Her Majesty the Queen v. Tal Amdurski and Thomas Graff

COURT FILE NO.: CR-19-40000381-0000/CR-21-10000003-0000 DATE: 2022-04-28

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – TAL AMDURSKI and THOMAS GRAFF Defendants/Applicants

COUNSEL: Nate Jackson, for the Applicant/Defendant Amdurski James Mencel, for the Applicant/Defendant Graff Monica Gharabaway, for the Crown/Respondent

HEARD: February 10, 2022, remotely by Zoom

BEFORE: Molloy J.

THIS CASE IS SUBJECT TO A PUBLICATION BAN PROHIBITING THE PUBLICATION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT

REASONS FOR DECISION

(Charter Application to Exclude Evidence)

A. INTRODUCTION

[1] A mother of two school-age girls gets up just before 7:00 a.m. on a Wednesday morning in June to start the routine of getting her daughters ready for school. She discovers that her 13-year-old daughter, “S”, is not in the home. The mother then sees that S has sent her a text saying she is having coffee with a friend and that she is going to a doctor because she does not feel well. She adds, “Don’t ask me where I am.” The mother has been worried about her daughter’s unusual behaviour over the previous two weeks — unexplained lesions on her buttocks; a previous “disappearing act” when she said she was having coffee with friends, which proved to be untrue; purchasing things with money she said she got from a source at her father’s house, which was also a lie; and feeling exhausted and ill in the mornings for no apparent reason. The mother searches S’s room and finds S’s iPhone 4, which S was using because the screen on her new iPhone 6 was broken. On her 13-year-old daughter’s phone, the mother finds messages between her daughter and a person identified in her contacts as “Tal Basically My Pimp”. The messages show that S has been working as a prostitute for this man, getting into Ubers that he sent for her in the middle of the night, and going to hotel rooms to have sex with strangers for money. The mother takes pictures of these text messages. She also calls the police and reports her daughter missing.

[2] By the time the police arrive, S has returned home. Her mother shows the text messages to the officers, and a criminal investigation begins, leading to the arrest of the accused Tal Amdurski. He is charged with multiple serious sexual offences including sexual assault and human trafficking. The complainant in respect of each charge is S and the offences are alleged to have occurred between June 1 and June 13, 2018.

[3] The accused claims a privacy interest in the text messages between him and S, maintains that the mother had no right to turn them over to the police, and argues that the police should have obtained a search warrant for the phones before looking at the messages. He seeks to have them excluded from the evidence at trial.

[4] The application is dismissed. First, s. 8 of the Charter, which protects people from unreasonable search and seizure by state action, does not apply to this situation. There was no seizure by the police because the text messages were voluntarily turned over to the police by a concerned parent. Second, even if s. 8 is engaged, the accused had no reasonable expectation of privacy in these messages and therefore no standing to assert a Charter right violation. Third, the mother had authority to provide consent to the police for the seizure of the text messages, and in any event S also consented. Therefore, even if there was a seizure by the police, it was not unreasonable and did not violate section 8. Finally, even if there is a breach of s. 8 of the Charter, the evidence is admissible under s. 24(2) of the Charter. My detailed reasons follow.

B. THE APPLICATION

[5] Based on information in the text messages, police obtained surveillance video footage from a Best Western Hotel for the date and time S was to meet a customer in Room 244. S is shown on the video going in and out of the room. Best Western voluntarily provided the police with the name of the person who rented the room — the co-accused Thomas Graff. [1] Both Mr. Graff and Mr. Amdurski are also seen on video footage going in and out of Room 244. They are connected to a vehicle in the parking lot, and a parking lot surveillance camera recorded the license plate number. That led the police to an Enterprise Rent-A-Car agency, which provided the name and contact information of the man who had rented the car. It was the accused, Tal Amdurski.

[6] Mr. Amdurski was arrested and charged with multiple sexual offences including sexual assault, sexual interference, child exploitation, human trafficking, financial/material benefit from trafficking persons under the age of 18, and procuring, recruiting or exercising control of a person under the age of 18.

[7] Mr. Amdurski now applies for an order excluding the text messages S’s mother found on her daughter’s phone from the evidence at trial. He argues that he had a reasonable expectation of privacy in the text messages and that the police breached his Charter rights by seizing them without a warrant and without the consent of S. The sole issue for me to decide is the admissibility of the text messages S’s mother photographed on her daughter’s phone.

[8] The Crown submits that there was no breach of s. 8 of the Charter, that the police had valid consent from both S and her mother to seize the text messages, and that, in the alternative, even if there was a breach, I should admit the evidence under s. 24(2) of the Charter.

C. THE TEXT MESSAGES AND CELLPHONES

[9] Using her own phone, S’s mother photographed a series of text messages she found on her daughter’s phone. The messages were between S and a person she identified in her contacts list as “Tal Basically My Pimp”.

[10] S’s mother showed these texts to the officers who had responded to her missing person report and later emailed them to one of the officers working on the investigation. S’s mother testified that she photographed every message between S and “Tal” that was on the phone.

[11] Most of the messages are about times and places of appointments and Ubers that would be picking S up.

[12] In one message, S complained about men not wearing condoms and says she believed she contracted a sexually transmitted infection. She also complained at one point about being in pain after anal intercourse.

[13] In one exchange, S told Tal that the “soonest I can do is tomorrow night” to which Tal responded “U sure u not around tonight? I can get u $500 overnight!”

[14] In another exchange, S asked “Do I have to see that person?” Tal replied, “It’s booked he’s a sweetheart. Ur car is 1 min away. It’s wayyyyyy easier than this past guy I promis.”

[15] On June 15, 2018, S and S’s mother met with the police. At that meeting, S’s mother turned over to Det. Pischedda both of her daughter’s cellphones: the iPhone 6 (which S had been using at the time, having paid for the repairs out of her earnings) and the iPhone 4 (containing the text messages that S’s mother had photographed using her own phone). S’s mother also provided the police with the passcodes for the phones. The police sought S’s consent to download and retain everything on the two cellphones, and S agreed. However, S was otherwise largely uncooperative with police and, at that initial stage, refused to provide a formal statement, although she changed her mind several months later and provided a full video-taped statement in August 2018.

[16] On July 12, 2018, the police applied for and obtained judicial authorization for the documents, records, and surveillance seized from the Best Western Hotel, Uber, PayPal, and Enterprise Rent-A-Car. The police did not seek a warrant to search either of the cellphones.

