WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
DATE: May 22, 2024 ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
ABEL HAILU
Before: Justice T. Lipson
Charter Ruling
Released: May 22, 2024
Counsel: S. Beauchamp and E. Davies, for the Crown K. Stein, for the applicant Abel Hailu
LIPSON J.:
RULING ON CHARTER ISSUES
1Mr. Hailu entered pleas of not guilty to Criminal Code charges arising out of an incident on October 14, 2022, in the Ottawa neighbourhood of Sandy Hill. He is alleged to have committed the following offences in relation to the complainant L.O.: sexual assault with a weapon, contrary to s. 272(2); uttering threats, contrary to s. 264.1; forcible confinement, contrary to s. 279; criminal harassment, contrary to s. 264; intimidation, contrary to s. 423(1); possession of a weapon for a dangerous purpose, contrary to s. 88(1); and kidnapping, contrary to s. 279.
2Mr. Hailu applies for an order pursuant to s. 24(2) of the Charter excluding all items and evidence seized from him on the basis that his right to be free from unreasonable search and seizure and his right to be free from arbitrary detention were infringed, contrary to ss. 8 and 9 of the Charter.
3At the outset, it is important to stress, particularly to Mr. Hailu, that this ruling is based on an evaluation of the evidence presented by the defence and the Crown only as it pertains to the Charter application. At this stage, the court is not determining whether the Crown has proven its case against the applicant beyond a reasonable doubt. The only issues being decided by this ruling are whether Mr. Hailu has established on a balance of probabilities that his Charter rights were violated, and, if so, whether evidence obtained as a result of any Charter breaches should be excluded. Final findings of credibility and fact can only be made following the presentation of all the evidence and submissions of counsel.
Overview of the evidence, issues and positions of the parties
4The application record discloses that on October 14, 2022, Ottawa Police responded to a 911 call of a suspicious incident. F.B., a friend of the complainant L.O., told police that she had been on the phone with L.O. who was on her way to see F.B. L.O. was walking when F.B. heard a male’s voice. The phone then went dead. F.B. tried without success to call L.O. L.O. made one call to F.B. and stated in a different language that she was with a male and it was against her will. F.B. called 911 and police started the search for L.O.
5The complainant alleges that she had gone to the LCBO at the corner of King Edward Avenue and Rideau Street and then made her way up King Edward Street to go to F.B.’s place on Nelson Street. The two were speaking on the phone as she crossed King Edward Street and onto a side street.
6A few steps into the side street, a male appeared right behind the complainant, startling her, and told her to hang up the phone. She tried to dismiss him and crossed the street. The male followed her, demanding her to hang up or she would be in trouble. He pulled up his shirt, showing a blue metallic butterfly-type knife in his front pocket. The male wore a black medical face mask, a dark blue hoodie that was done up around his head and under his chin and black gloves on his hands.
7Over the next two hours, the male forced L.O. to walk with him around the Sandy Hill area of Ottawa. He took a photo of her identification with his phone. He also took hold of her cell phone, went through it and located her apartment's lease agreement, with her address and parents’ names then inputted all of this information into his phone. The male made threats to her about what would happen if she did not do as he said, or if she brought attention to them. He told her he would kill her, that he would slit her throat, and that he would go to her home. He had told her that he should rape her, that she had a "nice ass" and would grab her buttocks and hold on if people were walking by them. The male held on to her wrist, tell her she better stop drawing attention to them if she was crying or trying to walk behind him, or he would hurt her.
8The male took L.O. to several spots where he stopped and sat, telling her that he would let her go. He told her that he needed to find the right spot, which L.O. believed was to rape and kill her based on his comments. The male told her that she was lucky because he had raped a girl on October 2nd, 2022, and had bashed her head in but that he had not done that to L.O. yet. L.O. begged for her life, telling him she would do what ever he wanted. She pleaded with him to let her go and not kill her.
9L.O. was taken to an alleyway in Sandy Hill. The male pulled out the knife and told her that if she bit his penis that he would slit her throat. He then put the knife in his back pocket, pulled down his pants exposing his erect penis and forced her mouth to his penis. He told her that she better not spit out any of his ejaculate. She would have to either swallow it or spit it into his underwear. If she didn’t comply, he would kill her. At some point the male stopped and told her that she needs some water because her mouth was dry. They then went to a convenience store. The male told her that he could not use his bank card or credit card because they are traceable. He looked for cash and checked the time, noticing how late it was. He then told her to forget about the water as he did not have time. The male wanted her to finish what she was doing.
