during a robbery. Despite this recent possession of the motor vehicle, no one arrested Mr. Harder for the robbery, not McNaughton, not Staff Sergeant Sim, and not Detective Krisko. These are competent and intelligent police officers. They are no fools. So I ask myself, why not arrest a man who is in recent possession of a motor vehicle stolen during a robbery? There can be only one explanation, in my view. Infer that both Detective Sergeant Sim and Detective Krisko [and McNaughton, for that matter] were generally aware of the salient details of the robbery, including the description of the alleged suspects. Unlike the suspects in the robbery, James Harder is not white. He is mixed race, part black. I infer that both Sim and Krisko knew that Mr. Harder's race was not the same as those of the three suspects. I infer that discrepancy between Harder's race and those of three suspects is the primary reason [possibly the only reason] Harder was not arrested for the robbery. In my view, possession of a stolen motor vehicle 4 days after it was stolen during a robbery would, absent other exculpatory evidence, give rise to reasonable and probable grounds to arrest Mr. Harder for the robbery, or at the very least, reasonable grounds to detain for that robbery. Other than Mr. Harder's race, I am not aware of any other piece of exculpatory evidence that would negate the formation of these grounds. I infer that Krisko must have known of the race of the suspects after his review of the CAD report and the General Occurrence Report for the robbery. It would be negligent for the police to not include a description of suspects in such reports – where the key unsolved element of the crime is the identity of the suspects [who are still at large]. These reports are created for a reason. Patrol officers and Detectives can refer to them, so as to be equipped to arrest suspects who match the descriptions of the perpetrators or suspects who are in possession of property stolen property from the robbery. It would also be grossly negligent for a detective, tasked with determining whether a detainee can be identified as one of the three suspects, to fail to inquire into the descriptions of the suspects provided by the victim. Detective Krisko is an intelligent and capable officer. I consider it extremely improbable that he would not inquire into the description of the culprits when familiarizing himself with the robbery file – so improbable that I am certain that he in fact did make this most basic of inquiries. I therefore infer that he knew that Harder did not match the description of any of the three suspects. I infer that it is for this reason that Krisko considered Mr. Harder as only a "person of interest" in the robbery when he was first assigned to interview Mr. Harder. I am fortified in this belief by his approach to the interrogation of Mr. Harder. He tells the court that, because Harder was only a person of interest [i.e. not detained or arrested] on the robbery, he did not feel he needed to provide him with his rights to counsel before questioning Harder about the robbery. According to his evidence, he had not proceeded past the hunch stage. I find that it was this hunch that motivated Krisko to perform a cursory search of the Playbook. I will now turn to the circumstances of that cursory search.

25Prior to interviewing Mr. Harder, Detective Krisko reviewed the detain sheet and learned that McNaughton had returned the accused's Playbook and cell phone to him. These items had been placed in the accused's sealed property bag and sent to the courthouse. Krisko did not agree with this decision, despite the fact that he had not spoken with McNaughton and inquired about his basis for concluding that these items belonged to the accused.

26Nevertheless, this detective decided to re-seize the accused's property incident to the same earlier arrest. In his words, he had an "inkling" that he wanted to seize the item prior to any interview of Harder, despite having no concern about the potential loss of the item. He claimed to be unconcerned about loss of evidence and not thinking about obtaining incriminating evidence against Harder by examining the seized property.

27He attended at the courthouse and opened the accused's property bag, without a warrant and without the consent of the accused. He then performed a cursory search of the Blackberry tablet, without a warrant, without consent of the accused, without contemporaneous notes, and without a detailed recording [and consequently, without a subsequent detailed recollection] of the exact areas searched within the tablet.

28Detective Krisko testified that he searched this tablet to determine the ownership of the device, because of a suspicion that the tablet may have been stolen during car hopping. I reject this evidence on this point. I do so for the following reasons:

a. Krisko agreed that he had zero evidence to believe the Blackberry Playbook in Harder's property was stolen from the YMCA or elsewhere.

b. Krisko's note about the reason for his search of the tablet was made as a late entry in his notebook, long [about 2.5 hours] after the cursory search was over.

c. On its face, Krisko had positive grounds [McNaughton's conclusion of ownership] to conclude the device in fact belonged to Harder. Krisko made no attempt to scrutinize the correctness of McNaughton's conclusion that the Playbook belonged to Harder. For all he knew, Harder may have allowed McNaughton to examine the contents of the Playbook for the purpose of establishing Harder's ownership. The fact that he did not contact McNaughton to ask about the basis for McNaughton's conclusion is therefore telling. In these circumstances, Krisko's claimed belief that McNaughton made a mistake in returning the device therefore makes no sense.

d. Similarly, despite being aware of the existence of videotaped footage from the YMCA parking lot, Krisko made no attempt to look at that videotape for the purpose of determining whether Harder and his friends ever attempted to make or did make entry into any other cars in the parking lot. Also, despite the apparent existence of video footage that would have the ability to reveal unlawful entries into cars, no staff at the YMCA had reported actual entries into cars, nor had any car owner reported an actual theft. In these circumstances, the claimed suspicion that the items may have come from car hopping at the YMCA rings hollow.

e. Krisko also made no attempt to speak to the YMCA staff to properly inform himself prior to making the determination to search the Playbook. This failure makes his ex post facto justification for the search ring hollow too.

f. In addition, by Krisko's own admission in court, he was operating on the hypothesis that the accused was one of the robbers, and he was therefore interested in learning whether or not the Playbook would contain communications about the home invasion robbery. As an aside, I conclude that this hypothesis, at that point in time, was entirely unreasonable. I come to this conclusion because of my conclusion that Krisko had to have known by this point in time that Harder was of a different race than the three robbers.

g. Also, Krisko's purported willingness to search a device that may belong to an innocent third party is extremely problematic. It involves the violation of the privacy interest of a person that is not the subject of police investigation. Surely, if Krisko had grounds to believe the device might belong to an innocent victim of a crime, he would not be so cavalier about trouncing upon that civilian's privacy interest in a device that might contain extremely private and intimate details of that person's life.

h. In the same vein, Krisko also testified that he did not believe that the accused had a reasonable expectation of privacy in the Playbook until such time as Krisko could determine that the device belonged to the accused. This proposition turns the law on its head. Rather than presume the possessor of a device had an expectation of privacy in it, he presumed the absence of an expectation of privacy in this device. It would appear that he was prepared to infringe upon someone's privacy interests, and it would appear that he was hoping that someone would be the accused, but he was indifferent as to whether that someone turned out to be an innocent third party.

i. I also note that Krisko's description of the cursory search is itself problematic. The first place searched was the messages – the same place in which he hoped he might find communications about the robbery. He did not look in Photographs. He did not look in the Settings. He looked in the place where he hoped to find more than just evidence of the identity of the owner. Also, at trial, he could not recall whether he looked at more than one message before finally discovering that Harder was the recipient of the incoming messages. Also, he took the time to read the content of the message. A message which by some lucky coincidence happened to be a drug conversation. If he was truly opening the messages to discern the identity of the recipient, surely he would know that he only looked at one message. You would only need to look at one message to accomplish that simple task. Surely, after reading the name of the recipient, you would not need to go further and read the content of the message – if your sole purpose was to determine the identity of the owner of the device. Moreover, he took a photograph of the final message viewed. Surely, if you were attempting to keep a proper record of your cursory search, you would take a photograph of every page searched. You would then be able to conclude that, because you only photographed one message, you must have only looked at one message. Unfortunately, Krisko was unable to come to this conclusion and give evidence along these lines. Finally, I note that the drug conversation he did in fact photograph just happens, by astonishing coincidence and by an unbelievable stroke of luck, to be a conversation that occurs on the same date as the alleged robbery. I come to the conclusion, therefore that Detective Krisko was scrolling through messages looking for incriminating messages, not looking for the identity of the owner of the device. I come to the conclusion that, once he found one, he took a photograph of it and then concluded his search. I reject any evidence he gives to the contrary.

