Her Majesty the Queen v. Mahmood et al., 2011 ONCA 693

Her Majesty the Queen v. Mahmood et al. [Indexed as R. v. Mahmood]

107 O.R. (3d) 641

2011 ONCA 693

Court of Appeal for Ontario

Blair, Watt and Epstein JJ.A.

November 9, 2011

Charter of Rights -- Search and seizure -- Police obtaining s. 487 warrant for cell phone account information for all customers who accessed cell phone towers located near jewellery store around time of robbery ("tower dump warrant") in absence of evidence cell phones used before, during or after robbery -- Information to obtain citing police experience that robbers often using cellular phones -- Information to obtain tower dump warrant not setting out reasonable and probable grounds -- Seizures under tower dump warrant violating s. 8 of Charter -- Trial judge properly excluding evidence obtained from tower dump warrant -- Criminal Code, R.S.C. 1985, c. C-46, s. 487 -- Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

Charter of Rights -- Search and seizure -- Telephone subscriber information -- Police using information obtained via tower dump warrant, issued without reasonable grounds in violation of s. 8 of Charter, along with other information learned using other police techniques to obtain s. 487 warrants for telephone subscriber records for certain individuals -- Trial judge correctly finding subscribers have reasonable expectation of privacy in records and that insufficient evidence to support issuance of s. 487 warrant for subscriber records after excised information learned through tower dump -- Expectation of privacy in commercial records in regulated field significantly reduced -- Police could have obtained same telephone records order under s. 492.2(2) of Criminal Code as preconditions being met to issue number recording order under s. 492.2(1) -- Section 492.2(1) requiring only reasonable suspicion that would obtain information relevant to investigation if order granted -- Trial judge not erring in declining to exclude records seized under subscriber warrants under s. 24(2) of Charter despite failure to consider that reliance on tower dump records obtained in breach of Charter being factor to be considered in s. 24(2) analysis -- Canadian Charter of Rights and Freedoms, ss. 8, 24(2) -- Criminal Code, R.S.C. 1985, c. C-46, s. 492.2(2).

Charter of Rights -- Search and seizure -- Residential search warrants -- Police using information obtained via tower dump warrant that violated s. 8 of Charter as part of basis for warrant of subscriber information -- Warrant for subscriber information also failing to meet s. 487 requirements once information learned from tower dump warrant excised -- Judge properly finding that police could have obtained subscriber telephone records using s. 492.2(2) and that subscriber records properly admitted under s. 24(2) of Charter -- Judge correctly finding that once excised fruits of tower dump and subscriber information s. 487 warrants remaining information not supporting issuance of residential warrants and search violating s. 8 of Charter -- Judge correctly holding that sufficient basis for warrants for residences as subscriber information could have been obtained under s. 492.2(2) and police having obtained additional information in support of residential warrants through other lawful means -- Societal interest in charges resolved on [page642] merits, evidence obtained in residences reliable and real evidence -- Evidence from residential searches properly admitted under s. 24(2) of Charter -- Canadian Charter of Rights and Freedoms, ss. 8, 24(2) -- Criminal Code, R.S.C. 1985, c. C-46, ss. 487, 492.2(2).

Criminal law -- Search and seizure -- Telephone records -- Issuance of telephone records order under s. 492.2(2) of Code permissible when preconditions under s. 492.2(1) met regardless of whether number recorder order actually issued under s. 492.2(1) -- Criminal Code, s. 492.2(1), (2).

The accused were charged with offences arising out a jewellery store robbery. Although the police had no evidence that these robbers used cell phones before, during or after the robbery, operating on police experience that robbers commonly use cell phones as a means of communication during a robbery, the police obtained a s. 487 warrant (the "tower dump warrant") for the cell phone account information of all customers who accessed specific cell phone towers near the jewellery store around the time of the robbery. They then used information obtained through the tower dump warrant along with other evidence developed through surveillance and other police means to obtain s. 487 warrants for the subscriber records of certain individuals who appeared to be associated with a person believed to be involved in the robbery. Using the information from the first two warrants, along with other information learned from other aspects of the investigation, they obtained search warrants for the appellants' residences, where they discovered some of the stolen goods. The appellants brought an application to exclude the evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms.