10They returned to the alley. The male continued to threaten her, and forced her to continue to give him oral sex. A vehicle pulled into the alley and people walking dogs were walking by. The male stopped and said they needed to leave the area. They walked to the sidewalk, and the male told her he was going to keep his promise not to kill her. He then made her give him a hug. The male made it clear what would happen if she reported anything to police or the Sex Offender Registry. He told her that she had to make an arrangement with him in order for him to let her go – he would text her and she had to respond with what he told her to say, or he would come to her home as he had her address and her parents’ names. L.O. agreed and the male let her leave.
11L.O. was located by police and taken to the hospital for treatment. As she was being interviewed by police, she started receiving text and then Instagram messages from someone named “Jason”, whom she believed was her assailant.
12With L.O.’s consent, the police took over her phone and assumed her identity in order to converse with whomever had initiated the chat. The police further used the complainant’s phone, including messages, video calls and voice calls, to arrange a meeting with the suspect on the other end of the conversation. When police arrived at the arranged meeting location, Mr. Hailu was there and was arrested. Police seized his phone and backpack incident to arrest. The backpack contained alcohol, condoms and a black pair of gloves as well as a Canadian Tire receipt for a knife that had been purchased earlier in the evening.
13Police sought and obtained a search warrant to search the residence Mr. Hailu shared with his parents, who were the homeowners. He occupied a bedroom in the house. The police seized items of clothing, a knife said to have been used in the commission of the offences, personal belongings and electronic devices, including Mr. Hailu’s lap top computer.
14For the purpose of this application, the defence relies on the Crown theory that Mr. Hailu was the person communicating with the complainant, that he sent the messages seized from the complainant’s cell phone and his was the phone seized from him upon his arrest.
15Counsel for Mr. Hailu submits that his s.8 right to be free from unreasonable search and seizure was breached when the police took over the complainant’s phone to gather evidence against him. Mr. Hailu maintains he had a reasonable expectation of privacy in the messages. It is submitted that as a result of the s.8 breach, Mr. Hailu was arrested by the police and that the arrest constitutes a breach of s.9 right as, without the initial breach of s.8, the police did not have reasonable and probable grounds to arrest him.
16It is further submitted that the applicant’s s.8 rights were breached when he was subjected to a strip-search at the police station. The defence submits that Mr. Hailu’s s.8 rights were breached by the issuance and execution of warrants to conduct a search of his residence resulting in the seizure of a number of items as well as further warrants to examine the contents of all electronic devices seized. It is submitted that, because of these violations of Mr. Hailu’s right to be free from unreasonable search and seizure and arbitrary detention, all observations made and evidence seized should be excluded under s. 24(2) of the Charter.
17With respect to the text messaging evidence, the Crown submits that Mr. Hailu had neither a reasonable subjective nor objective expectation of privacy and therefore lacks standing to challenge its admissibility.
18The Crown also argues that the text messaging search was authorized by exigent circumstances. The Crown submits that requisite grounds existed to justify Mr. Hailu’s search incident to arrest as well as the strip search conducted at the police station. The Crown submits that the search warrants for the residence are facially valid, the search was conducted in a reasonable manner and there were reasonable and probable grounds to believe evidence would be found on the electronic devices seized on Mr. Hailu’s arrest and during the search of his residence. The Crown submits that there were no violations of Mr. Hailu’s Charter rights. If there were Charter infringements, the Crown submits that a balancing of the Grant factors militates in favour of inclusion of the evidence under s.24(2).
1. The text messaging between police and the applicant did not violate Mr. Hailu’s s. 8 Charter right
(i) The analytic framework
19Section 8 of the Charter guarantees that “everyone has the right to be secure against unreasonable search and seizure. The purpose of s. 8 is to prevent unjustified searches from occurring which can only be accomplished by a system of prior authorization, not one of subsequent validation. In most cases, judicial authorization must be obtained for searches and seizures: Hunter v. Southam Inc, [1984] 2 S.C.R. 145.
20In evaluating a s. 8 claim, the court engages in a two-step analysis. First the court determines whether there was a search or seizure. The court will determine that the state has conducted a search where it invades an area in which one has a reasonable expectation of privacy. This case also involves informational privacy. A search and seizure will occur where the state obtains personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. If there was a search, then the court must determine whether it was reasonable. In order to be considered reasonable, the search must be authorized by law, the law itself must be reasonable and the manner in which the search is conducted must be reasonable: R. v. Collins [1987] 1 SCR 285 at 276. Warrantless searches are considered prima facie unreasonable and the Crown must rebut the presumption by proving on a balance of probabilities that the search was authorized by law and was conducted in a reasonable manner.
21The onus is on the applicant to establish a reasonable expectation of privacy in the subject matter of the search. This means that Mr. Hailu subjectively expected the subject matter of the texts would be private and that this expectation was objectively reasonable. Here the Crown argues that Mr. Hailu did not have a subjective expectation of privacy in his text messaging to the complainant and that if he did have an expectation of privacy, it was not objectively reasonable.
