Court File and Parties
Court File No.: CJ 9224 Date: 2018-08-02 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent – and – Freddy Mawick, Applicant
Counsel: Tom Meehan, for the Crown Stefan Dimitrijevic, for the Applicant
Heard: July 30 & 31, 2018
The Honourable Justice James W. Sloan
Reasons for Judgment
[1] The applicant brings this application under sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms.
[2] The applicant is facing two separate, one Count Indictments, alleging fraud over $5,000.
[3] The parties have agreed that my findings on this application will apply to both trials.
[4] The facts are not overly complicated.
[5] The police obtained information from several entities including United Parcel Service (UPS), GTA Financial and Investment Corp., Budachnist Credit Union, Cash House and Money Market without a warrant or production order.
[6] Some of the information obtained was then used in an ITO to obtain production orders and or warrants to obtain/verify further information.
[7] It is essentially the applicant’s position that there has been a warrantless seizure of information in breach of the applicant’s section 8 Charter rights.
[8] The applicant submits, once the information that was obtained as a result of the Charter breaches is excised from the ITO, the production order in relation to GTA could not have issued.
[9] The applicant further submits that the ITO as redacted does not reveal reasonable grounds to believe that Cash House possessed documents that would afford evidence in relation to the offences that are being investigated. Consequently the production order for Cash House could not have issued.
[10] It is further submitted that all the evidence obtained from UPS, GTA, Buduchnist, Cash House and Money Market ought to be excluded pursuant to section 24(2) of the Charter.
Alleged Facts
[11] It is alleged that the claimant Woodhouse received a letter in the Fall of 2014 stating that he had won $3.6 million in the lottery. He was then instructed to send numerous cheques and bank drafts payable to different individuals and companies under the guise that these payments were necessary to allow him to obtain his lottery winning.
[12] The claimant sent bank drafts and cheques payable to Kadeen Fletcher to 14-30 Eglinton Ave. W, Mississauga, ON, which is a UPS store. These cheques and drafts were dated as follows: October 9, 2014 – $6,000 US (TD draft), October 23, 2014 – $12,000 US (TD draft), December 2, 2014 – $11,400 CDN (certified cheque), February 10, 2015 – $10,700 CDN (certified cheque), March 10, 2015 – $27,300 CDN (two certified cheques for the same amount).
[13] The claimant sent certified cheques payable to Kadeen Fletcher, at 465 Apache Dr., Mississauga, ON as follows: December 30, 2014 – $23,300 CDN, January 21, 2015 – $11,500 CDN
[14] It is alleged that the accused lived at 65-455 Apache Ct., Mississauga, ON.
[15] The claimant sent two TD Bank drafts to14-30 Eglinton Ave. W., Mississauga, ON, payable to Expetech as follows: November 5, 2014 – $18,000 US (TD draft), November 21, 2014 – $10,000 US (TD draft)
[16] It is alleged the applicant registered a business name called Kadeem Fletcher.
[17] It is alleged that the applicant negotiated all of the certified cheques, except the one dated December 2, 2014, at GTA and that he cashed the two TD Bank drafts payable to Kadeen Fletcher, dated October 2 and October 23, 2014 and the TD Bank draft payable to Expetech dated November 5, 2014 at Money Market.
Facts
[18] Detective Constable Dan Cimermanic (officer) was assigned to the case on January 4, 2016.
[19] In May 2016 the officer spoke with and obtained information from a representative at UPS, to the effect that the TD certified cheques sent on December 30, 2014 and January 1, 2015 were actually sent to 65 – 455 Apache Ct., Mississauga, ON instead of 465 Apache Ct. and further that the December 30, 2014 cheque was signed for by “Kadeem”. The officer did not have a warrant or production order to obtain this customer information from UPS.