29For the above-noted reasons, I come to the conclusion that there were two reasons why Krisko was so anxious and willing to search the Playbook belonging to Mr. Harder:

i. Krisko's genuine belief that the device did in fact belong to Harder; and

ii. He had an unfounded hope that the device might disclose that Harder was one of the three robbers, despite the existing evidence that excluded him as a suspect.

30In pursuit of this unfounded hope, Detective Krisko conducted a cursory search of Mr. Harder's Playbook in the cellblock at the courthouse. He opened the property bag at 9:42 a.m. and departed to the nearby detachment at 10:02 a.m. immediately after completing the search. He performed this search without a warrant. He did not take contemporaneous notes of this search. As a result, he is not able to tell the court how many messages he may have looked at while performing his cursory search. As noted, I have come to the conclusion that he was scrolling through messages for the purpose of finding an incriminatory one. As noted, he took a photograph of the final message, an incriminatory message. This message involved a discussion of a drug transaction with a third party. This message [without any explanation as to its relevance to the police theory of the case] was subsequently included in the ITO a Warrant to search the Playbook.

31Following the search of the Playbook, Krisko returned to the police detachment with the Playbook and Harder's cell phone. In essence, these items were re-seized without a warrant.

32Detective Krisko then commenced an interrogation of Mr. Harder. As the interrogation progressed, Detective Krisko's focus shifted to Harder's possible involvement in the robbery. It should be remembered at this point that Harder had not been arrested for the robbery. He was only under arrest for the possession of the stolen vehicle. Krisko did not inform Harder of Right to Counsel, nor did he Caution Harder in respect of the robbery investigation. Krisko reasoned that Harder's jeopardy had not increased. He explained that he only viewed Harder as a person of interest in the robbery. By necessary implication, he has asserted in this trial that he was not detaining or arresting Harder for the robbery during this interrogation. Krisko reasoned that Harder's jeopardy would only increase if Harder capitulated during the interrogation and made an inculpatory admission about his involvement in the robbery. In other words, Krisko did not intend to provide Rights to Counsel regarding the robbery until it was too late – until the horse had already left the barn.

33During Harder's interview, Detective Krisko sought a password for Harder's cell phone. Harder refused. Faced with this refusal, Krisko told Harder that the police were "going to write a warrant" for the phone and that, without a passcode, the police were "gonna get into it by possibly breaking it". He went on to say that, with a warrant, the police "would have the right to get into that phone by any means necessary." At trial, Detective Krisko maintained that he was not making a threat when making these remarks to Mr. Harder. He maintains that he was simply stating a fact. I reject his evidence on this point. It is a blatant threat aimed at securing a passcode that Mr. Harder did not want to provide. This threat was tantamount to declaring "open up or we will get a warrant and bust the door down". The threat failed, but it does not make it any less of a threat. Detective Krisko's reluctance to admit this obvious fact does nothing for his testimonial credibility. His willingness to employ such methods, speaks to his willingness to infringe upon the accused's Charter rights when other investigative avenues prove unfruitful.

34While pursuing the theory that Harder was involved in the robbery, Krisko made note of the implications of Harder's recent possession of the stolen vehicle. He told Harder:

How you got the car – I don't believe how you got the car. It just doesn't make sense. It's not plausible. And so I mean you, being in recent possession of this, this car, and it was recently been taken…. That would lead me to believe that you were involved.

This assertion to Harder reinforces my conclusion that Krisko would consider the recent possession of the motor vehicle to be sufficient, in ordinary circumstances, to form grounds to arrest for the preceding robbery. It also reinforces my conclusion that he was confounded by the inconsistency between Harder's race and the racial descriptions of the suspects provided by Holder. But for this inconsistency, I have no doubt that the police would have arrested Harder for the robbery at the outset. I infer that Krisko's treatment of Harder was motivated by a concern that the eyewitness identification [notorious for its frailty in the criminal justice system] may have been flawed.

D. The Search Warrant for the Playbook and the Resulting Search of the Playbook

35Four hours after the commencement of his shift, Detective Krisko completed his interview of Mr. Harder. For the remainder of his shift, he made no effort to obtain a warrant for the Playbook. He himself had no sense of any urgency to search the device. Ultimately, Detective Koiter applied for and received a warrant to search Mr. Harder's phone on March 8, 2016, over a month after the re-seizure of that playbook by Detective Krisko. This delay, in and of itself, unequivocally demonstrates the objective lack of any urgency for a cursory search of the phone. Once seized any potential evidence within the device had been preserved. The police were therefore able to pursue a warrant at their leisure. Consequently, their pace was leisurely.

36In his ITO, Koiter relied upon the contents of Krisko's interrogation of Harder, an interrogation conducted without informing Harder of his right to consult counsel regarding the robbery investigation.

37Koiter also relied upon the results of the cursory search performed by Krisko.

38He also relied upon the information gleaned from Constable Shipp's initial investigation, much of which has been described above.

39Koiter also relied upon his own interview of Mr. Holder.

40Koiter's primary grounds can be briefly summarized grounds as follows:

a. James HARDER was arrested January 27, 2016, after being found in possession of Dave HOLDER's vehicle, which was stolen during a robbery on January 23, 2016.

b. James HARDER was found to be in possession of a Blackberry Playbook.

c. Detective KRISKO conducted a cursory search of the Blackberry Playbook to confirm ownership and found an open profile on Facebook Messenger belonging to James Harder.

d. The messages observed show HARDER to be involved in dealing drugs with Ronnie FRANCIS. [No explanation is provided as to why the police found this item of evidence to have any relevance whatsoever to the robbery investigation].

e. The contacts list in Facebook Messenger showed a contact of Haz Zardous, who is believed to be Adam Beasoleil, a suspect identified by HOLDER as being the person that set up the robbery committed by the three bandits. [Indeed, Koiter suggests that this is the only suspect identified by HOLDER, a suggestion proven false by Holder's testimony at trial].

f. Harder admitted during his interview that he used his Playbook to communicate with others using various software applications. The police believed Harder would likely communicate about the robbery using his Playbook.

g. Given the recent possession of the stolen car and the connection to the only alleged mastermind of the robbery, the police believed that Harder was one of the three robbers.

h. Given the likelihood that a robber might communicate about the plot with his co-conspirators, the police believed they would find communications about the robbery on Mr. Harder's Playbook.

