R. v. Crawley
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Kyle Andrew Crawley
Before: Justice C.M. Harpur
Heard on: March 27, 28 and May 8 and 11, 2018
Ruling on Mr. Crawley's Application to Exclude Evidence pursuant to Sections 8 and 24(2) of the Charter of Rights and Freedoms released on: June 7, 2018
Counsel:
Gregory Barker — counsel for the Crown
Adam Goodman — counsel for the accused
HARPUR J.:
Introduction
1Mr. Crawley is charged with (i) multiple counts of breach of a probation order made July 11, 2013 prohibiting him from accessing the internet and from possessing any device capable of accessing the internet; (ii) multiple counts of breach of an order made July 11, 2013 prohibiting him from communication with persons under the age of 16 years unless under supervision; and (iii) two counts of luring a person under the age of 16 years.
2The Crown intends to rely at trial on content found by the police in the course of searching a Huawei Y530-U51 cellular phone (the "Huawei Smartphone") which they had seized from Mr. Crawley. Mr. Crawley has applied to exclude this content from the trial evidence on the basis that the means by which it was obtained breached his Charter s. 8 right to be secure from unreasonable search and seizure. The s. 8 voir dire has been conducted in advance of the trial. Over the course of three days – March 27, March 28 and May 8, 2018 – I heard evidence from eight witnesses, all of them called by Mr. Barker for the Crown, as to what led to the search of the Huawei Smartphone, what was found on it and how the content was extracted. On May 11, 2018 Mr. Barker and Mr. Goodman for Mr. Crawley made their submissions. I reserved my decision until today.
Issues
3The defence submits that Mr. Crawley's s. 8 right was violated in four ways: (i) through the observation and noting by Detective Constable Mark Taylor on February 17, 2016 during surveillance of Mr. Crawley of his accessing a smartphone he was holding by tracing a "reverse C" on its screen, together with the subsequent use by the police of this password gesture to access the contents of the Huawei Smartphone; (ii) through the searching by the police of two smartphones (ultimately not found to contain inculpatory content) which were seized March 6, 2018 in the residence shared by Mr. Crawley and his common-law spouse, Jasmine Fidler; (iii) through the acquisition by the police of an inadequately specific warrant to search three electronic devices which they had seized, including the Huawei Smartphone; and (iv) through carrying out overly broad searches of these electronic devices even if the warrant was sufficient.
Issue No. 1: The observation, noting and use of the "reverse C"
4The undisputed evidence is that, in early February 2016, the police received complaints from the parents of five female children aged 10 and 12 who had received sexual communications, seemingly from an adult male. The children were interviewed, further investigation was conducted, and Mr. Crawley became a suspect. To the knowledge of the police, Mr. Crawley had been convicted of luring, sexual interference and possession of child pornography offences on July 11, 2013 and become subject at that time to both probation and prohibition orders restricting his conduct concerning communication with children under the age of 16 and prohibiting his possessing any device capable of accessing the internet.
5The police began to conduct surveillance of Mr. Crawley in mid-February 2016. On February 17, 2016 D.C. Taylor was engaged in such surveillance undercover in a public laundromat in which Mr. Crawley was seated. D.C. Taylor kept watch of Mr. Crawley and, unaided by any equipment, observed him hold a black Huawei cellular touchscreen phone, trace a swipe pattern in the form of a "reverse C" on its screen, and begin to send and receive texts with it (not activities which, counsel agree, necessarily involve access to the internet).
6The period of D.C. Taylor's observation of Mr. Crawley was from shortly after 12:32 p.m. until 1:15 p.m. During this period other persons entered and exited the laundromat. Throughout, D.C. Taylor was in plain view, although not sufficiently close to Mr. Crawley to be able to see the texts being sent and received.
7No arrest was made on February 17, 2016 but D.C. Taylor did make note of the swipe pattern used by Mr. Crawley and, later, following Mr. Crawley's arrest on February 29, 2016 and the seizure of the Huawei Smartphone at that time, provided his information about the pattern to other police personnel who initially disabled the Huawei Smartphone and secured its contents and subsequently extracted those contents and reviewed them, purportedly under the authority of a warrant.