[20] On July 20, 2016, the officer spoke with Roma Bereza of Buduchnist whose company stamp appeared on the back of the TD Bank draft dated October 2 and 23, 2014. The officer was informed that Buduchnist was a clearing agency only and that an undisclosed money service business client negotiated the cheque. The officer did not have a warrant or production order to obtain this customer information from Mr. Bereza.
[21] On July 21, 2016, the officer spoke with Larisa Stern of GTA. Through this conversation he learned that the applicant cashed five certified cheques in the name of Kadeen Fletcher and he was the only person to cash cheques in that name. He also learned that the account records and a copy of the applicant’s driver’s licence would be provided pending a successful production order. The officer did not have a warrant or production order to obtain this customer information from Ms. Stern.
[22] On August 16, 2016, the officer submitted several production order applications for six financial institutions, including two that are relevant to this application being Cash House and GTA.
[23] On October 26, 2016, the officer called the UPS store located at 14-30 Eglinton Ave. W. in Mississauga and spoke with the owner, Suhaib Azim. He obtained customer information regarding the applicant without having a warrant or production order.
[24] On November 4, 2016, the officer arrested Boris Golan, the operator of Money Market, in relation to the two TD Bank drafts allegedly cashed by the applicant. After being interviewed and unconditionally released, Mr. Golan sent the officer documents containing the applicant’s customer information relating to the two TD Bank drafts. The officer obtained this customer information without a search warrant or production order.
[25] On September 20, 2017, the officer attended the UPS store at 14-30 Eglinton Ave. W., Mississauga, ON and spoke with Suhgaid Azim, who provided him with several records containing customer information of the applicant. These records were obtained without a search warrant or production order.
[26] On October 2, 2017, the officer communicated via email with Mr. Ang, the former owner of the UPS store located at 14-30 Eglinton Ave. W., Mississauga, ON. The officer obtained information without a warrant or production order.
[27] The Toronto Dominion Bank certified cheques dated December 30, 2014, ($23,200) and January 21, 2015 ($11,500) payable to Kadeen Fletcher and the UPS store receipts and shipping orders were all provided to the officer by the complainant.
[28] Similarly, the five TD Bank certified cheques dated February 10, 2015 ($10,700), March 10, 2015 (2 x $27,300), December 30, 2014 ($23,300) and January 21, 2015 ($11,500) were all provided to the officer by the complainant.
[29] Similarly the two USD bank drafts payable to Kadeen Fletcher, and cleared through Buduchnist and negotiated through Cash House, were provided to the officer by the complainant and were already in the officer’s possession when he spoke with Roma Bereza of Buduchnist.
Applicant’s Position
[30] It is essentially the applicant’s position that the seizure of the information from UPS, GTA, Buduchnist, Cash House and Money Market breached the applicant’s section 8 Charter rights and once the seized information is excised from the ITO, there would be insufficient information to obtain a warrant or production order.
[31] The applicant relies in part on section 7(3) of the Personal Information Protection and Electronic Documents Act (PIPEDA), which places limits on what personal information an organization can disclose and to whom.
[32] The applicant submits, that since the officer’s seizure of customer information from the subject business entities was not done in compliance with PIPEDA, the seizure of the information constituted a warrantless seizure.
[33] The law regarding search warrants also applies to production orders and therefore the test for review of the production order is the same as the Garofoli test.
[34] Applicant further submits, that once the illegally obtained information gathered from UPS, GTA and Buduchnist is excised from the ITO, the production order for GTA cannot stand. He submits that paragraphs 7, 26, 39, 49 and 50 of the ITO should be excised after which the ITO would not contain any grounds to believe that GTA or Cash House possessed any evidence respecting the commission of the subject offensives.