[17] On July 15, 2018, D.C. Pischedda spoke to S’s mother about the messages she had photographed on her daughter’s phone and she emailed to him the photographs she had taken of the text messages.

[18] On April 23, 2021, S’s mother was examined for discovery. In cross-examination, defence counsel suggested to S’s mother that, because she was worried about her daughter, she “went to her room and took a look at her phone without her consenting to that, fair enough?” S’s mother responded:

No, I wouldn’t say that’s fair because a 13-year-old doesn’t get to consent whether her mother can look at her devices, which I pay for. So, the child had left her – her phone on her desk in her room, the door was open, and I’m her mom.

[19] Officers at the Toronto Police Service (“TPS”) downloaded all of the material from S’s cellphones. In August of 2018, those phones were returned to S’s mother. The TPS has lost the downloads of this material. The photographs taken by S’s mother are the only remaining tangible evidence of what was in the text messages. [2]

D. SECTION 8 CHARTER RIGHTS DO NOT ARISE

[20] At the material time, S was 13 years old and lived with her mother. There will come a time in a child’s life when she has privacy rights over personal property that take priority over the rights of a parent. One can quibble about what age that might be, but it is most certainly not a 13-year-old living at home with her mother and subject to her mother’s authority and control. Examining your 13-year-old’s phone and her social media accounts is responsible parenting. Doing so when your child has gone missing from her home is, to use the vernacular, a no-brainer.

[21] S’s mother had every right to look at her daughter’s phone. Given what she found there, she had every right to contact the police and invoke their assistance in finding her missing child. Further, even after the child had returned, the mother had every right to turn over to the police the information she found on her child’s phone, which she reasonably believed was evidence of criminal offences in which her child was the victim. Further, I find that the police had every right to look at that evidence and to act on it, without needing to obtain a search warrant.

[22] Mr. Amdurski has no standing to object to S’s mother giving this material to the police. Section 8 of the Charter applies only to state action. As stated by the Supreme Court of Canada in R. v. Dyment, “the essence of a seizure under s. 8 is the taking of a thing from a person by a public authority without that person’s consent”. [3] In this case, s. 8 is not invoked because the property at issue was not seized by state action. It was voluntarily provided to the police by S’s mother. Further, the very next day, assuming a 13-year-old has the legal capacity to consent or withhold consent (which is debatable), S herself agreed that the police could retain her phones and download anything on them.

[23] In R. v. Orlanis-Habsburgo, the Ontario Court of Appeal dealt with a situation in which a service provider gave information to the police about excessive energy use by a house indicating a possible marijuana grow operation. The Court found that this was part of an ongoing arrangement between the police and the service provider and that, because they were acting together, this constituted state action engaging s. 8 of the Charter. However, Doherty J.A. noted, in obiter, that s. 8 would likely not be engaged if a whistleblower independently provided material to the police:

I have considerable difficulty with the submission that s. 8 is engaged if the police look at information in which an accused has a legitimate privacy interest, even if that information is brought to the police by an independent third party acting on its own initiative. On that approach, s. 8 would be engaged if a “whistleblower” took confidential documents belonging to her employer to the police to demonstrate the employer’s criminal activity. Must the police refuse to look at the documents to avoid violating the employer’s s. 8 rights? As Duarte teaches, it is one thing to say that Canadian values dictate that the state’s power to decide when and how it will intrude upon personal privacy must be carefully circumscribed, and quite another to say that an individual’s private information is cloaked in the protection of s. 8 no matter how that information comes to the police. [4]

[24] Mr. Amdurski relies on the Supreme Court of Canada’s decision in R. v. Marakah as support for his position that he had a privacy interest in the text messages he sent to S. I will deal later with the separate issue of whether Mr. Amdurski had a privacy interest in these messages, which in my view he did not. However, Marakah does not assist Mr. Amdurski on the issue of whether S’s mother (and then S herself) turning over the cellphones to the police constituted a seizure by the state, engaging s. 8 of the Charter.

[25] Two cellphones were seized in Marakah. Each phone contained text messages exchanged between Mr. Marakah and his co-accused, Mr. Winchester, about illegal transactions in firearms. Mr. Marakah’s phone was seized pursuant to a warrant to search his home. That warrant was found to be invalid, rendering the seizure of Mr. Marakah’s phone unreasonable. The central issue was whether the same text messages seized from Mr. Winchester’s phone, also seized unlawfully, could be used against Mr. Marakah at trial, and in particular whether Mr. Marakah had a privacy interest in the messages and standing to challenge their seizure even though they were on somebody else’s phone.

[26] Ultimately, the Supreme Court of Canada ruled that Mr. Marakah did have a privacy interest in those messages and held that were not admissible against him. However, the seizure at issue in Marakah was clearly a state seizure and there was no question that, at least in that sense, s. 8 Charter rights were triggered. [5]

[27] In R. v. Reeves, the accused and his spouse had shared a computer when they were living together. After being charged with domestic assault, the accused was subject to a no-contact order prohibiting him from being in the home without his spouse’s consent. While he was subject to that prohibition, his spouse found child pornography on the shared computer, called police, and signed a consent form allowing them to take the computer. The police detained the computer for four months and then searched it without a valid warrant. The Supreme Court of Canada held that this was a violation of the accused’s reasonable expectation of privacy with respect to his personal information stored on the computer. However, the Court was careful to distinguish this situation from one in which a private citizen offers an item to the police, specifically declining to rule on whether this would engage s. 8 of the Charter. Karakatsanis J. (for the majority) held:

The Crown also argues that rejecting its approach will prevent victims of crime who have received threatening or harassing text messages from showing them to the police. However, the issue of whether s. 8 of the Charter is engaged when a private citizen offers information or an item to the police in which another person may have a reasonable expectation of privacy does not arise in this case (see Marakah, at para. 50; Dyment, at p. 432; R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at paras. 21-35). Indeed, Gravelle did not bring the computer to the police, but rather signed a consent form authorizing them to take it. (She testified that she signed the form because she did not think she had a choice.) The issue of whether s. 8 is engaged when a citizen voluntarily brings an item to the police remains for another day. This case deals squarely with the taking of a computer by the state. [6]

[Emphasis added]

[28] R. v. Mills dealt with a situation that is somewhat analogous to the case before me. [7] An undercover officer posing as a 14-year-old girl kept copies of sexually explicit communications between Mr. Mills and the person he believed to be a 14-year-old girl. The majority decision in that case dealt with the admissibility of the evidence under s. 8 of the Charter. However, Karakatsanis J. wrote separate concurring reasons (joined by Wagner C.J. and Moldaver J.) in which she held that the officer creating a copy of the messages he received did not amount to a search or seizure within the meaning of s. 8 of the Charter. Arguably, if the undercover officer turning these electronic communications over to the prosecution did not amount to search and seizure, then surely if the recipient had actually been a 14-year-old girl and she turned them over to the prosecution, that would not constitute state action either. However, given that the majority in Mills disposed of the case on a different basis, the decision of Karakatsanis J. is obiter, and the issue remains an open question. I deal with Mills in more detail later in my reasons on the issue of reasonable expectation of privacy.