8The evidence of OPP Forensic Analyst Mike Drury, who extracted and electronically sorted the contents of the Huawei Smartphone, was that, had he not been provided with the swipe pattern, accessing the Huawei Smartphone's contents would have been rendered more complex and time-consuming, although not necessarily impossible. In the event, however, Mr. Drury did use the swipe pattern to access, extract and review the contents.
9Mr. Crawley submits that the surreptitious acquisition of knowledge of the swipe pattern and its subsequent use by the police was an unreasonable search and seizure. On the basis of R. v. Patrick, 2009 SCC 17, R. v. Cole, 2012 SCC 53, R. v. Fearon, 2014 SCC 77 and R. v. Spencer, 2014 SCC 43, Mr. Crawley asserts a reasonable expectation of privacy in the contents of the Huawei Smartphone which he did not waive and which was violated by the actions of the police.
10The Crown responds that one must consider the two steps taken by the police with respect to the swipe pattern (observing and noting it on February 17, 2016 and using it to access the Huawei Smartphone subsequently) as distinct for Charter s. 8 purposes.
11As to the first of those steps, I accept Mr. Barker's submission that, as at February 17, 2016, the police cannot be regarded as attempting to search and seize the contents of the cellphone being used by Mr. Crawley in the laundromat. If there was a search and seizure, it concerned the swipe pattern, not the contents of the phone. Mr. Barker says that, even if the observation of the swipe pattern can properly be seen as a warrantless search, the Crown has met its onus to show the absence of any objectively reasonable expectation of privacy on Mr. Crawley's part since the observation was carried out in a public place pursuant to a lawful surveillance of Mr. Crawley as a suspect.
12In this regard the Crown relies on the decision of Wein J. in R. v. Levy, 2013 ONSC 4362. In that case, a border security officer placed himself close to Ms. Levy so as to overhear her side of a cellphone conversation which proved inculpatory as to her trafficking drugs. Ms. Levy's application to exclude the evidence was unsuccessful. Wein J. rejected her allegation of a s. 8 breach in the following terms:
Of course, in this case, there was no suggestion that Ms. Levy was under investigative detention while standing at the carousel. Border Officer Juliao simply positioned himself to overhear a conversation being made in a public place. Ms. Levy spoke in a low voice, as if to prevent herself from being overheard. But the officer, in plain clothes as if a disinterested passenger, was close enough to overhear.
13Ms. Levy simply took inadequate steps to ensure her privacy in a public place. No privacy interests were involved. She had no reasonable expectation of privacy in the circumstances, and by her own conduct lost the privacy she wanted.
I accept Mr. Barker's submission that the circumstances of Mr. Crawley in the laundromat here are similar to Ms. Levy's in the airport and that the principle expressed in that case is apt.
14Mr. Goodman makes the valid point, based on Spencer, that one does not necessarily abandon one's privacy interest in something by taking it into a public space. However, in my view the interest must be regarded as limited to such privacy as the public circumstances afford. Here, if one regards the something taken into public as the swipe pattern, Mr. Crawley's interest is one which was at risk of being significantly less than complete, given the obviousness of the password method and the presence in the laundromat of other persons. Whether one regards Mr. Crawley's reasonable expectation as to the confidentiality of his swipe pattern as radically diminished, given the public setting in which he executed it, or as being, rather, simply a hope that the pattern would not be observed and noted by D.C. Taylor (whose presence and proximity were patent) or anyone else in the laundromat, it ceased to be one on which he could rely for the purpose of Charter s. 8.
15Thus, I am persuaded that D.C. Taylor was entitled to make the observation as part of his surveillance and I do not regard him as under a duty to disabuse himself of what he had seen in order to avoid violating Mr. Crawley's constitutional right to privacy at the time.
16Turning to the eventual use by the police of the swipe pattern to examine the contents of the Huawei Smartphone, Mr. Barker submits that, by the time this was done, the police had in hand a warrant authorizing a search of the phone contents. That warrant did not, the Crown argues, authorize the search only if the police did so without resort to the swipe pattern; rather, the police were perfectly entitled to carry out the search using whatever means were at their disposal, including the observed swipe pattern. I agree.