41I will make a number of observations about the ITO at this point.

a. At paragraph 3, Detective Koiter indicates that ALL information relevant to the investigation is in the affidavit. As will be seen from the following observations, I have come to the conclusion that this assertion is quite far from the truth.

b. Most notably, Detective Koiter never ever mentions that Mr. Harder is not white. He describes the three robbers in painstaking detail, all of them white males, but he never once refers to the race of Mr. Harder. Any reasonable person reading this Information would erroneously come to the conclusion that Harder must be white. Put another way, any reasonable person would be misled. There is no doubt in my mind that a reasonable person with any reasonable opportunity to observe Mr. Harder would conclude he is not white. Indeed, as I have said, even Mr. Holder [an abject liar] agrees that Mr. Harder is not white.

i. If Koiter never bothered to examine the race of the man, then he was abjectly negligent. I cannot fathom an experienced detective failing to look at an arrestee's descriptors in a prosecution that hinges upon proving the identity of a perpetrator. I infer that Koiter knew very well that Harder was not white.

ii. I infer that Koiter deliberately withheld the race of his suspect from the issuing Justice of the Peace.

iii. I therefore infer that Koiter deliberately misled the issuing Justice of the Peace about the race of Mr. Harder.

c. At paragraph 6 of the Information, Koiter indicates that Holder was dating and living with Nikko [Billie Marie Rourke] at the time of the robbery. This assertion is significant, because Nikko is the woman alleged by Holder to be the former love interest of "Adam". The alleged motive for the robbery was revenge for Holder's romantic involvement with Nikko. However, Holder's evidence at trial established that Holder told Koiter during the videotaped interview that Nikko had moved out in December – a month before the robbery. In other words, Holder's report of Nikko's departure had taken some of the wind out of the sails of the theory of motive [see paragraph 30 of the Information], and threatened to diminish the importance of Harder's connection to Adam Beasoleil. The police failed to point this development out to the issuing Justice of the Peace.

d. At paragraph 7 of the Information, Koiter indicated that Holder identified Adam Beasoleil as a possible suspect. This is not quite an accurate assertion. Holder only knew the first name of Adam. As paragraph 31 of the Information indicates, he believed Adam's Facebook profile was "Adam H" or "Adam Hazards".

e. At paragraph 30 of the Information, Koiter indicated that "Holder still believes that the only person who might have anything to do with the robbery was … Adam because he had an argument and told him to stay away from Nikko. The argument occurred in late December 2015 or early January 2016". As noted earlier, Holder actually identified 3 possible masterminds to Koiter: Adam, Nikko, and Chantelle Simard's mother. In addition the police had been made aware that Nikko had in fact moved out a significant period of time prior to the robbery, thus deflating Adam's alleged motive. Paragraph 30 is therefore misleading.

E. The Fruits of the Search Conducted Under the Authority of the Search Warrant

42I have not heard fulsome submissions on the contents of the text messages. However, I would observe that the text messages do not appear to provide the "smoking gun" for the prosecution in this case. Mr. Harder does make reference, in the afternoon of January 23rd, to the "grass" [slang for marijuana, perhaps] he and others "got this morning". He also makes reference to wanting to get rid of 4 laptops on January 23rd. One of the laptops happens to be the same make (Acer) as the laptop stolen from Holder. Harder also makes reference on January 23rd, to a car. He says, "I have a car now I need gone." The cumulative effect of these messages can fairly be described as incriminating, but not necessarily conclusive.

43I am however aware that, without this incriminating evidence, the Crown takes the position it cannot prove its case. Accordingly, the exclusion of the contents of the Playbook would be fatal to the Crown's case, and the inclusion of this evidence would breathe life into the Crown's prospects for conviction.

III. THE LAW

A. Search and Seizure Law: General Principles

44Section 8 of the Charter provides that "Everyone has the right to be secure against unreasonable search or seizure."

45Section 8 protects people, not places. It protects each individual's reasonable expectation of privacy against intrusion by the state. In R. v. Ward, 2012 ONCA 660, at para 71, Justice Doherty described the concept of privacy as follows:

Personal privacy is about more than secrecy and confidentiality. Privacy is about being left alone by the state and not being liable to be called to account for anything and everything one does, says or thinks. Personal privacy protects an individual's ability to function on a day-to-day basis within society while enjoying a degree of anonymity that is essential to the individual's personal growth and the flourishing of an open and democratic society.

46In appropriate circumstances, an individual's right to be left alone by the state must give way to the state's interests in advancing its goals, including the goal of law enforcement and the maintenance of a peaceful and just society. In other words, in some circumstances, state intrusion of upon the privacy interests of individuals will be justified.

See Hunter v. Southam, 1984 CanLII 33 (SCC)

47The state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion. Therefore, generally speaking, reasonable and probable grounds constitutes the constitutional minimum standard for the intrusion upon an individual's right to privacy.

See Hunter v. Southam, supra.

48The purpose of section 8 of the Charter is to protect people from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. Generally speaking, this purpose can only be accomplished by a system of prior authorization, not one of subsequent validation. Accordingly, where it is feasible to obtain a prior authorization, such authorization is a precondition for a valid search and seizure. Consequently, a warrantless search is presumed to be an unreasonable search and the Crown bears the onus of proving that a warrantless search was nevertheless a reasonable one.

See Hunter v. Southam, supra.

49While the accused persons have the burden of proving any breach of their rights, once they have demonstrated that the search was a warrantless one, the Crown has the burden of showing that the search was, on a balance of probabilities, reasonable. A search will be reasonable if:

a. It is authorized by law;

b. The law itself is reasonable; and

c. The manner in which the search was conducted was reasonable.

B. Searches Incident to a Lawful Arrest

50The common law has long recognized the power of the police to search incident to a lawful arrest. A search that is truly incidental to a lawful arrest constitutes an exception to the general rule that presumes warrantless searches to be unreasonable. A search incident to arrest is also an exception to the general requirement that the person conducting the search have reasonable and probable grounds to believe in the existence of the thing being searched for on the body of the person being searched.

See R. v. Fearon, 2014 SCC 77; Cloutier v. Langlois, 1990 CanLII 122 (SCC).

51A search incident to arrest does not require reasonable and probable grounds, beyond the grounds that were sufficient to support the lawfulness of the arrest. This search power is a discretionary power. However, the search must be conducted for a valid purpose. In that regard, the officer may seize from the arrestee any property that the officer reasonably believes:

i. is connected with the offence charged;

ii. may be used as evidence against the arrestee on the charge in question;

iii. is a weapon or instrument that gives rise to a threat of violence or the threat of an escape.

See Cloutier v. Langlois, supra.

52Pursuant to the power of search incident to arrest, the police may be entitled to search an accused person's car when that car. In R. v. Caslake 1998 CanLII 838 (SCC), Lamer C.J.C., at paragraph 25 of the judgment, summarized the doctrine of search incident to arrest and its application to motor vehicle searches as follows:

25 In summary, searches must be authorized by law. If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a proper explanation.

53In R. v. Fearon, infra, the Supreme Court reaffirmed the principles articulated in Caslake. In doing so, the court said the following at paragraph 21 of the decision:

That brings me to the leading case from this Court, Caslake. The case concerned an inventory search of a suspect's vehicle six hours after he was arrested for possession of narcotics. The Court concluded that the search did not fall within the scope of lawful search incident to arrest. Lamer C.J. articulated the justification of the common law power as being the need for law enforcement authorities to gain control of things or information, a need which outweighs the individual's interest in privacy: para. 17. Whether the search is justified depends on whether the search is truly incidental to the arrest: para. 17. This means that the police must [page638] be attempting to achieve some valid purpose connected to the arrest. That turns on what they were looking for and why. The police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted, and the officer conducting the search must reasonably believe that this purpose may be served by the search.

From this passage, it becomes clear that the police officer must first subjectively believe in a particular valid purpose for the search, and second that subjective belief must be objectively reasonable.

54Accordingly, the power to search incident to arrest does not extend to searches conducted for purposes unrelated to the reason for the arrest. For example, searching an accused person to determine the reason for that person's obstruction of justice [i.e. searching him for drugs to determine whether possession of drugs was the reason for the obstruction] is not truly incidental to the arrest.