[29] Thus, given that the text messages were voluntarily provided to the police by S’s mother and S, the issue of Mr. Amdurski’s standing to challenge the right of the police to view and act upon them has not been conclusively determined in the jurisprudence to date, and both the Ontario Court of Appeal and the Supreme Court of Canada have explicitly stated this to be the case.

[30] It is appropriate to consider this question based on the principles and values inherent in the respect for privacy rights on the one hand and the protection of vulnerable members of our society on the other.

[31] In Marakah, Moldaver J. (with Côté J. concurring) wrote a strong dissent, taking a wholly different approach to the issue of standing than McLachlin C.J. for the majority. Moldaver J. would have decided the standing issue on the basis that because Mr. Marakah had no control over the text messages on somebody else’s phone, he likewise had no standing to challenge their admissibility. Moldaver J.’s approach was conclusively rejected by the majority, and I am bound by that decision.

[32] However, one of Moldaver J.’s objections to the approach taken by the majority was his concern that such an approach could mean that individuals who had complete control over information on their electronic devices would be unable to share that information with others, including the police. He considered such a restriction to be antithetical to the fundamental values underlying a free and democratic society, stating:

Sharing a record of a private communication may be motivated by things as diverse as an opportunity for personal gain, a temptation to gossip, a request from a third party, or for no reason at all. At the extreme end, where a private communication takes the sinister form of a death threat or sexual luring of a child, an individual’s sharing may be motivated by interests as sacrosanct as an individual’s personal safety, dignity and liberty: see R. v. Sandhu, 2014 BCSC 303; R. v. Lowrey, 2016 ABPC 131, 357 C.R.R. (2d) 76; R. v. Craig, 2016 BCCA 154, 335 C.C.C. (3d) 28.

Indeed, in some cases, a private communication may involve physical violence, as in the case of a person capturing a video of verbal and physical abuse by his or her partner. It is unrealistic to say that a person will have a reasonable expectation of privacy in records of communications over which that person has no control and which are under the exclusive control of someone else. That sexual predators and abusive partners could maintain a reasonable expectation of privacy in records of communications within the exclusive control of their victims illustrates the implausibility of this proposition.

Not only is this proposition implausible, it is also at odds with what this Court has recognized as a hallmark of a free and democratic society — namely, the freedom of individuals to share information as they wish: see Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at paras. 48-49 and 86; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at para. 125. Section 8 protects “standards of privacy that persons can expect to enjoy in a free and democratic society”: see Wong, at p. 61. Given that our society recognizes that people may freely share information as they see fit, it is unreasonable to expect privacy in informational subject matter that falls within the exclusive control of another person. Such an expectation would run counter to what society has deemed both valuable and fundamental — the freedom to share information. [8]

[Emphasis added]

[33] Later in his dissenting reasons, Moldaver J. raised a number of practical problems with following the approach taken by the majority and the implications this could have for law enforcement and the administration of justice. For example, he questioned the rationale of preventing victims or witnesses of a crime from sharing information with the police and noted the difficult issues that could arise in assessing the issue of consent by vulnerable complainants, including children, adults with mental disabilities, and the elderly. He noted:

Moreover, the process itself could be needlessly harmful, exposing children or other vulnerable witnesses to cross-examination about consent given to the police to search their phones or other devices for private communications that may involve threats or sexual predation: see Sandhu (2014), Lowrey and Craig. Ultimately, the resulting uncertainty is likely to cause police to seek judicial authorizations in most cases out of an abundance of caution to take basic investigative steps such as obtaining records of electronic communications between witnesses and accused persons.

The increased need for these judicial authorizations could strain police and judicial resources in an already overburdened criminal justice system. Investigations would be slowed, more judicial officers would be required, and the administration of criminal justice as a whole will suffer. And the effects do not end at the investigative stage.

At the trial stage, each of the above repercussions could significantly complicate and prolong proceedings. … [9]

[34] I now have before me precisely the situation predicted by Moldaver J. in his dissent. Concerned that her child was the victim of a sexual predator, a mother turned over to the police the evidence she found on her child’s phone. The phone was under the control of the mother and was paid for by her, although she allowed her daughter to use it. She supervised her daughter’s use of the phone and knew the password to access it. Further, the child herself consented to the police downloading the subject material from her phone. Apart from the fact that Mr. Amdurski had sent text messages to S that were still on the cellphone, he had no control over or connection to the phone or its contents. It is difficult to see how this would be different from a person discarding incriminating private material in the trash, which is well-accepted as constituting abandonment of any privacy interest. Notwithstanding that, I accept that the majority decision in Marakah appears to support that there is a difference, and that I am bound to apply that law. [10]

[35] However, the Supreme Court in Marakah, and again in Reeves, expressly left open the question of standing in a situation where an individual freely turns over to the police text messages found on a phone. That is this case. There is no binding precedent requiring me to find that a person who might otherwise have a privacy interest in that material has any standing to challenge its admissibility, where the person who provided it to the police had lawful possession and control over it. I rely on the Court of Appeal decision in Orlandis-Habsburgo, in which Doherty J.A. held to the contrary, albeit in obiter. I also note that Poland J. of the Ontario Court of Justice reached a similar conclusion in R. v. Morgan, [11] which, although not binding on me and based on somewhat different facts, is nevertheless very persuasive in its reasoning.

[36] I do not agree with the submissions of defence counsel that the police failed to obtain valid consent to search the text messages on S’s phone. This is not a situation of third-party consent involving adults, as was the case in Reeves. This was the mother of a 13-year-old volunteering information contained on a phone she herself controlled and paid for. The defence relies on the 1993 British Columbia Youth Court decision of R. v. W. (J.P.) [12] as authority for the proposition that a parent cannot waive the privacy rights of a child. Obviously, I am not bound by that authority, and I note that it is quite dated. In any event, the circumstances in that case are so fundamentally different from the situation in this case that it does not assist the defence.