The trial judge found that the information to obtain the tower dump warrant did not set out reasonable and probable grounds as required by s. 487 of the Criminal Code, and that the seizures under that warrant violated the appellants' rights under s. 8 of the Charter. The seized records were excluded under s. 24(2). After excising all references to the excluded records from the information to obtain the subscriber warrants, issued under s. 487 of the Criminal Code, the trial judge found that what remained could not support the issuance of those warrants. However, he found that the police could have obtained a telephone records order under s. 492.2(2) of the Criminal Code based on "reasonable grounds to suspect" that an offence under the Criminal Code had been committed and that information that would assist in the investigation of the offence could be obtained through the use of a number recorder. He concluded that s. 492.2(2) could have been used because the requirements in s. 492.2(1) for the issuance of a number record order were met, even though no s. 492.2(1) order had not been sought or granted. The trial judge admitted the records obtained under the subscriber warrants pursuant to s. 24(2) of the Charter. Finally, the trial judge determined that, after excising all material relating to the issuance and execution of the tower dump warrant and subscriber warrants from the information to obtain the residential warrants, those warrants could not have issued. However, he admitted the evidence seized under the residential warrants as the subscriber records could have been obtained using s. 492.2(2). The appellants were convicted. They appealed.

Held, the appeal should be dismissed.

The trial judge correctly held that there is a reasonable expectation of privacy in cellular telephone records and that the appellants had a significantly reduced expectation of privacy in these commercial records that revealed few, if any, intimate details of the lifestyle and personal choices of subscribers. As there was no evidence that cellular phones were used before, during or after the robbery by the robbers, the tower dump warrant was issued under s. 487 without reasonable [page643] grounds and in violation of s. 8 of the Charter. The judge correctly excluded the tower dump records.

The judge excised the information obtained from the tower dump warrant from the information to obtain the s. 487 warrant for the telephone records of one of the accused and two other people the police believed might have been associated with him near the time of the robbery and determined that other evidence outlined in the warrant to obtain, learned through surveillance and other police investigative means, failed to met the reasonable grounds requirement in s. 487. He concluded that the search for telephone records violated s. 8 of the Charter. The trial judge did not err in finding that a telephone records order under s. 492.2(2) of the Code would have entitled investigators to the records obtained through the subscriber warrants, thus attenuating the seriousness of the s. 8 Charter violation. The issuance of a telephone records order under s. 492.2(2) is not dependent on an actual issuance of a number recorder warrant under s. 492.2(1) of the Code. Rather, it is available where the preconditions to the issuance of a number recorder warrant under s. 492.2(1) are met. The trial judge should have included the prior unconstitutional conduct in obtaining the tower dump warrant records in the s. 24(2) analysis with respect to the subscriber warrant records. That prior violation exacerbated the Subscriber Warrants violation. However, the availability of a telephone records order under s. 492.2(2), coupled with the trial judge's finding that the police acted in good faith, diminished the seriousness of the combined violations. The evidence in question was reliable, real and relevant to proof of guilt. The trial judge did not err in declining to exclude the subscriber warrants evidence under s. 24(2) of the Charter.

After excision of unconstitutionally obtained information, what remained in the information to obtain the residential warrants could not support their issuance. The residential searches violated the appellants' rights under s. 8 of the Charter. The trial judge did not err in admitting the evidence seized in the residences. The police did not ignore the warrant requirements; they appreciated the need for a warrant and obtained one. Had they sought a s. 492.2(2) order for telephone subscriber records, they could have gotten the same information that they obtained using the s. 487 warrant and the evidence thus obtained would have supported the issuance of the residential warrants. The impact on the appellants' Charter- protected rights was significant, but nothing was done that offended their dignity or intruded upon their bodily integrity. The evidence was real, reliable and relevant and it provided confirmation of the evidence of the accomplice who testified for the Crown. Its admission did not bring the administration of justice into disrepute.

APPEAL by the accused from the conviction entered by M.G. Quigley J. of the Superior Court of Justice, sitting with a jury, on August 6, 2009.