[35] With respect to the ITO the accused submits: Paragraph 7 – the accused had an expectation of privacy with respect to his financial information and the information contained in this paragraph was obtained without any judicial authorization. Paragraph 26 – the accused had an expectation of privacy in his use of UPS which he submits is akin to using Canada Post. Specifically he had an expectation of privacy into where the cheques were delivered and who signed for them. Paragraph 39 – the accused had an expectation of privacy with respect to whether he was a client of GTA, whether he cashed any cheques there and whether he cashed any cheques in the name of Kadeen Fletcher. Paragraph 49 – the accused had an expectation of privacy with respect to his financial information and in particular whether he deposited cheques in certain bank accounts or obtained cash Paragraph 50 – the accused had an expectation of privacy with respect to his financial information and the police, confirming that the documents were available, was in itself section 8 breach.
[36] The applicant argues that UPS is analogous to the Canada Post. He then relies in part on the case of R. v King, 2016 NLSC 59, where, after considering all of the evidence the court concluded that Canada Post was an agent of the RCMP at the request of the RCMP. It concluded that the accused’s section 8 Charter rights were violated when Canada Post conducted several warrantless searches of mail belonging to the accused, even though his expectation of privacy in mailed packages was diminished in comparison to the expectation of privacy within one’s home.
[37] The court went on to state that the conduct of the RCMP was deliberate and a “wilful or flagrant disregard of the Charter”. It should be noted that in that case the court also found that the police were less than truthful in applying for the judicial order.
[38] The accused also relies on the case of R. v Spencer, 2014 SCC 43, where the Supreme Court ruled that an individual has a privacy interest in his IP address and that the police should obtain an order to access that information. The court stated that one must not only look to the nature of the precise information sought, but also the nature of the information that it reveals.
[39] The accused submits, that similarly he has a privacy interest in his banking information and that the police cannot seek information about his banking information without judicial authorization.
[40] In essence the accused submits, that the police could not request information about his banking information from any of the entities or their employees who dealt with him, without judicial authorization.
[41] In addition, the accused points to s. 7(3)(c) of PIPEDA and argues that it informs police how to get information legally and is also informative on the objective reasonableness of the accused’s expectation of privacy.
[42] The applicant submits that all evidence collected by the officer meets the threshold test under section 24(2) of the Charter. Since it was obtained as a result of multiple Charter violations it should be excluded.
[43] The applicant argues that the Charter infringing behaviour was significant, was committed multiple times with multiple businesses and over several months. The officer knew or ought to have known that a production order or search warrant was required and he therefore engaged in misconduct either purposefully or negligently. Based on this reasoning, the 1st Grant factor heavily favours exclusion.
[44] Since the applicant has a high expectation of privacy in all the information obtained by the officer, the 2nd Grant factor also heavily favours exclusion.
[45] The 3rd Grant factor favours inclusion of the evidence, but only slightly since if the evidence obtained by the officer is excluded, this would not gut the prosecution’s case.
[46] The accused relies on the Ontario Court of Appeal case in R. v McGuffie, 2016 ONCA 365, 131 O.R. (3rd) 643 where the court stated at paragraphs 62 and 63:
[62] The first two inquiries work in tandem in the sense that both pull towards exclusion of the evidence. The more serious of the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third [page 660] inquiry, society’s interest in the adjudication on the merits, pulls in the opposite direction towards the inclusion of the evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case …
[63] In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly towards the exclusion of the evidence… If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever tip the balance in favour of admissibility… Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence …
Crown’s Position
[47] Since most of the evidence in paragraphs 7, 26, 39, 49 and 50 of the ITO was supplied to the officer by the complainant, the warrant/production order would have issued irrespective of the applicant’s position.
[48] The complainant supplied the officer with cancelled cheques, UPS parcel shipping orders, UPS store receipts and copies of bank cheques and drafts showing where they were negotiated.
[49] The officer had these items in his possession when he spoke to Larisa Stern of GTA and Roma Bereza of Buduchnist.