[37] In W.(J.P.), the police received information that the accused youth might have some stolen jewelry in his bedroom at the home where he lived with his parents. The police made no attempt to speak with the young accused. Instead, they went to his parents’ home and asked his father for permission to search his son’s room, which the father provided. The police did not tell the father that he had the right to refuse. This is quite different from the case before me. The parent in this case was not induced into cooperating in a police investigation at the behest of the police. Rather, she initiated the whole thing by calling the police and she turned over the information so they could use it in a criminal investigation. Furthermore, the issue in W.(J.P.) was whether the youth himself (who was the accused) had a privacy interest in his bedroom, even though his parents could enter it at any time. The issue in the case before me is not the privacy interest of S, but rather that of Mr. Amdurski. Further, and significantly, J.P.W. was 16 ½ years old; S was 13.

[38] Finally, unlike the situation in W.(J.P.), in this case S herself specifically consented to the police downloading the entire contents of both her cellphones. She did so in the presence of her mother, who was also consenting. At the same time, S refused to provide a statement to the police, which I take as a clear indication that she understood she was not compelled to do everything the police asked. She was aware that the police were pursuing a criminal investigation with a view to charging Mr. Amdurski. That is sufficient for her consent to be informed. She is not required to have detailed legal knowledge as to the constituent elements of the various offences with which he could be charged, and her mistaken belief that Mr. Amdurski had done nothing wrong because she told him she was 18 years old does not change that fact. I find that all the requirements for a valid informed consent are met, if such is required. [13] However, given that S was only 13, in my view her consent was not required in any event.

[39] If S’s mother had found an illegal firearm in her daughter’s backpack or closet, there would be no question about her right to turn it over to the police, regardless of who owned it and regardless of whether the owner of the weapon had extracted promises from the child to keep it hidden. I see no principled basis for holding that the incriminating evidence found on the child’s phone should be treated any differently. Further, upon being advised of such material on a cellphone or computer, the police, in my view, are duty-bound to look at it. First, they need to verify that the material is indeed as described. Second, there is a real concern that this particular child might not be the only victim. Sexual predators who troll on the internet for children rarely restrict their efforts to one victim. In these kinds of situations, police need to act, and they need to be able to act quickly. The protection of the most vulnerable victims imaginable requires it. This is not a situation in which a search warrant should be required.

[40] Likewise, consider the circumstances of a person who receives a death threat on her cellphone. Surely, that person is entitled to turn that information over to the police for her own protection and the police should not be required to obtain a search warrant before looking at it and acting upon it. In my view, it is nonsensical to suggest that the rights of the alleged perpetrator should prevent the police from acting on the threat without first obtaining a search warrant for the complainant’s phone.

[41] As the recipient or author of these text messages and the complainant with respect to these charges, it would always be open to S to testify at trial about the content of the communications between her and Mr. Amdurski. These are directly relevant and in some instances are the substance of the charges themselves. That being so, how can production of those very messages be the subject of any objection by the accused? The text messages are far better and more reliable evidence than the memory of a witness years later as to what was in them. It is antithetical to the search for truth, which is the underlying purpose of a trial, to permit oral evidence about what the communications contained, but to prevent the production of the text of the messages themselves. It was always open to S to divulge to others, including her mother and including the police, what happened to her and what Mr. Amdurski said and did. Surely then, she must be able to divulge not only what she remembers but copies of the messages themselves. Such disclosure by the victim of material in her own possession constituting evidence of the crimes against her cannot be said to be subject to the privacy interests of the accused in the text messages he sent. As stated by Bawden J. in R. v. Patterson:

… I find that [the accused] has no direct interest in the first category of communications, the text messages which he sent to the victim. Those messages constitute the actus reus of the offence of child luring. The constitutional rights which protect our privacy have never gone so far as to permit an accused to claim privacy in respect of his own criminal offences. [14]

[42] I reject the argument of the defence that any consent given by S to the police was only with respect to downloading material from her cellphone, whereas the material the Crown now seeks to tender in evidence is the photographs of the messages taken by S’s mother (the police having lost the downloads). The subject matter of this application is the text messages themselves. S consented to the police having absolutely everything on her cellphone, which included the text message exchanges with Mr. Amdurski. Therefore, her consent to the download included her consent to the police obtaining possession of the text messages.

[43] Accordingly, I find that the police were acting within their lawful authority when they looked at the messages on S’s phone, as provided to them by S’s mother. They did not need a search warrant to do so, nor did they need a search warrant to act on the information received. Even in the absence of the child’s consent, and even over the objections of the child, I would have reached that conclusion. However, in this case the child did consent, making it an even more conclusive determination. I therefore find that there was no infringement of any s. 8 Charter rights in respect to the text messages. This evidence was not seized by the state, but rather by a concerned parent who freely provided it to the police.

[44] That finding is sufficient to dispose of this application. However, in the event I have erred on the issue of there being no state action, I have considered in the alternative whether the police breached Mr. Amdurski’s rights under s. 8 of the Charter and, if so, whether the evidence should be excluded or admitted under s. 24(2) of the Charter.

E. IN THE ALTERNATIVE, THERE WAS NO SECTION 8 BREACH

The Test

[45] Under s. 8 of the Charter, “[e]veryone has the right to be secure against unreasonable search and seizure.” There are two stages to this inquiry. First, the claimant must establish that “a state act constituted a search or seizure because it invaded his or her reasonable expectation of privacy in the subject matter of the search”. Second, the search itself must be shown to be unreasonable. [15] Since a warrantless search is presumed to be unreasonable, the onus in such circumstances is on the Crown to establish the contrary.

First Stage: Standing to Assert s. 8 Violation

[46] At the first stage of the inquiry, in determining whether the applicant has standing to assert a Charter right, the court is required to consider the totality of the circumstances, with particular regard to four lines of inquiry:

(1) what was the subject matter of the alleged search; (2) did the applicant have a direct interest in the subject matter; (3) did the applicant have a subjective expectation of privacy in the subject matter; and (4) was this subjective expectation of privacy objectively reasonable. [16]

(1) Subject Matter of the Search

[47] As determined by the Supreme Court in Marakah and Jones, the subject matter of the alleged search in this case is the electronic conversation itself: i.e. the text messages between S and Mr. Amdurski.

(2) Direct Interest in the Subject Matter

[48] Mr. Amdurski was either the author or recipient of these text messages. As such, he has a direct interest in them. This is a factor that would support standing.