See R. v. Mitchell (2005), 2005 NBCA 104.

55However, where the police have two or more parallel purposes for the search incident to arrest, the search will be lawful provided that at least one of the purposes was truly incidental to arrest.

See R. v. Caprara 2006 CanLII 18518 (ON CA).

C. Searches of Cell Phones and Tablets Incident to a Lawful Arrest

56Individuals have a high expectation of privacy in their computers, cell phones, and tablets. Cromwell J., in speaking for the majority of the Supreme Court in Fearon, supra, equated cell phones with personal computers, when considering the privacy interests attached to each. In that regard, the he reasoned as follows, at paragraph 51 of the decision:

51 It is well settled that the search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other "places": R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 38 and 40-45. It is unrealistic to equate a cell phone with a briefcase or document found in someone's possession at the time of arrest. As outlined in Vu, computers -- and I would add cell phones -- may have immense storage capacity, may generate information about intimate details of the user's interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinks that it has been destroyed, and may provide access to information that is in no meaningful sense "at" the location of the search: paras. 41-44.

52 We should not differentiate among different cellular devices based on their particular capacities when setting the general framework for the search power. So, for example, the same general framework for determining the legality of the search incident to arrest should apply to the relatively unsophisticated cellular telephone in issue in this case as it would to other devices that are the equivalent of computers: see Vu, at para. 38.

See R. v. Fearon, 2014 SCC 77.

57From this passage, and for the purposes of analyses under section 8 of the Charter, I conclude the Supreme Court sees virtually no distinction between the privacy interests attached to cell phones, laptops, desktops, or tablets.

58The majority in Fearon concluded that, as a result of the highly intimate and personal information contained upon devices of this nature, the general common law framework for searches incident to arrest needs to be modified when assessing the reasonableness of the searches of these devices. In coming to this conclusion the court noted at paragraph 58:

In particular, the law needs to provide the suspect with further protection against the risk of wholesale invasion of privacy which may occur if the search of a cell phone is constrained only by the requirements that the arrest be lawful and that the search be truly incidental to arrest and reasonable conducted.

59The court sought to strike a balance between important law enforcement objectives served by searches incident to arrest, on the one hand, and, on the other hand, the very significant privacy interests at stake in cell phone searches.

60In doing so, the court made three modifications of the general rules applicable to all searches incident to arrest. The modifications are as follows:

a. The requirement that the search of the cell phone be truly incidental to the arrest should be strictly applied to permit searches that are required to be done promptly upon arrest in order to effectively serve the purposes of officer and public safety, loss or destruction of evidence, or discovery of evidence.

b. The scope of the search must be tailored to the purpose for which it may be lawfully conducted. It is not enough that a cell phone search in general terms is truly incidental to arrest. Both the nature and the extent of the search performed on the cell phone must be truly incidental to the particular arrest for the particular offence. In general, therefore, only recently sent or drafted emails, texts, photos and the call log may be examined. The police must be able to explain what they searched and why. The police will not have the power to scour the devices indiscriminately.

The law enforcement objectives will be most compelling when the crimes being investigated involve violence or threats of violence, or that in some other way put public safety at risk. Arrests for minor offences are less likely to justify cell phone searches incident to arrest.

c. The third purpose for which searches incident to arrest are permitted -- the discovery of evidence -- must be treated restrictively in this context. The discovery of evidence, in the context of a cell phone search incident to arrest, will only be a valid law enforcement objective when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. Only in those types of situations does the law enforcement objective in relation to the discovery of evidence clearly outweigh the potentially significant intrusion on privacy. For example, if there is reason to think that there is another perpetrator who has not been located, the search of a cell phone for that purpose will be truly incidental to the arrest. The search power must be used with great circumspection. It also means, in practice, that the police will have to be prepared to explain why it was not practical (which does not mean impossible), in all the circumstances of the investigation, to postpone the search until they could obtain a warrant.

d. Finally, officers must make detailed notes of what they have examined on the cell phone. The search of a cell phone incident to arrest is an extraordinary search power that requires neither a warrant nor reasonable and probable grounds, the obligation to keep a careful record of what is searched and how it was searched should be imposed as a matter of constitutional imperative. The record should generally include the applications searched, the extent of the search, the time of the search, the purpose of the search, and the duration of the search. After-the-fact judicial review is especially important where, as in the case of searches incident to arrest, there is no prior authorization. Having a clear picture of what was done is important to such review being effective. In addition, the recordkeeping requirement is likely to have the incidental effect of helping police officers focus on the question of whether their conduct in relation to the phone falls squarely within the parameters of a lawful search incident to arrest.

See Fearon, supra, at paras 74-84.

D. The Right to Counsel When Facing Increased Jeopardy

61Everyone has the right, upon either arrest or detention, (a) to be informed promptly of the reasons therefor, and (b) to retain and instruct counsel without delay and to be informed of that right.

62The right to be promptly advised of the reason for one's detention embodied in s. 10(a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it. A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right.

See R. v. Evans, 1991 CanLII 98 (SCC), at para 31

63The police duty to inform a detained person of his or her right to counsel encompasses three subsidiary duties: (1) the duty to inform the detainee of his/her right to counsel; (2) the duty to give the detainee who so wishes a reasonable opportunity to exercise the right to retain and instruct counsel without delay; and (3) the duty to refrain from eliciting evidence from the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel.

See R. v. Manninen, 1987 CanLII 67 (SCC).

64The police have a duty to advise their detainee of his or her right to counsel again when new circumstances arise indicating that the accused is a suspect for a different, more serious crime than was the case at the time of the first warning. In other words, the police must restate the accused's right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning.

See R. v. Evans, supra, at para 47 and 48.

65The renewed duty arises because the accused's decision as to whether to obtain a lawyer may well be affected by the seriousness of the charge he faces. Likewise, the accused's decision as to whether or not to assert his/her right to silence might very well be affected by the seriousness of the charges he faces. In order to make an informed decision about either the exercise or waiver of his/her rights, the accused must possess knowledge of the extent of his/her jeopardy. Without this renewed duty to advise of the right to counsel, the detainee is exposed to the possibility of police manipulation, whereby the police -- hoping to question a suspect in a serious crime without the suspect's lawyer present -- bring in the suspect on a relatively minor offence, one for which a person may not consider it necessary remain silent or to have a lawyer immediately present, in order to question him or her on the more serious crime.

See R. v. Evans, supra, at para 47.

E. The Confessions Rule: Voluntariness

66A confession is an oral or written communication or statement made by an accused to a person in authority. Its admissibility becomes an issue when it is proffered by the prosecution as part of the prosecution's case.

See David Watt, Watt's Manual of Criminal Evidence, (Toronto: Thompson Reuters: 2016), p. 627

67The confessions rule is a common law protection, one that was historically concerned with preventing the admission of unreliable admissions by an accused party, but that has now expanded in scope to concern itself with the right to silence and fairness to the accused in the investigative and trial process. As a result, the right to silence, as guaranteed by section 7 of the Charter incorporates the protections provided by the common law confessions rule. Put another way, the confessions rule and the constitutional right to silence are functionally equivalent. That said, s. 7 has not displaced the application of the common law confessions rule.

See R. v. Singh, 2007 SCC 48.

68The Crown bears the onus of proving a confession voluntary. The crown must prove the voluntariness of a statement beyond a reasonable doubt. Relevant factors to consider in deciding voluntariness include evidence of:

a. Threats;

b. Promises;

c. Oppression;

d. The presence or absence of an operating mind within the person making the admission; and

e. Police trickery.