17However, as the Crown acknowledges in making this argument, the lawfulness of the search of the Huawei Smartphone's contents thus depends on the success of the Crown's positions both that the warrant obtained for the Huawei Smartphone did in fact authorize a search of its contents and that the discovery of the contents was not the result of an over-broad search. For reasons subsequently set out in this ruling, I am not persuaded to the contrary by Mr. Crawley, on whom the onus rests for these issues.
18Thus, I find that the observation by the police of the swipe pattern on February 17, 2016, and its subsequent use by Mr. Drury to access the phone contents did not breach Mr. Crawley's s. 8 right.
Issue No. 2: The seizure and search of the cellular phones from Mr. Crawley's and Ms. Fidler's apartment
19Exhibit 12 in the voir dire is the search warrant obtained by the police on March 3, 2016 to search the dwelling house of Mr. Crawley and Ms. Fidler. Omitting several photographs which are referred to at paragraph 2 of Appendix 'A' of the warrant, Appendix 'A' is in the following terms:
This is Appendix "A" of the Information to Obtain a Warrant to Search of Kip WOHLERT dated the 2nd day of March 2016, Sworn at the City of Barrie, in relation to an application to search the dwelling house of Kyle CRAWLEY and Jasmine FIDDLER located at 796437 Grey Road #19 apartment #3 Blue Mountain, Ontario.
THINGS TO BE SEARCHED FOR:
- A computer system (grey coloured laptop computer) and its peripherals and related devices, including the video monitor, any input or output devices, and associated communication equipment, cables and connectors
- Devices or media capable of storing data
- Devices, media and documents containing computer passwords
- Operating systems and computer programs
- Computer system or software manuals and reference materials
I reasonably believe that an examination and analysis of these devices will afford evidence in relation to the offence~ listed in Appendix "B". The examination and analysis will be based on the charges identified in Appendix "B" and conducted in relation to the following categories:
a) Communications - in relation to the accused, additional potential suspects and victims.
b) A timeline of activity in relation to pre-offence, offence and post offence behaviour and usage.
c) Ownership details identifying primary ownership and primary user or user information.
d) Multimedia content which includes but is not limited to pictures, videos and sound recordings.
e) Passwords, encryption keys and access codes required for access.
f) Device and software configuration settings including geographic location information.
The results obtained from any one of these areas may not be sufficient to draw a conclusion. However when viewed as a whole, associations between individual results may provide a more complete picture. A final step in the examination and analysis will be to consider the results in their entirety in relation to the offences identified in Appendix "B".
To examine the computer system for the Instagram profile of "27Kyle1988" and the profile pictures below:…
To examine the above listed devices for communication between Kyle CRAWLEY and
"Chamber._.girl116" known as "Abby"
"cheerleaderforlife10"
Online communication with children under the age of 16 years old which would be in contravention of his probation order.
Documents showing residency, care and control of the residence located at 796437 Grey Road #19 apartment #3 Blue Mountain, Ontario.
20Acting on this warrant, the police entered Mr. Crawley's and Ms. Fidler's apartment on March 6, 2017 and seized a Samsung cellphone, a Samsung flip phone and a Huawei slide phone. Without seeking or obtaining any further warrant, the police submitted these phones to the Technological Crime Unit of the Ontario Provincial Police and they were forensically examined. The contents of these phones disclosed no use by Mr. Crawley to access the internet nor to communicate with children under the age of 16 years.
21Mr. Crawley's position with respect to this issue is that, notwithstanding the fact that no inculpatory evidence was found in the contents of the cellular phones found in the apartment, the police breached his s. 8 right by proceeding to search the contents of these phone without first having obtained a warrant to do so in addition to Exhibit 12. Mr. Crawley places particular reliance on R. v. Vu, 2013 SCC 60 at paragraphs 46 to 49, as follows:
[46] Prior authorization of searches is a cornerstone of our search and seizure law. As the Court affirmed in Hunter, the purpose of s. 8 is "to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen . . . . This, in my view, can only be accomplished by a system of prior authorization " (p. 160 (emphasis in original)). Dickson J. went on in Hunter to say that the requirement of prior authorization "puts the onus on the state to demonstrate the superiority of its interest to that of the individual" ( ibid. ) . The purpose of the prior authorization process is thus to balance the privacy interest of the individual against the interest of the state in investigating criminal activity before the state intrusion occurs.