22Mr. Hailu maintains he had a direct interest in the messages seized, a subjective expectation of privacy and that his expectation of privacy was reasonably held. He submits that his s. 8 right was breached when the police took over the complainant’s phone to gather evidence against him.
23The Crown says that Mr. Hailu has not shown that he had a reasonable expectation of privacy. Because the police did not interfere with any reasonable expectation of privacy, the Crown submits that he lacks standing to claim relief under ss. 8 and 24(2) of the Charter.
24In R. v. Mills, 2019 SCC 22 at para. 12, the court set out the four lines of inquiry that guide the assessment of expectation of privacy:
a. An examination of the subject matter of the alleged search:
b. A determination as to whether the accused had a direct interest in the subject matter;
c. An inquiry into whether the accused had a subjective expectation of privacy in the subject matter; and
d. An assessment as to whether the claimant’s expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.
25In R. v. Marakah, 2017 SCC 59 at para. 48, the Supreme Court of Canada held that the assessment of privacy must be content-neutral in the sense that the court is not to make the determination based on the contents of the messages. Again, the assessment of whether a person enjoyed a reasonable expectation of privacy is considered in the totality of the circumstances.
26The first two lines of inquiry are not in dispute. The Crown concedes that the subject matter of the alleged search were the text messages that Mr. Hailu sent to the complainant. The Crown also concedes that as a participant in the communication, Mr. Hailu had a direct interest.
(ii) Mr. Hailu had a subjective expectation of privacy
27Mr. Hailu did not testify in this application. While an applicant’s evidence can be helpful in establishing a subjective expectation of privacy, it is not necessary: R. v. Patrick, 2009 SCC 60 at para 37. He is entitled to rely on the Crown theory, and the other evidence in the case in support of his assertion of a subjective expectation of privacy. A subjective expectation of privacy can be inferred when a person sends a text message to a known recipient: R. v. Jones, 2017 SCC 60 at para. 20
28As counsel for Mr. Hailu submits, text messages can contain or reveal intimate details about an individual’s lifestyle and personal choices. This speaks to the biographical core of information that individuals want to keep private from the state. The focus is on whether there was the potential that Mr. Hailu would share personal information with the complainant recipient. The content of the messages seized is not relevant. Counsel for the applicant points out that Mr. Hailu texted with the complainant through a private messaging application. It is submitted that he was exercising control over his personal information and had a subjective expectation of privacy in his messages. Mr. Hailu would not have subjectively expected the police to read and copy the messages, much less assume control over the complainant’s phone.
29The Crown agrees that the subject matter of the alleged search are the text messages and that Mr. Hailu had a direct interest in the subject matter. However, the Crown argues that Mr. Hailu did not have a subjective expectation of privacy. Ms. Beauchamp submits that he took steps to obscure his identity when messaging the complainant in order to avoid detection by the police if L.O. went to the police. He set up a fake Instagram account to contact her for that reason. Unlike the situation in Mills, he did not instruct the complainant to delete the messages.
30I am satisfied that Mr. Hailu had a subjective expectation of privacy. In Marakah, Chief Justice McLachlin reaffirmed earlier jurisprudence that holds that the threshold for establishing such an expectation is low.
31I agree with the applicant’s submission that while a sender of messages may assume the risk that the recipient may share the message with someone else, that does not extend to assuming the risk that the state will intercept his or her electronic communications. The efforts made by Mr. Hailu to control the information by setting up a false Instagram account is sufficient evidence of a subjective expectation of privacy. The risk that L.O could have disclosed the texts to the police does not negate Mr. Hailu’s expectation of privacy against state intrusion. The accused’s expectation of privacy was based likely more on hope than common sense. His hope was that the combination of his alleged conduct on the night of October 14 as well as his threats against the complainant would deter her from disclosing the incident to and sharing their communications with the police.
(iii) Mr. Hailu did not have an objectively reasonable expectation of privacy
32The majority in Mills said that in order to determine whether an individual has an objectively reasonable expectation of privacy, the court must assess the totality of circumstances. Determining whether there is a reasonable expectation of privacy involves normative considerations concerning when Canadians ought to expect privacy. In Mills, the Court found that the accused had no reasonable expectation of privacy when he conversed online with a “child” he met online. The “child” was in fact a person created by a police officer. The accused chatted online several times with the child/police over the course of two months. The court held that there was no objective expectation of privacy when communicating with a child, who was a stranger to the accused.
33In Mills, Justice Brown emphasized the importance of the relationship between the two communicants. At para. 26, he acknowledged that many adult-child relationships are entitled to s.8 protection but that the relationship involving Mr. Mills was not one of them. Importantly, Justice Brown noted that there may be other types of relationships outside of what is worthy of s. 8 protection when it comes to electronic communications. (emphasis added) For the reasons set out below, I am of the view that the relationship between the applicant and L.O. is one of those outside of what is worthy of s. 8 Charter protection.