See David Watt, Watt's Manual of Criminal Evidence, (Toronto: Thompson Reuters: 2016), P. 646.

See also R. v. Oickle, 2000 SCC 38.

F. Principles Governing the Review of Search Warrants

69The review of any search warrant begins with the presumption that the warrant is valid. The onus of establishing the invalidity of the warrant falls upon the party asserting this invalidity - the applicant.

See R. v. Sadikov (2014), 305 C.C.C. (3d) at paras 83-89; R. v. Campbell (2010), 2010 ONCA 588.

70The review is not a renewed hearing of the original ex parte warrant application. Accordingly, reviewing judges do not substitute their view for that of the issuing judge.

71The test to be applied by a court when reviewing the sufficiency of a search warrant information has been laid down in R. v. Garafoli (1990), 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.) at page 188:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

72In assessing whether an authorizing justice could (not would) have issued the warrant, the reviewing judge must assess whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of hat offence would be found at the specified time and place of the proposed search. In other words, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could (not would) have issued.

See Sadikov, supra, at paras 83-89; Garafoli, supra, at page 188.

73As can be seen from the above quoted passage in Garafoli, the reviewing court is entitled to take into account information that was adduced on review but that was not placed before the issuing justice. This practice has been referred to as "amplification."

See James A. Fontana and David Keeshan, The Law of Search and Seizure in Canada, (Toronto: Lexus Nexis, 2015)

74Consequently, a reviewing judge must exclude erroneous information included in the original ITO. The reviewing judge may also consider, within limits, additional evidence adduced on the voir dire to correct minor errors in the ITO. Language in a search warrant that is so careless, filled with inaccuracies, or reliance on ritualistic phrases that it masks the true state of affairs and deprives a judicial officer of the opportunity to fairly assess whether the requirements for the issuance of a warrant have been met strikes at the core of the administration of justice. Given the ex parte nature of the warrant application, the courts have stressed that the police have a duty of full, frank, and fair disclosure. Accordingly, amplification evidence may correct good faith errors of the police in preparing the ITO, but does not extend to deliberate attempts to mislead the authorizing judge. In addition, evidence relied upon to amplify the record must be evidence available to investigators at the time the ITO was sworn, not information acquired later. Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds.

See R. v. Sadikov, supra; R. v. Hosie, 1996 CanLII 450 (ON CA); R. v. Araujo, [2000] S.C.R. 992; R. v. Morelli [2010] S.C.R. 549 at para 39-43.

75During the warrant application process, the police cannot benefit from their own illegal acts by including in Informations sworn to obtain warrants facts which were retrieved through searches without lawful authority. Accordingly, where the ITO contains evidence which flows from Charter violations or other illegal conduct, that evidence ought to be excised from the ITO during the amplification process.

See R. v. Grant, 1993 CanLII 68 (SCC); and R. v. Plant, 1993 CanLII 70 (SCC).

G. Exclusion of Evidence: Section 24(2) of the Charter

76An applicant who establishes a breach of his or her Charter rights, seeks redress under subsection 24(1) of the Charter. In a hearing conducted pursuant to subsection 24(1), the applicant may seek the exclusion of evidence obtained during the course of a Charter breach.

77Subsection 24(2) of the Charter articulates the test to be applied in the determination of the request to exclude evidence. Subsection 24(2) reads as follows:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

78The subsection reveals that the party seeking exclusion must establish two things:

a. the evidence sought to be excluded was obtained in a manner that infringed a Charter right; and

b. the admission of the evidence would bring the administration of justice into disrepute.

79The applicant must establish these two things on a balance of probabilities.

See R. v. Pino 2016 ONCA 389.

80In determining whether or not the evidence was "obtained in a manner that infringed or denied any rights or freedoms" of the applicant, the court should be guided by the following considerations:

a. the approach should be generous, consistent with the purpose of s. 24(2);

b. the court should consider the entire "chain of events" between the accused and the police;

c. the requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;

d. the connection between the evidence and the breach may be causal, temporal or contextual, or any combination of these three connections;

e. but the connection cannot be either too tenuous or too remote.

See R. v. Pino, supra, at para 72.

81Judicial interpretation of subsection 24(2) has continuously evolved since the enactment of the Charter. R. v. Grant, [2009] S.C.R. 353, is now the leading authority on the interpretation and application of subsection 24(2), particularly the second branch of the test codified in that subsection.

82In Grant, McLachlin C.J.C. and Charron J. noted that the subsection is concerned with the maintenance with the rule of law and with the defence of Charter rights in the justice system as a whole. The court noted that a Charter breach in and of itself brings the administration of justice into disrepute. However, in their view, subsection 24(2) was concerned with the future impact of the admission/exclusion of the evidence on the repute of the justice system. In other words, the court was concerned with whether admission/exclusion would do further damage to the repute of the justice system. In doing so, the court noted that the analysis required a long-term view, one aimed at preserving the integrity of our justice system and our democracy.

83Interpreting subsection 24(2) from this perspective, the majority in Grant held that a trial court must assess and balance the effect of the admission of the evidence on society's confidence in the justice system having regard to:

a. The seriousness of the Charter-infringing state conduct [admission may send the message that the justice system condones serious state misconduct];

b. The impact of the breach on the Charter-protected interests of the accused [admission may send the message that individual rights count for little]; and

c. Society's interest in the adjudication of the case on its merits.

See Grant, supra.

84The seriousness of Charter-infringing state conduct may require a court to disassociate itself from the police conduct. However, the presence of good faith during the course of the breach may lessen this need. Trial courts must keep in mind, though, that ignorance of Charter standards, negligence, and wilful blindness cannot be equated with "good faith", and should not be encouraged or rewarded through the admission of evidence.

See Grant, supra, at para 75.

85Needless to say, deliberate state misconduct will tend to support the exclusion of evidence.

See Grant, supra.

86The third branch of the Grant analysis places emphasis on the truth seeking function of the trial process. This portion of the analysis requires the court to balance concerns about the integrity of the justice system with the interests of seeking the truth. Admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the Crown's case. Conversely, the exclusion of highly reliable evidence may have a more negative impact upon the repute of the justice system, if exclusion proves fatal to the prosecutions ability to prove its case.

IV. APPLICATION OF THE LAW TO THE FACTS OF THE CASE AT HAND

A. Was the Cursory Search of the Tablet a Search Incidental to Arrest?

87I should first note that the evidence demonstrates that the initial cursory search of the Blackberry playbook was a warrantless search. As such the Crown bears the onus of proving on a balance of probabilities that the search was authorized by law.

88The Crown seeks to establish that the search was lawfully performed as a search incident to a lawful arrest.