[47] I have found that privacy interests in computers are different - markedly so - from privacy interests in other receptacles that are typically found in a place for which a search may be authorized. For this reason, I do not accept that a justice who has considered the privacy interests arising from the search of a place should be assumed to have properly considered the particular interests that could be compromised by a computer search. The distinctive privacy concerns that are at stake when a computer is searched must be considered in light of the purposes of s. 8 of the Charter . This calls for a specific assessment of "whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforceÂment": Hunter , at pp. 159-60. That is the threshold demanded by s. 8 of the Charter . Only a specific authorization to search a computer found in the place of search ensures that the authorizing justice has considered the full range of the distinctive privacy concerns raised by computer searches and, having done so, has decided that this threshold has been reached in the circumstances of a particular proposed search.
[48] Specific, prior authorization means, in practical terms, that if police intend to search any computers found within a place they want to search, they must first satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for. They need not, however, establish that they have reasonable grounds to believe that computers will be found in the place, although they clearly should disclose this if it is the case. I would add here that once a warrant to search computers is obtained, police have the benefit of s. 487(2.1) and (2.2) of the Code , which allows them to search, reproduce, and print data that they find.
[49] If police come across a computer in the course of a search and their warrant does not provide specific authorization to search computers, they may seize the computer (assuming it may reasonably be thought to contain the sort of things that the warrant authorizes to be seized), and do what is necessary to ensure the integrity of the data. If they wish to search the data, however, they must obtain a separate warrant.
22Here, Mr. Goodman notes, Exhibit 12 described the thing to be searched for as "a computer system (grey coloured laptop computer) and its peripherals and related devices…". It went on to specify an intention "to examine the computer system [my emphasis] for [a particular Instagram profile]". Nowhere in the warrant does one find any reference to cellular phones; the warrant is clearly focused on a particular computer which Ms. Fidler had initially agreed to surrender to the police and had subsequently decided to retain.
23I am unable to accept the Crown's submission that Exhibit 12 was sufficiently broad to encompass the cellular phones which were seized from the apartment. Mr. Barker relies on the analysis of L.M. Schwann J. in the Saskatchewan Queen's Bench decision of R. v. Varty, [2015] S.J. No. 375, who, in that case, found the following:
[60] On the whole, this ITO contained sufficient information, logically presented, for the issuing justice of the peace to understand that the police i) were investigating an electronic crime involving a computer, ii) believed computers would be found at the land location described in the ITO, iii) the computers would contain the evidence they were looking for, and iv) that they were seeking authorization to forensically examine any computer, hard drive or other such device seized pursuant to the warrant.
24The "things" described in the Varty ITO as affording evidence of the offence were " any devices which are capable of analysing, creating, displaying, converting, storing or transmitting electronic or magnetic or optical computer impulses or data. These devices include computers, computer components, computer peripherals…"[my emphasis]. That description is, in my view, quite distinguishable from "a computer system (grey coloured laptop computer)…" specified in the information to obtain in this case. Exhibit 12 would not have alerted the authorizing Justice of the Peace to the fact that the police intended to seize and to search other electronic devices which are effectively computers (as, counsel are agreed, the cellular phones seized in the apartment have the potential to be). For such devices, the concluding words of Cromwell J. in Vu are apt: "If they wish to search the data…they must obtain a separate warrant". Here, the police did not take that further step before examining the contents of the cellular phones seized from the apartment. Thus, they were in breach of Mr. Crawley's s. 8 right.
Issue No. 3: Was the warrant obtained to search the Huawei Smartphone sufficiently particularized?
25The defence describes this warrant – Exhibit 13 on the voir dire - as lacking sufficient particularity, in effect "authorizing the police to indiscriminately scour the seized electronic devices." Mr. Crawley relies on R. v. Khan, 2005 CanLII 63749, in which Minden J. accepted the defendant's position that a significant degree of particularity is required in the description of what is to be searched in a valid warrant.