(a) The nature of the relationship between the applicant and the complainant
34The majority in Mills directed that a normative standard be applied to the framing of the relationship. The issue is whether the particular relationship is one which society values as worthy of s. 8 protection from state intrusion. Expectations of privacy must reflect a normative standard, rather than a purely descriptive standard: paras. 23-26.
35On the record before me, I agree with the Crown’s submission that the relationship between the complainant and the applicant cannot be simply defined as one between two adults. The term “relationship” as it is commonly used does not accurately describe the nature of the association between the applicant and the complainant which preceded the text messaging. L.O and Mr. Hailu were strangers. At the time of the messaging, their only interaction was for a period of two to three hours in the context of a kidnap-sexual assault incident. Mr. Hailu allegedly forced electronic communications onto the complainant because he had forced her give up her contact information during the commission of the offences. An available inference on the evidence is that Mr. Hailu’s purpose in texting L.O. was to intimidate the complainant. When he released her, he warned her that he had her personal information and would send associates to her residence “to make sure she was home safely.” The initial texts he sent to L.O. were potentially criminal in nature. The initial texts he sent her were scripted as was her expected response. L.O. promised to follow the script as a condition of her release.
36This is not a case like R v. Mootoo, 2022 ONSC 367. In Mootoo, the accused was charged with offences, including sexual assault. He and the complainant had communicated by text for several days and then met in person where the complainant spent the night with him and continued to communicate afterwards. The two parties communicated over a period of a couple of weeks. The court characterized their relationship as being “friends”. I agree with the Crown’s characterization of the parties in this case as being, if not complete strangers, the next closest iteration on the familiarity scale. This factor weights heavily against a finding that the applicant had a reasonable expectation of privacy in his text messaging with L.O.
37Nor is this a case like R. v. Campbell, 2022 ONCA 666, 163 O.R. (3d) 355 (C.A.) where police took over a drug-dealer’s phone to communicate by text with the accused about a pending heroin and fentanyl transaction. The conversation started as a dialogue between two drug dealers, but the police decided to continue the exchange by surreptitiously assuming the identity of one of them. The court found that prior judicial authorization would have been required for the police to carry on their deceptive correspondence with the accused. The situation in Campbell was similar to Marakah, except that the messages were about drugs and not firearms. However, the privacy interests were the same. Unlike in Campbell, the applicant was originally communicating with a stranger before the phone takeover and, as in Mills, the police in the case at bar knew the nature of the relationship between the applicant and the complainant from the outset.
38I have considered several helpful trial court decisions bearing some similarities to the case at bar and which address the issue of reasonable expectation of privacy.
39In R. v. Bear-Knight, 2021 SKQB 258, the court found that the accused had no reasonable expectation of privacy in messages he sent the complainant, in circumstances similar to the case at bar.
40Mr. Bear-Knight was charged with sexual assault and assault of the complainant he had just met. On the day after the alleged offence, he messaged by Facebook indicating he was the “guy from the other night” and offered his apologies. The police obtained a warrantless copy of the messaging and the accused sought to have it excluded under ss.8 and 24(2) of the Charter. The court distinguished the case from Marakah on the basis that Marakah involved an electronic conversation between two participants engaged in a common enterprise. The court found there was no reasonable expectation of privacy because the relationship was very new. The accused had known the complainant for little more than 24 hours. The court found that it was not objectively reasonable for the accused to expect with any degree of comfort, that she would not share the message with others, including the police.
41In R. v. Morgan, [2020] O.J. 2330 (OCJ), Poland J. held that there was no reasonable expectation of privacy where the accused was charged with sexual assault. Mr. Morgan did not know the complainant prior to the night of the offence. Mr. Morgan had found her at the roadside, highly intoxicated. The two ended up at the accused’s home where he sexually assaulted her. He began to message her the next day. She replied using her mother’s cell phone. Mr. Morgan sought the exclusion of these messages under s.8.
42One of the factors the court relied on when concluding there was no objective expectation of privacy was the fact that Mr. Morgan had never exchanged messages with the complainant before and, therefore, he could not really know who he was communicating with. In the case at bar, the situation is similar. The court also found that the text communication, as here, took place with a party who was not previously known to him and so he had no ability to measure the likelihood that the conversation was indeed private.
43As in Bear-Knight and Morgan, the relationship between the applicant and the complainant is one of two individuals having only met during the course of the alleged offences and where the accused individuals sent texts to the complainants after the offence and are the only electronic communication between the parties. The fact that the messaging that is the subject of the search is the first electronic messaging between the parties is a significant factor weighing against a finding of reasonable expectation of privacy.