(3) Subjective Expectation of Privacy

[49] The onus is on Mr. Amdurski to establish that he had a subjective expectation that these messages would remain private. Mr. Amdurski did not file an affidavit asserting this expectation. In the absence of direct evidence that such an expectation existed, the question is whether it should be inferred. [17] The defence relies on the Supreme Court of Canada’s decision in Marakah and on the fact that S told the police that she had been instructed by Mr. Amdurski to delete his contact information and any messages between them from her phone.

[50] In Marakah, McLachlin C.J. (writing for the majority) emphasized that the Court’s conclusion was only that a text message conversation can, in some circumstances, attract an expectation of privacy, and not that it always will, referring specifically to the policy concerns raised by Moldaver J. in his dissent. [18] Although McLachlin C.J. found that in the circumstances of that case Mr. Marakah had demonstrated a reasonable expectation of privacy, she went on to say that each case would depend on its own particular facts as assessed by the trial judge and that “different facts may well lead to a different result”. [19]

[51] The facts in the case before me are different, and I have reached a different result. In Marakah, the text messages in question related to trafficking in firearms and were sent between Mr. Marakah and his alleged accomplice Mr. Winchester. It was the text messages that were on Mr. Winchester’s cellphone that were at issue. The Crown’s position was that Mr. Marakah had no subjective expectation of privacy with respect to the messages found on Mr. Winchester’s phone, even though they were either sent or received by him. The Supreme Court, relying on its earlier decisions in R. v. Patrick and R. v. Jones, held that “the requirement that the claimant establish a subjective expectation of privacy is not a high hurdle’”. [20] The Court then went on to note that there had never been a serious dispute about the subjective expectation of privacy and referred to the evidence that Mr. Marakah had asked Mr. Winchester numerous times to delete all messages from his cellphone. [21] The Court’s entire analysis of this issue is contained in two brief paragraphs, because there was no real dispute about it.

[52] In fairness to the accused, I accept that I should proceed on the basis that Mr. Amdurski instructed S to delete his contacts and messages from his phone, just as Mr. Marakah had instructed Mr. Winchester to do. In her factum, the Crown takes issue with the defence contention that such instructions were given. There is no evidence of such an instruction in the text messages themselves, nor did S make any mention of it in her formal statement to the police. However, in an Information to Obtain (“ITO”) various warrants and production orders, Det. Pischedda stated, “As the working relationship between [S] and [Mr. Amdurski] progressed, [S] was instructed by [Mr. Amdurski] to delete his contact from her phones and any messages that were sent back and forth.” It is not apparent to me on the current record where Det. Pischedda got that information, but in my view, the defence is entitled to rely upon it as true. As in Marakah, this is one piece of evidence that could support an inference that Mr. Amdurski had a subjective expectation of privacy.

[53] There are, however, two significant differences between the circumstances in Marakah and the case before me. First, the communications in Marakah were between two individuals engaged together in criminal activity. There would be every reason for Mr. Marakah to expect that Mr. Winchester would not leave such incriminating evidence on his cellphone nor voluntarily divulge it, as to do so would not only incriminate Mr. Marakah but Mr. Winchester himself. The same reasoning does not apply to S, who was not engaged in criminal conduct, but rather was the alleged victim of it. I do recognize, however, that Mr. Amdurski might have expected that S would be motivated to keep such material hidden from her parents.

[54] The second and most important distinction between the two cases is that S was a 13-year-old child at the time and lived at home with her mother. The defence relies on S’s statement to the police that she told Mr. Amdurski that she was 18. However, S told the police that she gave different ages to Mr. Amdurski, including 17, 18, and 19 — which also should have been a red flag to Mr. Amdurski that S was misrepresenting her age and may in fact be younger than she held herself out to be. Further, I have seen the images of S from the hallway of a hotel on her way to one of the assignations arranged by Mr. Amdurski. She barely looked 13; she most definitely did not look 18. I am not satisfied on this evidence that Mr. Amdurski could have believed that S was an adult. It is one thing to have a subjective expectation that an adult with whom you are engaged in criminal activity will delete evidence of your conversations (as in Marakah). It is another thing altogether to believe that a child will do so, particularly a child in circumstances such as these.

[55] On balance, I find that Mr. Amdurski has not met the admittedly low hurdle of establishing a subjective expectation that his text messages with this child complainant would remain private. Having said that, I readily concede that this is a close call, particularly in light of the statement by Det. Pischedda in the ITO and the content of the messages themselves, which Mr. Amdurski would clearly be motivated to keep secret.

(4) Any Expectation of Privacy Was Not Reasonable

[56] Even if Mr. Amdurski could be said to have a subjective expectation of privacy in his text exchanges with S, that expectation was not reasonable in all of the circumstances.

[57] In Marakah, the Supreme Court of Canada endorsed the continued relevance of various factors identified in its earlier jurisprudence in determining whether an applicant’s expectation of privacy in text messages is reasonable in all the circumstances, citing R. v. Cole, R. v. Tessling, and R. v. Edwards. [22] For the purposes of the case before it, the majority in Marakah found the most relevant factors to be: “ (1) the place where the search occurred; (2) the private nature of the subject matter, i.e., whether the informational content of the electronic conversation revealed details of the claimant’s lifestyle or information of a biographic nature; and (3) control over the subject matter.” That does not mean those will necessarily be the most relevant factors in every case involving text messages. Much will depend on the particular circumstances of the case.

[58] In terms of the case before me, the three factors analyzed in Marakah are clearly relevant. However, to that list, I would add: (4) whether the subject matter was in plain view and whether the subject matter was already in the hands of third parties (as identified in Tessling); and (5) ownership of the property or place and the ability to regulate access, including the right to admit or exclude others from the place (as identified in Edwards).

[59] The Supreme Court in Marakah emphasized that the result in that case turned on its own particular facts. It did not purport to lay down the law for how text messages would be treated in every situation that might arise. Before turning to an analysis of the factors relevant to whether the expectation of privacy is reasonable, it is useful to compare the circumstances in Marakah to the case before me. Although this case, as in Marakah, involves text messages sent and received by an accused but found on somebody else’s phone, the similarities between the two cases end there. In my view, it is the differences between the two cases that are most influential, not the superficial ways in which they are similar.