26However, I note that Khan was a case involving, not cellular telephones, but the contents of business premises in the context of alleged fraudulent telemarketing. This was potentially a much broader field of search than Mr. Crawley's cellphones. I note as well that Khan was decided in 2005 whereas Vu, the seminal decision involving the search of computing devices such as cellular telephones, was decided in 2013.
27With respect to the search carried out by the police pursuant to Exhibit 13, I regard as apt the admonition against over-restriction of the terms of a warrant to search a computer expressed by of Cromwell J. at paragraphs 57 and 58 of Vu, as follows:
[57] Second, requiring search protocols to be imposed as a general rule in advance of the search would likely add significant complexity and practical difficulty at the authorization stage. At that point, an authorizing justice is unlikely to be able to predict, in advance, the kinds of investigative techniques that police can and should employ in a given search or foresee the challenges that will present themselves once police begin their search. In particular, the ease with which individuals can hide documents on a computer will often make it difficult to predict where police will need to look to find the evidence they are searching for. For example, an authorizing justice's decision to limit a search for child pornography to image files may cause police to miss child pornography that is stored as a picture in a Word document. In short, attempts to impose search protocols during the authorization process risk creating blind spots in an investigation, undermining the legitimate goals of law enforcement that are recognized in the pre-authorization process. These problems are magnified by rapid and constant technological change.
[58] Courts in the United States have acknowledged the difficulty of predicting in advance where relevant files might be found on a computer. While the Tenth Circuit once suggested that police should be restricted to searching computers by file types, titles, or key words (see United States v. Carey , 172 F.3d 1268 (10th Cir. 1999), at p. 1276), later cases have moved away from this approach: W. R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (5th ed. 2012), vol. 2, at pp. 968-69. For example, in United States v. Burgess , 576 F.3d 1078 (10th Cir. 2009), decided 10 years after Carey , the same court held that "[i]t is unrealistic to expect a warrant to prospectively restrict the scope of a search by directory, filename or extension or to attempt to structure search methods . . . . [S]uch limits would unduly restrict legitimate search objectives" (pp. 1093-94). More recently, in United States v. Christie , 717 F.3d 1156 (10th Cir. 2013), the court found that "[c]omputer files can be misnamed by accident, disguised by intention, or hidden altogether, leaving investigators at a loss to know ex ante what sort of search will prove sufficient to ferret out the evidence they legitimately seek": p. 1166; see generally O. S. Kerr, "Ex Ante Regulation of Computer Search and Seizure" (2010), 96 Va. L. Rev. 1241, at p. 1277.
28There is no question but that Exhibit 13 was providing authorization to search the Huawei Smartphone, among other electronic devices. In the information to obtain this warrant, D.C. Wohlert makes specific reference to the ease with which computer users can disguise computer contents and of the need "to examine the entire hard disk drive, including the directory structure, program files, and – in varying degrees – each and every file to complete a comprehensive search for electronic evidence" (ITO paragraph 55). The police were seeking a broad entitlement in searching the devices but, as the excerpt from Vu in the preceding paragraph indicates, this will not necessarily derogate from the validity of the warrant.
29Moreover, Cromwell J. was clear in Vu that even the broadest of warrants for the searching of computing devices does not confer carte blanche for execution. He stated the following at paragraph 61:
[61] By now it should be clear that my finding that a search protocol was not constitutionally required in this case does not mean that once police had the warrant in hand, they had a licence to scour the devices indiscriminately. They were bound, in their search, to adhere to the rule that the manner of the search must be reasonable. Thus, if, in the course of their search, the officers realized that there was in fact no reason to search a particular program or file on the device, the law of search and seizure would require them not to do so.
Thus, to be valid, a warrant need not set out for the police those programs or files which are to be searched and those which are not. The police are implicitly required to exercise reasonable (and reviewable) judgement in discriminating between the two.
30Accordingly, I do not regard Exhibit 13 or its acquisition as in breach of Mr. Crawley's s. 8 right.
Issue No. 4: Was the police search of the Huawei Smartphone overly broad?