44As in Morgan, the parties in the case at bar were strangers prior to the alleged offending conduct. The offending conduct occurred in person over the course of a few hours. The messaging only occurred after the offence and was initiated by the applicant. The messaging was the first electronic communication between the parties. As well, at the time of messaging, the police were aware of the nature of the relationship.
45Another important factor to be considered in assessing the nature of the relationship between L.O. and the applicant is his alleged use of threats. During the commission of the offences, it is alleged that Mr. Hailu threatened to harm L.O. and her family if she went to the police. Applying normative considerations, it only makes sense that a person who threatens another has no right to expect that the person threatened will keep the threats private: see R. v. Pelucco, 2015 BCCA 370 at para. 61.
46It is alleged here that the applicant referenced his in-person threats in his initial texts to the complainant.
47In R. v. Hayer, 2022 BCSC 747, the court found there was no objective expectation of privacy in threatening messages that Mr. Hayer sent to the victim’s mother. Mr. Hayer was charged with second degree murder. The accused texted the victim’s mother that the victim had a drug debt she had to repay, or her son would be killed. The court applied normative considerations such that normal privacy expectations for text messages were removed because of the threatening nature which defined the relationship between the accused and the other participant in the messaging. The court commented at para 81 that while Mr. Hayer may have held a subjective expectation that the text messages would remain private, “the relationship between the parties and the context of the conversation is sufficient to negative the ordinary expectation of privacy in a text message exchange”.
48In summary, I find that because of the nature of the relationship between the applicant and the complainant, I am not satisfied that Mr. Hailu has a reasonable expectation of privacy worthy of s.8 Charter protection. I share the view of the trial judge in Morgan at paras 84 and 86 who applied the normative consideration in Mills and extended it to include the protection of victims of sexual assault. From a normative standpoint, text communications between an alleged perpetrator of a knifepoint kidnapping and sexual assault and his victim who are strangers to each other do not have a reasonable expectation of privacy. This is not a relationship worthy of section 8 Charter protection when it comes to electronic communications.
(b) Nature of the police investigative technique
49In the assessment of reasonable expectation of privacy, the court is also required to examine the nature of the police investigative techniques used. As stated in Mills at para. 26, the degree by which the investigative technique reduces the sphere of privacy of Canadians forms part of the normative consideration in determining whether there is an objective expectation and thus whether s. 8 applies.
50The defence submits that the investigative technique used in this case involved the police deliberately using the relationship between the applicant and the complainant to further the investigation. It is submitted that the police knew or ought to have known that their investigation would potentially breach the applicant’s privacy rights.
51I respectfully disagree.
52Here, the police were able to obtain information about the nature of the relationship from L.O. They were able to rely on the complainant’s initial utterances and subsequent videotaped statement, her demeanour as well as the statement of her friend who had called 911 while the kidnapping was in progress in their assessment of the nature of the relationship between the applicant and L.O.
53When the complainant’s alleged attacker began to text her, L.O. consented to the police taking over her phone and communicating with him in order to identify and find him. The police undertook an online undercover operation whereby Detective Constable Carr impersonated the complainant to lure the suspect to a location where police could arrest him. In my view, the investigative technique used in this case was reasonable and appropriate given the urgency of the situation. It was the best avenue of investigation available to the police in order to locate and identify L.O.’s assailant. In my view, the police employed an appropriate investigative technique whereby Mr. Hailu’s privacy interests necessarily and properly had to give way to the urgent law enforcement objective of the investigation to ensure public safety.
54This is not a case where the police intruded into an unknown relationship as in Marakah. The police in this case knew the nature of the relationship between the suspect and the complainant at the time they started texting him. The undercover officer correctly, in my opinion, concluded that the suspect did not have a reasonable expectation of privacy at the point she began responding to his texts.
55Because the applicant did not have a reasonable expectation of privacy in his text messages, I conclude there was no breach of his s.8 Charter right to be free of unreasonable search and seizure. The text messaging eventually led to the identification and arrest of Mr. Hailu. His arrest was lawful and did not contravene his s. 9 Charter right to be free of arbitrary detention or arrest.
The Grant analysis under s.24(2) of the Charter
56If I am in error and the applicant did have a reasonable expectation of privacy in his communications with the complainant/undercover officer, I must consider the factors set out in R. v. Grant, 2009 SCC 32, to determine whether the evidence of those communications should be excluded.