89I have come to the conclusion that Detective Krisko's search of the Blackberry Playbook was not truly incidental to Mr. Harder's arrest. I do so for the following reasons:

a. Constable McNaughton performed the arrest and initially seized the item. While this initial seizure may well have been reasonable, it was never thoroughly examined. Assuming without deciding that the seizure of the item by McNaughton was justified as incident to arrest, it is clear that Constable McNaughton satisfied himself that the Playbook belonged to Harder and that the item could be returned to Harder's control.

b. Once the Playbook was placed in the accused's property bag, that property bag was sealed, and that property bag was sent to the courthouse, the police returned to the accused the power to direct the dissemination of this property. In short, the police relinquished control, thereby relinquishing their seizure of the Playbook. For a considerable period of time before the cursory search, the item was no longer under seizure incident to arrest.

c. I know of no authority that permits the police to re-seize incident to arrest an item that the police have previously seized [incident to the same earlier arrest] and then returned to its owner. Counsel have likewise not pointed to any such authority.

d. There also existed a significant passage of time between the original seizure of the item and the subsequent cursory search of the item, about 16 hours.

e. This search did not occur at the scene of the arrest, nor did it occur in the police detachment. Instead, it occurred in the courthouse cells, where the item was being held for the accused's benefit by the police, who were acting as quasi trustees of the property.

f. The cursory search required the breach of a sealed property bag, a location which itself can be considered "a place" within the meaning of section 487 of the Criminal Code. In other words, in order to search the Playbook, Krisko had to first breach a sealed bag, sealed for the purposes of preserving the accused's right to privacy in the contents of the bag. In saying this, I recognize that the property bag is transparent and in a custodial facility, and so the expectation of privacy in the knowledge of the inventory of the items in the bag is greatly diminished, even if the expectation of privacy in the contents of the computers within the bag is not.

g. I have also considered whether or not the search was truly connected to the offence charged. Possession of stolen property is a lesser and included offence in the charge of robbery. If the accused came into possession of the stolen car because he was one of the robbers, then a search of the Playbook for evidence of his involvement in the robbery surely involves a search for evidence related to the offence for which the accused was arrested [possession of the stolen car]. I therefore conclude that the search of the Playbook was sufficiently connected to the offence charged, despite my concern that the search was speculative, a conclusion I reach because I have concluded that Krisko knew Harder did not match the description of the suspects.

h. To sum up, the cursory search occurred a considerable period of time after the original seizure, after another officer decided the item need not be searched incident to the arrest this officer initiated, after the arresting officer decided to relinquish control of the item back to the accused; and at a location removed in distance from the scene of the arrest and the scene of the accused's interrogation. Therefore, despite the existence of a logical nexus between the search and the offence charged, I have come to the conclusion that the search was not in fact incident to arrest.

B. Assuming the Cursory Search was Performed Incident to Arrest, Was it Conducted in Accordance with the Additional Requirements of Fearon?

90Despite my conclusion that the search of the tablet was not truly incidental to arrest, I will nevertheless consider whether Krisko's search of the tablet was performed in accordance with the protocol mandated by Fearon.

91In my view, Detective Krisko did not follow the requirements set down by Fearon for cell phone searches.

92Detective Krisko did not voice any police or public safety concern as a motivation behind the search. For example, he was not:

a. looking to get weapons off the street;

b. trying to prevent an imminent act of violence;

c. trying to prevent harm to informants or undercover police officers;

d. trying to remove dangerous drugs from the street before they were consumed or sold; or

e. trying to identify and locate other potential suspects as soon as possible.

93Instead, Detective Krisko was hoping to find an incriminating piece of evidence against a man in custody prior to his interrogation of that man, so that he could use that information during the interview. This rationale is effectively the only rationale credibly advanced, whether explicitly or implicitly, by Krisko. In that regard, I repeat my finding that I reject his assertion that he was in fact looking for evidence of the identity of the owner of the device.

94With respect to the discovery of evidence, it is clear that Krisko did not turn his mind to the issue of urgency. It is clear that he did not view the search as something that needed to take place prior to any application for a search warrant. He was not subjectively concerned about preventing the loss or destruction of evidence, which otherwise might occur during the delay occasioned by a search warrant application. Indeed, he presented as having no sense of urgency at all. He indicated, in fact, that it did not cross his mind to review the contents of the cell phone or tablet prior to Harder's interrogation. I pause to note here that I accept his evidence regarding his lack of any sense of urgency, whether to protect or preserve evidence, protect the public, or protect the police; however, as noted, I reject his claim that it did not cross his mind to review the contents of the tablet and cell phone. Indeed this claim runs counter to his testimony that he was interested in discovery communications between Harder and the other robbers, IF in fact Harder was one of the robbers.

95Also, while I have rejected his claim that he was searching for evidence of ownership and his claim that he was concerned these items were the product of car hopping, neither of these rationales give rise to a need to search the items prior to an application for a warrant. Moreover, after Krisko performed his interview of Mr. Harder, his involvement in the case seems to have ceased. He did not rush to prepare a search warrant application for the purpose of identifying further evidence on the tablet. Rather, his involvement in the matter ceased 4 hours after the start of his shift. I have no idea what Krisko did for the rest of his shift, but it does not appear to be work that focused on Harder's case, or more particularly, discovering the contents of the tablet. All of this inaction thus begs the question about the initial cursory search: where was the fire? Put another way, what was the hurry? In my view, Krisko's conduct demonstrates that he himself was in no hurry.

96I find that Detective Krisko conducted the cursory search in more or less a reflexive manner. This was exercise of a police power without the necessary reflection upon whether the exercise of this power was authorized by governing legal principles. Indeed, Detective Krisko candidly admits only passing familiarity with a portion of the governing principles [and the corresponding restraints upon the police power to search] laid down in Fearon. He likewise candidly admits lack of any specific knowledge or training about the Fearon case itself in the two years following the release of the decision. In brief, I distill Krisko's mindset thusly: I did the search because I can.

97Detective Krisko's lack of subjective urgency was shared by Detective Koiter. The Application for a Search Warrant did not occur until March 8, 2016, well over a month after Harder's arrest.

98The police search incident to arrest for evidence on a computer device like a tablet will only be a valid law enforcement objective when the police subjectively believe that the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest; and this subjective belief is objectively reasonable.

99Detective Krisko did not come to this trial prepared to explain why it was not practical, in all the circumstances of the investigation, to postpone the search until he could obtain a warrant. Indeed, he did not attempt at all to provide such an explanation. I conclude that Detective Krisko was simply unaware of the existence of this constraint upon his search power. When performing the search, he had no idea that his power to do so had to be predicated upon a subjective and reasonable belief that it was impracticable to postpone the search until he could obtain a warrant. Having regard to the evidence before me, I conclude that Detective Krisko was unworried about any prejudice occasioned by a delay in a search of the tablet, pending a warrant application.

100There are two explanations that most likely explain Krisko's lack of subjective concern about the impracticability of waiting for a warrant:

a. Detective Krisko was assigned a discrete task by his sergeant: the interrogation of Harder to determine what, if any, connection he may have to the robbery. Once he completed that task [without obtaining any kind of confession], his involvement in the file ended. In my view, he was simply hoping that his interrogation of Mr. Harder might be enhanced by the fruits of a cursory search of the phone. Apart from more minor tasks that were incidental to the primary task [e.g. Note-keeping, making a video recording of the interview, and preparing a will-state], Detective Krisko kept to the primary task assigned: conducting an interview of Harder. It is clear to me that he viewed his job description in the investigation of this particular robbery as a discrete one. After completion of the task, the baton was passed back to Detective Koiter.

b. Detective Krisko knew that his arrestee was not white and did not therefore match the description of the robbers. He was dealing only with a person of interest. He was acting solely on a hunch. He had no reasonable grounds to detain or arrest Harder for the robbery. He therefore had no reasonable grounds to apply for a warrant for the tablet in pursuit of the theory that Harder was one of the three robbers. He did not think it was impracticable to wait for a warrant, because he did not have grounds to seek the warrant. This was a fishing expedition, conducted in hopes of landing something that might support a subsequent warrant application. Unfortunately, it was a fishing expedition conducted without due regard to the requirement of satisfying himself and the court that it was reasonable to believe that it was impracticable to wait for a warrant application.