31I agree with Mr. Goodman's submission that the focus of Exhibit 13 was not the programs or files in which the inculpatory content was found. Rather, the information to obtain makes repeated references to Mr. Crawley's "Instagram" profiles. However, I also agree with Mr. Barker's submission in his factum that "it is always difficult to predict in advance where relevant material might be found on a computer or similar device" and with his submission that, overall, the information to obtain would have made apparent to the granting Justice of the Peace that the proposed forensic examination would relate without restriction to the charges of Mr. Crawley possessing a device capable of accessing the internet and of communicating with persons under the age of 16 years.
32In the decision of R. v. Sop, 2014 ONSC 4610, relied upon by Mr. Crawley with respect to this issue, J.W. Sloan J. appears to have found that the information to obtain in that case centered on specific "Azov" child pornography computer files, to the exclusion of other such potential files, thus rendering a police search which did not seek to confine itself to Azov files to be a breach. Sop is distinguishable in the limitation contained in its ITO.
33I note as well that, in Sop, the police were found to have "combed through 40 TB of data which contained in addition to the alleged child pornography, adult pornography, lifestyle choices, sexual orientation, business travel, personal affairs and business affairs, all of which would have been extremely private and sensitive information to the applicant". In the case before me there is no evidence that D.C. Wohlert or Mr. Drury engaged in a review of computer files relating to Mr. Crawley's health or his finances or any other private matter apart from files apparently concerning communication with children under the age of 16. Mr. Drury testified at the voir dire that, with respect to at least one of the electronic devices he was examining, he noted that its last internet use occurred prior to the July 11, 2013 prohibitive orders and that, accordingly, he ceased to examine its contents.
34In sum, I am not satisfied on a balance of probabilities that the police engaged in a fishing expedition in respect of the search of the Huawei Smartphone so as to breach Mr. Crawley's s. 8 right.
Charter s. 24(2)
35The sole breach of Mr. Crawley's right to be free of unreasonable search and seizure in this case was the failure of the OPP to obtain a further search warrant on finding electronic devices in Mr. Crawley's and Ms. Fidler's apartment on March 6, 2017. I agree with Mr. Goodman that this failure was contrary to the clear obligation identified in Vu when that decision was released in November of 2013. D.C. Wohlert testified that the police sought specifically a grey laptop computer thought to be in Mr. Crawley's possession in the apartment and that the cellular phones seized are not peripherals for a laptop computer. He testified that, nonetheless, he regarded the warrant as authorizing a search of the cellular phones and that, for the last 12 years, he has used the format of information to obtain and draft warrant followed in Exhibit 12 as sufficient authority. He did not regard the police as requiring any further warrant.
36While I accept that this was the view of D.C. Wohlert (and of Mr. Drury who, to some extent, also searched these phones on the strength of Exhibit 12), I agree with Mr. Goodman that this misunderstanding cannot be equated with good faith and that the seriousness of this breach is substantial given the fact that it was systemic.
37However, it is common ground on this application that the Crown is relying on no inculpatory evidence gained through the searching of the electronic devices in Mr. Crawley's and Ms. Fidler's apartment. Further, nothing in the record on this application suggests that the searching of those devices resulted in any viewing by the police of Mr. Crawley's personal information. Thus, the impact upon Mr. Crawley from the unauthorized search by the OPP of these electronic devices must be regarded as minimal.
38The evidence which Mr. Crawley seeks to exclude pursuant to Charter s. 24(2) was obtained from the Huawei Smartphone seized from Mr. Crawley at the time of his arrest. That evidence appears to be reliable and forms an essential part of the Crown's case.
39Under a balancing of the factors which have been established in R. v. Grant, 2009 SCC 32, concerning the s. 24(2) analysis, I do not regard the breach of Mr. Crawley's s. 8 right in respect of the cellular phones seized from the apartment to call for an exclusion of the evidence obtained from the Huawei Smartphone. Excluding that evidence on the basis of the breach is more likely to bring the administration of justice into disrepute than is its inclusion.
Conclusion
40For these reasons, Mr. Crawley's application is dismissed.
Released: June 7, 2018
Signed: Justice C.M. Harpur