57The Grant test provides the framework for determining whether admitting evidence which was obtained in a manner that includes violations of Charter rights will bring the administration of justice into disrepute. Paragraph 71 of the judgment sets out three levels of analysis. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) 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 (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
(i) Seriousness of the Charter-infringing conduct
58I agree with the Crown that the seriousness of the Charter-infringing conduct is at the lower end of the continuum of possible state misconduct. The law is unsettled in the area of account takeovers. In Mills, the court was divided on the appropriate test to determine reasonable expectation of privacy. Counsel were unable to find a case with facts similar to this case. Where the state of the law is unsettled, this diminishes the seriousness of the alleged state-infringing conduct.
59I am also of the view that Detective-Constable Carr’s opinion that she did not require judicial authorization for the investigative technique she used was sincere, well-intentioned, and reasonable. The officer did not adopt a cavalier approach with respect to the applicant’s Charter rights. She was fully aware that the suspect and L.O. were strangers whose only interaction was in the context of a knife-point kidnap and sexual assault event. As well, investigators obtained L.O.’s consent to obtain her phone and take over her account. I am satisfied on the record before me, that the police were acting in good faith and did not ignore well-known Charter principles.
(ii) The impact of the breach on the applicant’s Charter rights
60Assuming there was a s.8 Charter breach, Mr. Hailu had a reduced expectation of privacy in the texts he sent to L.O. He was unable to control what the complainant would do with the messages, including turning them over to the police. The reduced expectation of privacy reduces the impact of the breach. As well, Mr. Hailu was messaging with someone he believed to be the complainant who was essentially a stranger he had interacted with once. As the Crown correctly submits, this was not an intrusion into a highly guarded relationship. As I indicated earlier in these reasons, this was an alleged offender-victim relationship, unlike the case in Marakah where the messaging was between accomplices. Finally, the messaging by the undercover officer was limited to communications over only a number of hours. In my view, these factors reduced Mr. Hailu’s expectation of privacy and the invasiveness of the search.
(iii) Society’s interest in adjudication of the case on the merits
61This factor strongly favours the inclusion of the evidence. On the record before the court, the exclusion of this evidence would gut the Crown’s case on the issue of identity. The identification of the applicant resulted from the messaging he engaged in. The evidence gathered incident to Mr. Hailu’s arrest and from the search of his residence derived from his identification as the alleged perpetrator because of the text messages. The texts provide compelling and reliable evidence of identification. The exclusion of such evidence would, in my view, undermine the truth-seeking function of a criminal trial and bring the administration of justice into disrepute. Given the seriousness of the allegations, society’s interest in the adjudication of this case on its merits is high.
62In my view, a balancing of the Grant factors militates in favour of inclusion of all of the text messaging evidence.
2. The doctrine of exigent circumstances does not apply in this case
63The Crown submits that if the court finds that there was an expectation of privacy, the search of the messaging was justified by the exigent circumstances doctrine due to the danger to public safety.
64While I found that there was no reasonable expectation of privacy in this case, I will, for the purpose of determining this issue raised by the Crown, assume there was.
65In R. v Patterson, 2017 SCC 15 the Supreme Court indicated that for the doctrine of exigent circumstances to apply, the Crown must show that:
- The search was compelled by urgency;
- The urgency called for immediate police action to preserve evidence, officer safety or public safety, and
- The situation was one where taking time to obtain a warrant would pose a serious risk to those imperatives.
66There is ample evidence that exigent circumstance based on public safety existed in this investigation. As the Crown submitted, there were reasonable grounds to believe that there was an immediate risk to public safety given the nature of the alleged offences and the fact that the perpetrator had not been located. According to the complainant, the suspect had told her he had committed a serious assault another woman just days before his involvement with L.O. Also, the complainant told the police that the suspect had captured personal information of not only herself but also of loved ones during the kidnapping. He had threatened to harm her and them if she did not comply with his demand to stay in contact with him or go to the authorities.
67The nature of the communications initiated by the suspect provides further grounds of urgency. He wrote “Check your text messages”, “Do not block this account and accept the request I sent you” and “You don’t remember the agreement”. After a missed call by the suspect, he wrote “No answer? Alright then.”
68There can be no doubt that urgent police action was required to identify and apprehend the perpetrator. Given that the suspect and the complainant were strangers, that he had not identified himself to her and was using a fake account to message her, the police had no other option other but to undertake responsive communications with the suspect. There was an immediate need for the police to respond in the way they did to prevent the suspect from committing further offences against women or fulfill his threats against L.O. or her loved ones.
69However, the third Patterson criterion is not met. The Crown failed to show that it was not practicable to obtain an authorization, if one was needed. From the outset, police took the position, as indicated by Detective Constable Carr in her testimony, that there was no need to obtain an authorization to conduct text messaging with the suspect. In their view, Mr. Hailu did not have a reasonable expectation of privacy and so no authorization was required.