101Another major problem with Detective Krisko's search of the tablet is found in the manner in which Krisko performed the search. There are a number of related problems with the manner of the search:

a. First, Detective Krisko did not make contemporaneous notes of the search. The notes were made about 2.5 hours after the search.

b. Krisko admits his notes could have been better. He also admitted knowledge of the need for contemporaneous notes.

c. He also acknowledged that cannot rule out that he may have scrolled through other messages prior to arriving at the one he photographed. At this point, he simply has no independent recollection.

d. As a result, a reviewing court has no way of objectively scrutinizing the amount and nature of the messages reviewed by Detective Krisko.

e. The lack of a complete and contemporaneous record defeats the efficacy of any judicial review of his exercise of this "extraordinary search power".

102For the above-noted reasons, I have come to the conclusion that the search of Mr. Harder's Blackberry Playbook was not justified as a cursory search incident to Mr. Harder's arrest. I therefore conclude that the search of this tablet was performed in violation of Mr. Harder's right against unreasonable searches and seizures.

C. Was there a violation of Harder's Right to Counsel?

103Detective Krisko and Constable McNaughton both informed Mr. Harder of the reasons for his arrest. At the outset of Krisko's interview, it is apparent that the police and Harder had a common understanding as to the formal charges Mr. Harder faced at that point. They had informed him that he was being charged for the possession and occupancy of the stolen vehicle, and for possession of a small amount of marijuana.

104Detective Krisko did not inform Harder that his assignment was to determine whether or not Harder was implicated in the robbery that gave rise to the theft of the vehicle. Indeed, up to the point Harder exercised his right to counsel, no one advised Harder that the vehicle had been stolen during a robbery.

105Prior to his consultation with counsel, Harder had not been informed that he was a suspect in a far more serious crime than was the case at the time of his arrest and of provision of his right to counsel. He had not been given sufficient information to make an informed decision about whether to exercise his right to silence. Similarly, he was not provided with sufficient information which he could in turn provide to his counsel from whom he was seeking advice.

106Detective Krisko's stance on this issue reflects either a fundamental misunderstanding of the law or a deliberate flouting of it. In his view, given his lack of grounds to arrest or detain Harder for the robbery, he did not have to re-read Harder his counsel rights. What Detective Krisko overlooks is that Harder was under arrest, and that the exercise of one's right to counsel can only be meaningful if they truly know his/her jeopardy. Detective Krisko reasons that the jeopardy only crystalizes after he obtains an inculpatory statement. This reasoning reflects a misunderstanding of the law, at best, and at worst a somewhat uncredible rationalization for his conduct. The Evans decision is 26 years old. I have trouble accepting that Detective Krisko was unaware that he was required to re-advise Harder of his rights if the purpose Krisko's interrogation turned to the subject of the robbery.

107What is most troubling is that Krisko understood from the get-go that his mission was to attempt to connect Harder to the robbery, yet he did nothing to advise his detainee of this fact before the detainee sought legal advice.

108This is precisely what the majority in Evans was talking about when it indicated:

..that to hold otherwise leaves open the possibility of police manipulation, whereby the police -- hoping to question a suspect in a serious crime without the suspect's lawyer present -- bring in the suspect on a relatively minor offence, one for which a person may not consider it necessary to have a lawyer immediately present, in order to question him or her on the more serious crime

109I have no hesitation in concluding that Detective Krisko violated Mr. Harder's right to counsel by not advising, prior to Harder's exercise of his right to counsel, that the primary purpose of the interrogation was to determine Harder's possible role in the robbery.

D. Was there a Breach of the Confessions Rule?

110While Detective Krisko was unsuccessful in obtaining Mr. Harder's password for his cell phone, it was not for lack of trying.

111In his failed efforts, I conclude that Detective Krisko made a threat to Mr. Harder. As noted above, Krisko told Harder that the police were "going to write a warrant" for the phone and that, without a passcode, the police were "gonna get into it by possibly breaking it". He went on to say that, with a warrant, the police "would have the right to get into that phone by any means necessary." At trial, Detective Krisko maintained that he was not making a threat when making these remarks to Mr. Harder. He maintains that he was simply stating a fact. I reject his evidence on this point. It is a blatant threat aimed at securing a passcode that Mr. Harder did not want to provide.

112This attempt to override the right to silence is a fact that may be legitimately considered when considering whether any evidence ought to be excluded as a result of any Charter breaches.

E. The Amplification and Review of the ITO

113The entire purpose of the interview of Harder was to establish Harder's involvement in the robbery. Despite this overriding purpose, Detective Krisko did not properly advise Harder of his right to retain and instruct counsel in relation to the robbery investigation. Consequently, the entire interview was conducted in violation of Harder's right to counsel. I therefore conclude, pursuant to Grant, supra, that any mention of the interrogation in the ITO ought to be excised during amplification and review.

114The search of the tablet was performed in violation of Mr. Harder's right to be free from unreasonable searches and seizures. I therefore conclude that any reference to the fruits of this unlawful activity ought to be excised from the ITO. In that regard, I note the following:

a. Although Holder suspected "Adam" was behind the robbery, he did not know Adam's last name. He believed his Facebook profile to be Adam H or Adam Hazards.

b. Without the cursory search of the Playbook, the police would have been unaware of the Facebook profile Haz Zardous. Search of this profile revealed that Adam Beasoleil was the owner of that profile, who was associated with "Nikko", and who was also associated with Harder. None of these dots could have been connected without the search of the tablet. Discovery and connection of the "dots", if they are to be considered on review, must be facts lawfully known to the police at the time of the warrant application. They were not. These factors must therefore be excised from the ITO during the review process.

c. Information of Harder's drug trafficking activity, would not have been known to the police, but for the search of the playbook. This information must be excised from the ITO. I mention this despite the police making no attempt at drawing a logical connection between that activity and their grounds for the search.

115In my view, the amplification process reveals that crucial information is missing from the ITO:

a. Most importantly, the Information omits to mention Mr. Harder's race. He is not white and therefore does not match the description of any of the three suspects. This omission is misleading in the extreme. This issue was raised by the court during the course of the voir dire [a blended voir dire, in which the evidence on the voir dire will apply to the trial proper]. The Crown was afforded the opportunity to address this issue by calling the affiant [Detective Koiter] and/or by re-calling Detective Krisko. After some consideration, the Crown declined to call evidence to explain this glaring omission from the ITO. Given the significant impact of this omitted fact upon the viability of the warrant application, and given its unexplained omission, I draw a negative inference against the affiant of the ITO. In other words, I infer that the omission was deliberate.

b. Also, the ITO fails to mention that Holder himself identified 3 different people as possibly being behind the robbery. By indicating that Holder still believed that only one person might be behind the robbery, the Information was misleading. As with the omission of Holder's race, and for the same reasons, the circumstances lead me to conclude that the omission was deliberate.

c. The main theory of motive was Adam Beasoleil's jealousy over the fact that Nikko was living with Holder. That theory of motive, coupled with Harder's connection with Adam Beasoleil, formed a significant part of the police grounds to believe that Harder was one of the robbers. At paragraph 6, the Information specifically alleges that Holder was living with and dating Nikko – thereby implying that the romance and co-habitation were ongoing at the time of the robbery. This claim bolsters the theory of romantic jealousy. However, Holder had told the police that Nikko had moved out over a month earlier. Holder's parting of ways diminished the theory of motive. By incorrectly asserting that Nikko was still living with and dating Holder, the affiant provided misleading information to the presiding justice. The effect of this leading information is compounded by the fact that police failed to mention that Holder identified two other possible suspects. As with the other omissions, I infer that this omission was deliberate.