[50] In assessing whether or not the applicant had a reasonable expectation of privacy, the court must consider three factors: 1st - the subject matter of the search or seizure; 2nd - the nature of the privacy interest potentially compromised and 3rd - whether the applicant’s expectation of privacy was reasonable in the circumstances. There needs to be a full examination of the “totality of the circumstances”. (R. v Spencer, 2014 SCC 43)
[51] The ITO: Paragraph 7 – the officer makes a general assertion that multiple financial institutions confirmed that fraudulently obtained funds were negotiated through accounts held by the accused. Paragraph 26 – UPS confirmed delivery details and informed the officer that one of the shipments was signed for by “Kadeem”. No personal information of the applicant was revealed in this exchange. Paragraph 39 – the officer spoke to Larisa Stern of GTA regarding five TD certified cheques payable to Kadeen Fletcher, which, according to the rear side of the cheques were negotiated through GTA. He learned that the accused cashed the certified cheques and that he was the only person to cash cheques at GTA in the name of Kadeen Fletcher. He was further told that account records would be available to him for production if a production order were granted. Paragraph 49 – the officer, upon reviewing copies of the negotiated certified cheques and bank drafts drawn on the TD account, knew the items were payable to several parties and negotiated and deposited in the various bank accounts. The financial institutions involved confirmed that the funds were cashed and/or deposited with them and that they could provide account records if judicial authorization was obtained. No personal information of the applicant was sought or revealed in this exchange. Paragraph 50 – the applicant was able to confirm that the financial institutions involved retained documents which could be obtained via a production order. No personal information of the applicant was sought or revealed in this exchange.
[52] In summary the Crown submits, the subject matter of the seizure is the identity of the person who cashed fraudulently obtained certified cheques and bank drafts, confirmation that the impugned transactions took place and confirmation that the items being sought actually existed.
[53] It is readily apparent that only paragraph 39 of all the paragraphs which the accused seeks to excise, refers to any specific information sought or obtained from an institution which pertained to or identified the applicant personally.
[54] With the possible exception of paragraph 39, none of the other impugned paragraphs in the ITO involved an allegation of search or seizure let alone one engaging a high level of informational privacy.
[55] In the main, the paragraphs which the applicant seeks to excise from the ITO pertained to steps taken by the officer to review and verify the evidence provided to him by the complainant, and confirm that the bank and other records in which the applicant may have a privacy interest existed for potential seizure via a production order.
[56] With the possible exception of paragraph 7 and a portion of paragraph 39 in the ITO, the information obtained by the officer in the other impugned paragraphs cited by the applicant, were supplied by the complainant and therefore this material would have been part of the ITO irrespective of any seizure by the officer.
[57] While not admitting that there were any breaches of the Charter, the Crown submits that all the evidence should be admitted pursuant to a section 24(2) analysis. (R. v. Grant, 2009 SCC 32)
[58] Was there a serious breach of the applicant’s Charter rights? In this case the officer was looking to corroborate and buttress information received by the complainant. He did not deliberately mislead the issuing justice and appears to have been ensuring that the information he sought did in fact exist for the purpose of obtaining the production order. Therefore any Charter infringing conduct is likely to fall at the lower end of the serious spectrum.
[59] What was the impact of the breach on the applicant’s Charter protected interests? On the facts of this case, any breach was minimally intrusive. There was no search or seizure of a dwelling house, personal computer or cell phone. The officer sought judicial authorization for the accused’s banking and related records even if he obtained some related information in the course of his investigation.
[60] The Crown submits that with respect to the third inquiry for the section 24(2) analysis, the truth finding function of the upcoming criminal trial would be better served by the admission of the impugned evidence. In this case, since the officer acted in good faith at all times, the evidence in question is very reliable and important to the Crown’s case. The evidence is sought to be adduced in support of an allegation of serious fraud offences involving more than $150,000 dollars belonging to a senior citizen.
Findings
[61] This case is unusual because the claimant was able to supply the police with a great deal of information, unlike the cases involving wiretaps, computers and cell phones.
[62] That known information included documents such as cancelled cheques, bank drafts and UPS documents, which armed the police with dates, names of payees, and financial institutions into which the cheques were cashed or deposited.