[60] Mr. Marakah’s text messages were found on the phone of Mr. Winchester, a criminal associate of Mr. Marakah in the illegal trafficking of firearms. Mr. Winchester did not offer the phone to the police, nor consent to its seizure; it was unlawfully seized from him by the police and searched shortly after his own arrest. The police had also unlawfully seized and searched Mr. Marakah’s phone. Mr. Marakah clearly had standing to assert a privacy interest in the contents of his own phone, he did assert that interest, and those text messages were found to be inadmissible against him at trial. However, the prosecution had argued that Mr. Marakah had no standing to assert a privacy interest in those same text messages seized from his accomplice’s phone. That was the issue before the Supreme Court of Canada. In the case before me, the text messages were on a phone used by a child, not by a criminal accomplice. Far from being a criminal accomplice, the child was a vulnerable victim who is the complainant in the charges against the accused. Further, the child and her use of the phone were subject to parental control and supervision. Neither the child nor her mother asserted any privacy interest themselves in the text messages. On the contrary, they wanted the police to have them. The surrounding circumstances are therefore markedly different.

[61] The first relevant factor to examine is the place where the search was conducted. As was noted in Marakah, the place in which text messages are found is not always clearcut. This can be more difficult to pin down than a physical space in which a tangible object is found. Sometimes electronic messages may be retrieved from the cellphone of either the sender or recipient; sometimes they may exist on somebody else’s cellphone; sometimes they may exist only on a remote server; sometimes they may be screenshots from a chatroom for which no record of messages is usually maintained; and sometimes they may be retrieved from a service provider’s database. However, in this case, the text messages were found on the cellphone of the complainant.

[62] In determining the nature of the place where the information was found, it is also relevant to consider the surrounding circumstances. The complainant was a child under the control of her mother. Her mother had access to her cellphone and knew her password. The phone was left in plain sight in the child’s room. Indeed, the child’s mother had already accessed and copied the messages before the police were even involved. Although digital content such as this is somewhat different from more concrete evidence, the fact that a third party had ready access to the place where the evidence was found and had already viewed the evidence and asserted control over it was recognized as a relevant factor in Tessling.

[63] The second relevant factor identified in Marakah is the potential of the information to be private and to reveal personal information. The Court in Marakah stated:

The purpose of s. 8 is “to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state”: R. v. Plant, [1993] 3 S.C.R. 281, at p. 293. It follows that the potential for revealing private information is a factor to consider in determining whether an electronic conversation attracts a reasonable expectation of privacy and is protected by s. 8 of the Charter. [23]

[64] In this context, it is important to recognize that the contents of a cellphone, like a personal computer, can be highly personal in nature. However, that concept applies more directly to the owner of the cellphone than it does to the myriad of people whose text messages may be contained upon it. Searching S’s cellphone would be extremely intrusive into her personal privacy, but vastly less intrusive into the privacy of other individuals with whom she communicated on that device, including Mr. Amdurski. There was nothing particularly intrusive about these messages with respect to Mr. Amdurski’s privacy, other than disclosing that he was engaged in ferrying S to various locations where he sold her sexual services to others. One can readily see that he would want to keep such activity secret, and the nature of the communications could provide some support for a conclusion that he may have expected they would be kept secret. However, there is, in my opinion, a spectrum or hierarchy of private information, just as the Court in Marakah and Tessling accepted existed with respect to the place in which the search is conducted. [24]

[65] In this situation, I see the invasion of Mr. Amdurski’s privacy interest as being at the lower end of the spectrum, notwithstanding that it may be incriminating.

[66] The third factor identified in Marakah is the element of control. The Court noted, and I accept, that control is just one factor to consider and may not be determinative. However, the absence of any control by Mr. Amdurski over the data stored on S’s phone is nevertheless important. In this context, it must be noted that S was 13 years old, not a criminal accomplice. S did not even have exclusive control over the phone herself. Her mother could access it, her mother had her password, and her mother did access it. At any point S might have confided in a teacher, counsellor, or friend about what was happening and showed that person what was on her phone. The mere fact that Mr. Amdurski may have told her to delete things does not make it reasonable for him to expect that she would have. The point is that Mr. Amdurski had zero control over the situation and could only have had a hope, not a reasonable expectation, that these messages would never be divulged.

[67] A little over a year after Marakah, the Supreme Court of Canada released its decision in R. v. Mills, dealing with an adult accused’s electronic communications with a person he believed to be a child. In my view, Mills has far more in common with the case before me than Marakah does. In Mills, a member of the Newfoundland Constabulary posed online as a 14-year-old girl named Leann with the intent of catching child lurers. Mr. Mills (who at the time was 32) had a series of interactions with “Leann” by email and Facebook, claiming that he was 23. The police officer used screen capture software to keep a record of their interactions. Mr. Mills exchanged various sexually explicit conversations with “Leann”, including sending her a photograph of what he said was his penis, and then arranged to meet her in a local park. He was met at the park by other members of the Newfoundland Constabulary, arrested, and charged with child luring. He claimed a privacy interest in the messages he sent to “Leann” and challenged their admission into evidence as a violation of his Charter rights. The trial judge ruled that prior judicial authorization was required before such communications could be intercepted and that this constituted a breach of the Charter, but he nevertheless admitted the evidence pursuant to s. 24(2) of the Charter, and convicted Mr. Mills. The Newfoundland and Labrador Court of Appeal upheld the conviction, held that prior judicial authorization was not required to record the communications, and also held that Mills did not have a reasonable expectation of privacy in these circumstances. The Supreme Court of Canada dismissed the appeal, but for slightly different reasons. In the result, however, all three members of the Court of Appeal and six of the seven Supreme Court of Canada judges held that the accused did not have a reasonable expectation of privacy in the electronic conversation Mr. Mills had had with the undercover officer.

In Mills, the Supreme Court of Canada majority decision was authored by Brown J. (concurred in by Abella and Gascon JJ., both of whom had also concurred with the majority decision in Marakah). Brown J. held that the subject matter of the search was the electronic communication that took place over email and Facebook chat and that there was no legally significant distinction between those forms of communication and the text messages at issue in Marakah. Brown J. further held that Mr. Mills had a direct interest in the subject matter, and also that he had a subjective expectation of privacy, the latter in light of his multiple instructions to “Leann” to delete all communications and keep their relationship secret. However, he then went on to find that Mr. Mills’ subjective expectation of privacy was not objectively reasonable. In reaching that conclusion, Brown J. held that determining whether there is a reasonable expectation of privacy is “not purely a descriptive question, but rather a normative question about when Canadians ought to expect privacy, given the applicable considerations.” [25] Brown J. emphasized that Mr. Mills was communicating with someone who believed to be a child and who was a stranger to him. He cited with favour the statements of Neilson J. of the Alberta Court of Queen’s Bench in R. v. Graff, as follows:

In sum, the Applicant sent highly personal information over the internet to a complete stranger, in the absence of any invitation to send such information, and without taking any reasonable steps to ascertain the identity of the recipient, to ensure his own anonymity, or to ensure any confidentiality with respect to the information he sent.