116Reduced to its bare essentials, the amplified ITO asserts that the accused is a one of the robbers,

a. despite the fact that he does not match the description of any of the robbers,

b. despite the fact that 4 days have passed between the robbery and the accused's possession of the vehicle stolen during the robbery,

c. despite the fact that the police unconditionally released the other two occupants of the vehicle, and

d. despite the fact that there existed some evidence to suggest that the accused may have been a thief [checking door handles in the parking lot, and possessing far more cell phones than one person could possibly use] who might otherwise be tempted to come into possession of stolen motor vehicle without having committed the robbery.

117In my view, if the ITO had indicated that Harder was not white and had also not included the unlawfully obtained information from the cursory search of the tablet and from the interrogation of Harder, no justice could have reasonably issued a warrant for the search of Mr. Harder's tablet.

118Consequently, I find that the presumption of the warrant's validity had been rebutted. I therefore conclude that the warrant was issued in violation of Mr. Harder's right to be free from unreasonable searches and seizures.

F. APPLICATION OF SECTION 24(2)

i. Obtained in a Manner that Infringed a Charter Right

119The infringement of Mr. Harder's rights began with the involvement of Detective Krisko in the investigation. His 4 hour involvement in the case gave rise to an unlawful cursory search of the accused's Playbook, a breach of the accused's Right to Counsel, and an attempt at procuring an involuntary utterance. The fruits of these Charter breaches were included in the ITO authored by Detective Koiter many weeks later.

120The Krisko's Charter breaches were temporally related to one another and had a causal connection to the drafting of the ITO and the resulting search warrant. The omissions in the ITO were both temporally and causally related to the ultimate search of the Playbook.

121Consequently, the messages extracted from the playbook during the execution of the warrant were obtained in a manner that infringed the Charter.

ii. Seriousness of the Charter Infringing State Conduct

122Detective Krisko opened the property bag of Mr. Harder and searched the contents of a tablet within, despite a conclusion and decision made by a fellow officer. He did so without taking sufficient pause to ask himself about his lawful authority for doing so. He acted on an insufficiently scrutinized assumption of power. He then conducted an examination of potentially intimate and personal messages without keeping a complete record of his search, without making a contemporaneous record of his search, without recalling exactly what he examined during his search, with an express lack of any urgency to conduct the search, and with a complete lack of any consideration of whether or not he could justify proceeding in this fashion without a warrant. His actions were the embodiment of the motto: "I did it because I can."

123As noted, Detective Krisko candidly admitted only passing familiarity with a portion of the governing principles [and the corresponding restraints upon the police power to search] laid down in Fearon. He likewise candidly admitted lack of any specific knowledge or training about the Fearon case itself in the two years following the release of the decision. In short his actions were conducted with an ignorance of and indifference to the governing legal principles and to the decisions of his peers. He cannot be said to have been acting in good faith. While I have insufficient evidence to conclude that the Detective Krisko's lack of training is a product of a systemic failure in his police force, I have ample evidence to conclude that, left to his own devices, Detective Krisko has no interest in getting up to speed on the legal principles that constrain the exercise of his power to conduct searches of cell phones. It is clear he did not even bone up on the subject in preparation for a trial that centered upon his non-compliance with the law governing his conduct. That indifference causes me significant concern about the long term impact of his conduct in this case upon the repute of the administration of justice.

124The cursory search Detective Krisko conducted was for a purpose of finding evidence that would implicate Mr. Harder as one of the robbers, despite evidence available to [and I infer, known by] him which [at the time of the search] excluded Harder as a suspect. The presence of this exculpatory evidence should have given rise to a more cautious, deliberate, and prudent approach. It should have caused an officer familiar with the principles in Fearon to ask himself whether he could justify he decision to not wait for a warrant application. The presence of this exculpatory evidence makes Detective Krisko's rash conduct all the more serious.

125Detective Krisko then conducted an interview for the express purpose of eliciting information that might implicate Harder in the robbery, without cautioning Mr. Harder about the robbery or providing him with his right to counsel with regard to the robbery. I am not certain whether or not to accept his explanation for his failure to re-read Mr. Holder's rights. Given the nature of his mission statement going into the interview, I am inclined to disbelieve his explanation. However, assuming this failure was based upon a misunderstanding of the law, I will observe this concerning fact: the Evans decision was released about 26 years ago, long before Detective Krisko became an officer. I am therefore deeply troubled by his failure to advise Mr. Harder of his rights in regards to the robbery investigation.

126I am similarly troubled by Detective Krisko's rationalization of his overt threat of damage to Harder's phone – it discloses a willingness to euphemize his conduct. Perhaps this euphamization also explains the breach of the right to counsel.

127Detective Koiter for his part drafted an ITO that was deliberately misleading. His deception by omission deprived a judicial officer of the opportunity to fairly assess whether the requirements for the issuance of a warrant had been met. That kind of omission strikes at the core of the repute of the administration of justice. The issuance of a warrant on the basis of such omissions constitutes a very serious breach.

128While each breach in and of itself can be considered serious, the multitude of breaches adds to the seriousness of the Charter-infringing state conduct.

129Therefore, viewed cumulatively, the Charter-infringing state misconduct was very serious. The court should disassociate itself from this kind of Charter-infringing state conduct. The seriousness of the Charter-infringing state conduct therefore favours exclusion of the evidence.

iii. Impact of Breach on Charter Protected Interests

130Even though the tablet was being held on his behalf by the court officers in the cell block, Mr. Harder still enjoyed a relatively high expectation of privacy in the contents of his playbook.

131The examination of an unknown number of his personal messages constituted a significant intrusion upon his privacy interests, in part because of the fact that the officer cannot tell us how many messages were viewed. The more thorough search of this same playbook after an unconstitutionally obtained warrant constitutes a very significant intrusion upon the privacy interests of Mr. Harder.

132The right to counsel was once referred to by G. Arthur Martin as a right of superordinate importance. It is a right that serves as a bulwark between the coercive power of the state and the detained individual's right to silence and right against self-incrimination.

See R. v. McKane 1987 CanLII 6794 (ON CA).

133In my view, the impact on the Charter-protected rights of Mr. Harder was significant, which therefore favours exclusion of the evidence.

iv. Effect of Admission/Exclusion

134This branch of the Grant analysis favours admission of the evidence, I believe. The evidence is essential to the Crown having any prospect of a conviction. There is some evidence in the messages between Mr. Harder and others that allows for the inference that he was involved in the robbery. The Crown concedes that without these messages, the identification evidence of Mr. Holder is inadequate to support a conviction. However, I would note the admission of the evidence does not lead to an inevitable conviction. Instead, it leads to a potential reasonable inference of guilt. It keeps the Crown in the game, but does not necessarily guarantee that the Crown prevails. Nevertheless, I conclude that this branch of the analysis favours admission.

v. Conclusion

135Having considered the seriousness of the state-infringing conduct and its impact upon the Charter-protected rights of Mr. Harder, as well as society's interest in the adjudication of the case on its merits, I have come to the conclusion that the evidence obtained as a result of the search of Mr. Harder's Blackberry Playbook must be excluded. To admit the evidence obtained during the course of the various breaches in this case would do further damage to the long term repute of the administration of justice.

Released: April 21, 2017

Signed: Justice C. A. Parry