[63] Armed with this information the police commenced their investigation.
[64] In addition to UPS, this led the police to investigate the financial institutions which appeared on the back of the cheques and or bank drafts. On July 20, 2016, this led the police to Buduchnist, who turned out to be only a clearing agency.
[65] This in turn led to the police inquiry to Larisa Stern of GTA, an entity through which several of the subject cheques had been negotiated. In addition to receiving clarification that the cheques had been negotiated through GTA, Stern gave information linking the accused to the negotiating of the cheques
[66] On the back of one of the certified TD cheques the name Mawik, which is similar to Mawick, appeared.
[67] I believe it goes without saying that a person has an expectation of privacy with respect to his/her financial affairs.
[68] However, in this case the accused left a public “trail of breadcrumbs to be followed,” with respect to how he received and negotiated the alleged fraudulent cheques.
[69] While in most cases it is preferable to obtain judicial authorization before requesting a suspect’s financial information, there is a fine line between where a police officer’s investigation must stop and judicial authorization must be obtained.
[70] Notwithstanding the accused’s able argument with respect to UPS being akin to Canada Post, this case is very different from the King case. The relationship between the accused and UPS was simply one of the accused paying for a service offered by UPS in the ordinary and routine business sense. This is not a case where the police enlisted the help of UPS to clandestinely monitor all or any of the accused’s parcels then and into the future, which were the facts in the King case.
[71] In fact it was the accused who instructed the complainant to send cheques and bank drafts to a certain UPS address. The police were simply following up to see what information UPS had with respect to past parcels, that contained the cheques and bank drafts that were sent to a certain address. Quite frankly, the police would likely have been negligent if they had not interviewed UPS on these issues.
[72] I would therefore not excise paragraph 26 of the ITO.
[73] With respect to paragraph 7 of the ITO, I find that the accused would have had an expectation of privacy with respect to his bank accounts and while the financial institutions may have been able to confirm that the cheques or bank drafts were negotiated through their companies, the information with respect to the accused’s accounts should not have been given without a warrant and should be excised.
[74] With respect to paragraph 39, and following the same logic referred to in the paragraph above, I would leave the main paragraph intact, but excise subparagraphs a, b and c.
[75] With respect to paragraph 49, I would not excise anything in this paragraph. No private information of the accused was released by the banks. The banks simply confirmed what appeared obvious from looking at the back of the cancelled cheques and bank drafts, that is, that the financial documents were negotiated through them.
[76] Whether or not paragraph 50 should be excised in its current form is essentially meaningless. It would be generally understood that financial institutions must maintain accounting records and the chance that such institutions would not have records is infinitesimally small. In addition, no private information of the accused is referred to in this paragraph.
[77] Based on the above reasoning and the minor excisions I would make, I would not exclude any of the evidence seized by the police.
[78] Even if I am later found to be incorrect in my assessment of the evidence and or law, I would find on the facts of this case that any breaches of the applicant’s rights were minor. I find this, because the officer was not on a fishing expedition and was simply trying to corroborate evidence he had received from the complainant. He did not deliberately mislead the issuing justice and therefore I would set any Charter infringing conduct that may be found at the very low end of the spectrum.
[79] I also find that the impact of any breach on the applicant’s Charter protected interests to be minimally intrusive. As stated before, it was the complainant who supplied the bulk of the evidence to assist the police in their investigation.
[80] I find that the third step of the section 24(2) analysis, overwhelmingly favours admitting the evidence. Based on the facts of this case, I believe the administration of justice would be called into disrepute if the evidence was not allowed to be presented at a trial.
[81] I therefore dismiss the application.
James W. Sloan Released: August 2, 2018
COURT FILE NO.: CJ 9224 DATE: 2018-08-02 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Freddy Mawick REASONS FOR JUDGMENT J.W. Sloan J. Released: August 2, 2018