70The evidence is that police located L.O. at approximately 11:33 p.m. on October 14, 2022. Mr. Hailu began to text her at 1:22 a.m. on October 15. The police interviewed the complainant for about three hours, finishing at 4:15 p.m.. She signed a consent form for the data on her phone at 4:40 pm. Detective Constable Carr began texting the suspect at 5:38 pm, some 15 hours later after the suspect began texting. The messaging between the officer and Mr. Hailu continued sporadically throughout the evening of October 15 and into October 16 when the suspect agreed to meet up with L.O. The arrest of Mr. Hailu occurred at 11:15 pm.
71If the police wanted to obtain an authorization, they had ample time to do so, or at least try to do so. For that reason, the third Patterson criterion has not been established and the doctrine of exigent circumstances cannot apply to justify the messaging search and seizure.
3. There was no section 8 Charter breach with respect to the strip search of the applicant
72On October 16, 2022, police arrested Mr. Hailu at 11:14 p.m. and took him to Ottawa Police Headquarters. They arrived at the station at 11:35 pm. He was turned over to Detective Bernard, a forensic identification officer, at 11:52 pm. At 12:04 a.m. on October 17, Mr. Hailu was returned to the arresting officer, Constable Carmo. The accused called duty counsel at 12:04.
73While these events were happening, Sgt. D’Ornellas, the sergeant on duty in the cell block at the station, received a call at 11:30 from Detective Colucci who advised him that patrol officers were transporting Mr. Hailu to the station. She gave him information about the charges and circumstances of the offence. Detective Colucci requested the officer to seize all of Mr. Hailu’s clothing for evidence of the sexual assault and, in particular, whether there were any bodily fluids on his clothing. The sergeant then advised Detective Bernard that there were reasonable and probable grounds for a strip search. Sgt. D’Ornellas delayed Mr. Hailu’s call to counsel in order for the strip search to take place. This was to make sure that there was no “disruption or loss of evidence” while Mr. Hailu was alone in the lawyer’s booth. Sgt D’Ornellas advised Mr. Hailu of all of this.
74Mr. Hailu was escorted to the identification room and presented to Detective Bernard and a special constable. Privacy was ensured. The search took place behind a curtain. The search started at 11:53 p.m. and was completed at 12:01 a.m. Once completed, Mr. Hailu was provided with a full-length jump suit and taken to the lawyer’s booth. No force was used nor samples taken.
75Detective Bernard conducted the search. He took photos of the accused including photos of him standing in his underwear. He also told Mr. Hailu the reason for the search. Mr. Hailu turned over his clothing to the officer. Detective Bernard tried to make the process “as comfortable as possible.” At one point, Detective Bernard observed the accused’s genital area to ascertain if there were any injuries or scratches. This took place behind a closed curtain. The officer did not touch the accused. The special constable was not present for this. The whole process took about five seconds. Mr. Hailu was never completely nude during the search. No recording was made of the search.
76Counsel for Mr. Hailu submitted there was no legal basis for the strip search. A pat down search had already been conducted, a cell phone and backpack seized and there was no suggestion of anything concealed on the applicant’s person. It was contrary to the requirements set out in the jurisprudence, in particular R. v. Golden, 2002 SCC 83.
77I respectfully disagree. The search itself was conducted in a reasonable manner at the police station by a male officer. The search was authorized by an officer acting in a supervisory capacity. There were reasonable grounds for the search. The preservation of evidence required that Mr. Hailu’s clothing be seized for forensic analysis in connection with the alleged kidnapping and sexual assault. As well, the complainant had told the police that her assailant had forced her to perform oral sex on him. She told police that during the sexual acts she applied some pressure with her fingernails to his skin during the act and the suspect ordered her to stop. It was reasonable for the officer to observe Mr. Hailu’s genital area for any marks or bruises. There was no touching by the officer, just a momentary observation that was conducted in privacy and not recorded. I am satisfied that the guidelines set out in Golden were respected in this case. There was no section 8 Charter breach.
78There was no section 8 breach in connection with the seizure of Mr. Hailu’s phone and knapsack upon his arrest. The seizure of the phone, the knapsack and its contents was lawful as being incident to a lawful arrest.
4. There was no section 8 Charter breach in connection with the search of Mr. Hailu’s home and electronic devices
79Police sought and obtained a warrant to search Mr. Hailu’s residence. This is a residence he shared with his parents, who were the homeowners. He occupied a bedroom in the house.
80The applicant takes issue with the term of the warrant providing for the search of “cellular phone, and all electronic devices associated to Abel Hailu.” Of particular concern is the Asus laptop seized from Mr. Hailu’s bedroom.