I conclude in all of the circumstances that while the Applicant gambled or hoped that the chat and other material and information he sent would remain private, he had no basis upon which to form a[n]... objectively reasonable expectation of privacy in the circumstances. [26]

[68] Brown J. went on to recognize the vulnerability of children to sexual crimes, particularly crimes involving the internet, and that “enhancing protection to children from becoming victims of sexual offences is vital in a free and democratic society”. He then held:

This leads me to conclude that, on the normative standard of expectations of privacy described by this Court (Tessling, at para. 42), adults cannot reasonably expect privacy online with children they do not know. That the communication occurs online does not add a layer of privacy, but rather a layer of unpredictability. [27]

[69] Brown J. noted that although his finding on the unreasonableness of Mills’ expectation of privacy was determinative, he also found that no prior judicial authorization was required for the police to mount the sort of “sting” operation involved in this case. Since that issue does not arise in the case before me, I will not expand upon it.

[70] Karakatsanis J. (who joined in the majority decision in Marakah) wrote separate concurring reasons in Mills (with Wagner C.J. concurring). Karakatsanis J. agreed with the decision of Brown J. in the result, but reached that decision by a different route. Nevertheless, that route also recognized that Mr. Mills could have no reasonable expectation of privacy in this situation.

[71] At the outset of her reasons, Karakatsanis summarized her conclusions as follows:

. . . In my view, when undercover police officers communicate in writing with individuals, there is no “search or seizure” within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms. This is because it is not reasonable to expect that your messages will be kept private from the intended recipient (even if the intended recipient is an undercover officer). Further, the police conduct does not amount to a search or seizure — the police did not take anything from the accused or intrude on a private conversation; the undercover officers simply received messages sent directly to them.

Here, the police did not interfere with a private conversation between other individuals; they directly participated in it. Because the conversation occurred via email and Facebook messenger, it necessarily took place in a written form. The screenshots from the computer program “Snagit” are simply a copy of the pre-existing written record and not a separate surreptitious permanent record created by the state. Thus, the police did not violate s. 8 when they communicated with Mr. Mills and retained screenshots of those conversations. ... [28]

[72] In essence, Karakatsanis J. found that s. 8 of the Charter was not engaged at all in this situation, equating it to a police undercover operation and noting there should be no difference between a situation where these words were spoken to the undercover officer, as opposed to written down and sent to the officer electronically. She held that the accused could not have any reasonable expectation that his words would be kept private from the intended recipient, even where that recipient was a police officer acting undercover. She stated:

Thus, s. 8 of the Charter is not engaged merely because an undercover officer converses electronically with an individual. This is because (1) it is not reasonable for the sender to expect that the messages will be kept private from the intended recipient (even if the recipient is an undercover officer); and (2) the police conduct of communicating with an individual does not amount to a search or seizure. Either way, the outcome is the same — s. 8 is not violated when police simply communicate with an individual. [29]

[73] Karakatsanis J. also found that the police officer’s use of a screen capture program to create a written record of all communications did not amount to a search or seizure. She held:

The question remains then as to whether the use of “Snagit” otherwise amounts to a search or seizure, requiring some form of judicial authorization. Of course, even if the Crown were not permitted to tender the printed screenshots as evidence, the Crown could still call the officer to testify about what the accused said and the written record could be used to refresh the officer’s memory: Duarte, at pp. 58 and 60; Fliss, at paras. 7, 12, and 43-45. However, permanently preserving the accused’s own words, in a complete and accurate format, gives the state compelling evidence against the accused. Does the state’s use of screenshot technology intrude upon the accused’s reasonable expectation of privacy such that it constitutes a search or seizure?

In my opinion, it does not. As discussed above, the permanent record of the conversation resulted from the medium through which Mr. Mills chose to communicate. He cannot reasonably expect that the recipient would not have a written record of his words. [30]

[74] Moldaver J. concurred in the result, giving very brief reasons stating that the reasons of Karakatsanis J. and Brown J. were both sound in law and each formed a proper basis for dismissing the appeal. Martin J. dissented.

[75] What is clear from the concurring reasons of Karakatsanis is that there is no reasonable expectation of privacy with respect to electronic messages sent to a recipient where that recipient, against the instructions of the accused who sent the messages, decides to keep a copy of the messages and then tender them as evidence at trial. There is a very close parallel between that situation (where the recipient is a police officer) and the scenario before me (where the recipient of the messages turned them over to a police officer).

[76] The majority decision, authored by Brown J., also supports the proposition that an adult sending such electronic messages to a child who is a stranger to him can have no reasonable expectation of privacy. Thus, six of the seven judges in Mills found that the accused had no reasonable expectation of privacy. It is worth noting that three of them (Abella, Gascon, and Karakatsanis JJ.) concluded that Mr. Marakah did have a reasonable expectation of privacy, in the circumstances of that earlier case.

[77] There are differences between the facts in Mills and the case before me. The most obvious difference is that in Mills the accused clearly believed he was communicating with a 14-year-old. The defence argues that this fact distinguishes Mills from Mr. Amdurski’s situation and that I should not follow it. I disagree. Mr. Amdurski has filed no evidence as to how old he thought S was. At various points in time, S told Mr. Amdurski that she was 17, 18, and 19. Mr. Amdurski never asked her for proof of her age, even though she had given him different ages. Further, Mr. Amdurski had seen S in person prior to the text messages at issue here. Based on the images of S taken from the hotel surveillance cameras, I find that she clearly did not look even 16 or 17. She looked her actual age of 13, if not younger. On the evidence before me, and for purposes of this application, I find that Mr. Amdurski believed that S was a child who was under the age of consent.

[78] Another difference between Mills and the facts in this case is the emphasis by the majority in Mills on the fact that the person receiving the messages was a “stranger” to the accused. In my view, however, that distinction makes no difference here. Mr. Amdurski started his electronic communications with S through an app called Whisper when she was a complete stranger to him, as was the case in Mills. Mr. Amdurski subsequently arranged to meet up with S at a hotel, where he had sex with her, and thereafter he arranged a number of “dates” for her, where she provided sexual services to various men for money. I do not consider the face-to-face encounters Mr. Amdurski had with S over the course of two or three weeks to change the nature of their relationship, nor are they sufficient to remove her from the category of vulnerable persons contemplated by the majority in Mills as being deserving of protection.