81Counsel for the applicant submits that the language of the Information to Obtain (ITO) is overly broad to justify the seizure of electronic devices, including the Asus laptop. The Affiant asserts for various reasons set out in para. 6.02 that “it is reasonable to believe that the targeted data is on any electronic device in the place to be searched”. The targeted data consisted of photos of the identification of L.O. as well as messages to her. It was unclear to the investigators that the phone seized from Mr. Hailu was the same phone used prior to, during or immediately after the commission of the alleged offences. There was uncertainty whether the conversation between the undercover officer and the suspect was completely captured on the phone in the possession of Mr. Hailu at the time of his arrest or on other devices. Counsel submits that the ITO does not establish a link based on reasonable and probable grounds between computers in the Hailu residence and the alleged offences.
82I respectfully disagree. I am of the view that the affiant does provide sufficient evidence to support reasonable and probable grounds to believe evidence may be found on other electronic devices in his residence.
83Mr. Hailu was arrested two days after the alleged commission of the offences. As pointed out in paragraph 6.02 of the ITO, that although the phone seized on arrest was used to communicate with the officers, it was not possible to know whether this device was used during the commission of the offence two days prior. The device used during the offence would contain evidence of the offence as L.O. had said that her assailant had copied her information and that of her family in his phone. The affiant pointed out that the suspect was using a social media app to contact the complainant. Social media accounts can be accessed through any number of devices. The applicant could have been using a device, other than the one he was arrested with, when sending the messages to L.O. prior to his arrest. The officers did not know at the time of the ITO whether the device located upon arrest captured some, all or none of the communications. The affiant pointed out that data can be located on multiple devices. Data is transferable and can be saved, shared or backed up to different devices. The affiant turned his mind to the fact that data is fluid and can be reproduced passively or automatically and thus be located on different devices without the user having done so themselves. Finally, the affiant indicated in the ITO that cell phones have pairing capability. Given that a cell phone was used in the commission of the offence and thereafter, the transfer and fluidity of data is even more probable. In the ITO, the affiant provided his investigative experience regarding data. The authorizing justice was entitled to rely on reasonable or common-sense inferences: see R. v Niro, 2026 ONCA 160 at para 71. The Crown rightly submits that in 2024 the aspects of data described in the ITO are subjects of common knowledge.
5. The data range sought in the warrant was not overly-broad or unreasonable
84The ITO and warrants with respect to the electronic devices seized contain a date range of October 7th to October 16th, 2022. The complainant does not allege having met or communicated with the applicant prior to the incident of October 14, 2022.
85Ms. Stein, on behalf of the applicant, submits that there is no basis for the search to predate October 14th 2022. Relying on R. v. Jones (OCA)at paras. 40-42, the applicant submits that date range specified is not related to the legitimate targets respecting which the police have reasonable and probable grounds, as articulated in the warrant. It is submitted that the search of the applicant’s devices and browsing histories was overly broad and not reasonable.
86I respectfully disagree. It was not unreasonable for the affiant to believe that the offences in this case were planned with steps taken in advance of October 14th, 2022. There is evidence that prior to the commission of the offence, the applicant had armed himself with a knife. There is evidence that the knife he used was purchased prior to the offence. He brought a condom with him before allegedly committing the offences. Also, the complainant had told investigators that the applicant took steps to actively minimize and destroy evidence, when he demanded that the complainant spit his ejaculate into his underwear. This, if true, was indicative that the applicant had prior knowledge and research on the issue. The reasonable ground for the pre-offence dates is supported in paragraph 8.07 of ITO by the affiant’s experience that planning and deliberation could be located in the data. With respect to the date of the offence to the date of arrest, some 2-3 days later, there were reasonable grounds, given the use the applicant made of his cell offence during the offence (including capturing L.O.’s information and that of her loved ones) and communications with the undercover officer during those dates.
87The applicant also submits that items seized extended beyond what was permitted by the warrant, or what was called for in the circumstances. For example, the officers searched Mr. Hailu Sr.’s home office and seized electronic devices as well as his basement office.
88I am satisfied that the manner of execution of the warrant was reasonable. The applicant resided at the residence and had access to the basement areas. Electronic devices are portable and can be kept in many locations. As well, there is no evidentiary basis to substantiate that the areas in question were exclusively those of Mr. Hailu Sr. Photos of the basement and various areas indicate use by multiple members of the residence. The basement office is also furnished with a bed with linens, a nightstand and a small desk and a computer.
Conclusions
89I have concluded that the messaging between Detective Constable Carr posing as the complainant did not constitute a search or seizure because Mr. Hailu did not have a reasonable expectation of privacy and, therefore, lacks standing. His resulting arrest was lawful as was the search incident to arrest.
90The search of Mr. Hailu’s home and devices found in the residence was authorized by valid search warrants which were not unduly broad or overreaching. I am also satisfied that the search warrants were executed in a reasonable manner.
91Mr. Hailu’s application to exclude evidence is dismissed.
Released: May 22, 2024 Justice T. Lipson