[79] In my view, the most significant and determinative difference between Mills and Marakah is the nature of the recipient of the text messages. Mr. Marakah knew and trusted Mr. Winchester and they were engaged together in a criminal enterprise. The police officer posing as the 14-year-old girl was not known to Mr. Mills in the same sense, nor was S known to Mr. Amdurski. The context of these relationships, and the policy concerns involved, are an important factor in determining whether there can be a reasonable expectation of privacy in these communications.

[80] Accordingly, whether based on the longstanding principles established in cases like Edwards and applied in Marakah, or on the direct parallels between this case and Mills, I find that Mr. Amdurski had no reasonable expectation of privacy in the text messages he sent to S. He therefore has no standing to challenge their admission into evidence under s. 8 of the Charter.

Second Stage: The Search Was Reasonable

[81] In the event I have erred on the issue of standing, I will proceed to the second stage of the analysis, whether the search or seizure was itself unreasonable. I find it was not, because it was done not only with the consent of the child’s parent, but at her behest, and also with the consent of the child (assuming she had legal capacity to consent). I will not repeat here my analysis as to consent in the earlier section of these reasons dealing with whether s. 8 of the Charter was invoked at all (see paras. 20-44 above). The same principles apply.

[82] Accordingly, even if I had found Mr. Amdurski had standing, I would have dismissed this application.

F. SECTION 24(2) ANALYSIS

[83] Finally, and again in the alternative, even if the police breached Mr. Amdurski’s Charter rights by accessing material from S’s phone without a warrant, I would still admit the evidence under s. 24(2) of the Charter.

[84] In R. v. Grant, the Supreme Court of Canada redefined the test for whether evidence should be admitted or excluded under s. 24(2) of the Charter. The judge’s task is to “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; (2) the impact on the Charter-protected rights of the accused; and (3) society’s interest in the adjudication of the case on its merits. [31]

[85] I find that all of the Grant factors point towards admitting the evidence in this case.

[86] Any Charter-infringing state conduct in this case was at the very minor end of the spectrum. The police did not initiate obtaining this evidence. It was turned over to them by a concerned parent. This is an area of the law that is extremely unsettled. The police acted in good faith, believing that, having the consent of both the mother and the complainant, they did not need to obtain a search warrant. At least in the first instance when S’s mother turned over the messages, when S had gone missing, the police reviewing the messages photographed by S's mother might also have been justified by exigent circumstances. Although S had returned home by that point, she was by no means completely out of danger, and the text messages might well have revealed other children in peril. Even if, out of an abundance of caution, it may have been advisable for the police to obtain a warrant after that first look, if they had sought a warrant, it is crystal clear that it would have been granted. [32] Accordingly, this factor supports admitting the evidence.

[87] I also find that the impact on the Charter-protected rights of the accused is minimal. This is not a situation in which Mr. Amdurski’s own cellphone was seized and searched without his permission. Only his text communications with S were viewed. The fact that the text messages may be incriminating is not the same thing as there being a serious violation of his privacy rights. If these same messages had been written in a book and passed back and forth between S and Mr. Amdurski, and S gave the book to the police, there could be no suggestion that Mr. Amdurski’s privacy rights had been violated. There is very little difference between that situation and the impact on the accused of turning over messages stored digitally. Again, this factor does not support excluding the evidence.

[88] The charges in this case relate to the sexual assault of a child and procuring that child to engage repeatedly in providing sexual services to adult men for money. In many of these situations, the child was also given alcohol and illicit drugs. These are heinous charges involving a vulnerable child. Society obviously has a very strong interest in having such charges resolved on their merits. This factor also supports admitting the evidence.

[89] The evidence is reliable. Even without the actual text messages, S could testify as to things Mr. Amdurski said to her in person and through electronic communications. Admitting the evidence serves to ensure the accuracy of the evidence at trial, thus enhancing the public’s confidence in the administration of justice. There is nothing about the admission of this evidence that would bring the administration of justice into disrepute. Indeed, to the contrary, excluding such evidence given all of the circumstances I have outlined above would, in my opinion, undermine public confidence in the administration of justice.

[90] Thus, even if there was a search and seizure in this case giving rise to rights under s. 8 of the Charter, and even if there was a violation of Mr. Amdurski’s rights in that regard, I would nevertheless hold that the evidence is admissible at trial.

Molloy J.

Released: April 28, 2022

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – TAL AMDURSKI and THOMAS GRAFF Defendants/Applicants

REASONS FOR JUDGMENT Molloy J.

Released: April 28, 2022

[1] Mr. Graff is a co-accused on some counts, but did not participate in the within application. Although the information obtained from the hotel and car rental agency was initially part of this application to exclude evidence, that aspect of the application was withdrawn at the time of oral argument.

[2] The failure of the police to preserve the downloads from the cellphones is not the subject of the applications before me, but may be raised later in an application before the trial judge.

[3] R. v. Dyment, [1988] 2 S.C.R. 417, at para. 26.

[4] R. v. Orlandis-Habsburgo, 2017 ONCA 649, at para. 34.

[5] R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 50.

[6] R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 46.

[7] R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320.

[8] Marakah, at paras. 174-176.

[9] Ibid, at paras. 184-186.

[10] R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 2.

[11] R. v. Morgan, [2020] O.J. No. 2330 (C.J.), particularly at paras. 17-34, 48-53, 104.

[12] R. v. W. (J.P.), [1993] B.C.J. 2891 (Y.C.).

[13] R. v. Wills (1992), 7 O.R. (3d) 337 (C.A.); R. v. Yu, 2019 ONCA 942, at para. 97.

[14] R. v. Patterson, 2018 ONSC 4467, at para. 13.

[15] R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 11.

[16] Jones, at para. 13; Marakah, at para. 11.

[17] Jones, at paras. 16-22.

[18] Marakah, at para. 5.

[19] Ibid, at paras. 5, 55.

[20] Ibid, at para. 22.

[21] Ibid, at para. 23.

[22] Ibid, at para. 24, citing R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 32; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 45; R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45.

[23] Marakah, at para. 31.

[24] Ibid, at para. 29; Tessling, at para. 22.

[25] Mills, at para. 20.

[26] Ibid, at para. 22, citing R. v. Graff, 2015 ABQB 415, at paras. 63, 65.

[27] Mills, at para. 23.

[28] Ibid, at paras. 36-37.

[29] Ibid, at para. 51.

[30] Ibid, at paras. 54-55.

[31] R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.

[32] See Cole, at para. 93.