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(3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006, 76 A.C.W.S. (3d) 894; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425, [1990] S.C.J. No. 23, 67 D.L.R. (4th) 161, 106 N.R. 161, J.E. 90-575, 39 O.A.C. 161, 54 C.C.C. (3d) 417, 29 C.P.R. (3d) 97, 76 C.R. (3d) 129, 47 C.R.R. 1, 10 W.C.B. (2d) 7; York Condominium Corp. No. 382 v. Jay-M Holdings Ltd. (2007), 84 O.R. (3d) 414, [2007] O.J. No. 240, 2007 ONCA 49, 220 O.A.C. 311, 59 C.L.R. (3d) 15, 36 C.P.C. (6th) 233, 30 M.P.L.R. (4th) 161, 154 A.C.W.S. (3d) 1205 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 8, 24(2) Criminal Code, R.S.C. 1985, c. C-46, ss. 109 [as am.], 110 [as am.], 161(1) [as am.], 487 [as am.], (1) [as am.], (b), 487.02, 487.03(1) [as am.], 487.04 [as am.], 487.051(1) [as am.], (2) [as am.], 492.2(1) [as am.], (2), (3), (4) Interpretation Act, R.S.C. 1985, c. I-21 [as am.], s. 12

Catriona Verner, for appellant Arif Mahmood. Mark Halfyard, for appellant Rehan Sheikh. Paula Locke, for appellant Abraham Fundi. Michael Bernstein, for respondent Crown.

The judgment of the court was delivered by

[1] WATT J.A.: -- Cell phone use is ubiquitous. Users and their phones become one, inseparable. Users talk to other users. Any time. Anywhere. Conversations -- some brief, others lengthy -- end. But something of them remains.

[2] Cell phone companies keep records. Of calls made and received. Of time and length. Of subscribers whose phone was used to make or receive a call. And those records, essential for billing purposes, can help to find out where the caller made or the recipient got the call.

[3] Sometimes, records kept by cell phone companies help police investigate crimes. Here, police investigating the violent robbery of a Brampton jewellery store thought that cell phone [page646] traffic near the store, around the time of the robbery, might help them track down the robbers. So they got a search warrant for cell phone records about contemporaneous calls near the jewellery store. Then, they got another search warrant for the cell phone records of a few people they thought could be involved in the robbery. Finally, they got warrants to search some residences where they found things linked to the robbery.

[4] A jury convicted Arif Mahmood, Abraham Fundi and Rehan Sheikh of several offences arising out of the jewellery store robbery. Among other things, those convicted say that the trial judge should have excluded evidence of their cell phone records and of the things found on the search of their homes. I disagree. In the reasons that follow, I explain why I conclude that these appeals should fail.

The Background Facts

[5] The grounds of appeal advanced make it needless to dwell on the circumstances of the robbery. Some brief canvass is enough as a prequel to the more detailed recitation of the investigative steps taken to secure and execute the various warrants that yield the evidence said to have been wrongly admitted.

The robbery

[6] Abdul Rasheed Khalid owns Zaibi Jewellers. The store, located in a small plaza in Brampton, is equipped with a security system that includes surveillance cameras. Customers may enter the store only after the front door has been unlocked electronically from within the store.

[7] Jewellery is not left in display cases overnight, rather it is placed in two safes near the back of the store. Each morning, Mr. Khalid removes the jewellery from the safes and puts it in the display cases before the store opens for business.

[8] At about the time he opened the store for business on November 17, 2006, Mr. Khalid saw two people, a man and another person he mistook as a woman wearing a burka, at the front door. Mr. Khalid opened the door to permit the couple to enter.

[9] Once inside, both produced handguns. The male pulled a ski mask over his face. The couple, who were both men, forced Mr. Khalid at gunpoint into an office area at the back of the store, removed his glasses, bound his hands and covered his eyes with duct tape. One of the intruders guarded Mr. Khalid while the other admitted a third person to the store.

[10] During the looting that followed, one of the robbers threatened then struck Mr. Khalid when the blindfold slipped and the jeweler peered out from under it. The robbers removed the [page647] surveillance cameras, gathered up their loot and left the store with about $500,000 worth of jewellery and $35,000 in cash.

[11] When police arrived, they located a plastic bag marked "Amira Islamic Fashions" on the floor of the store.

[12] Mr. Khalid gave no evidence about seeing a cell phone in the robbers' possession or hearing any apparent cell phone call during the robbery.

The early investigation

[13] Despite their quick response to the robbery complaint, police made little headway as their investigation began. They had a general description of two of the robbers, but no surveillance photos. For most of the events in the store, Abdul Khalid had been blindfolded.

[14] Within about ten days of the robbery, police learned about a burka purchased by three men from Amira Islamic Fashions about three weeks before the robbery. The store owner identified the appellant, Fundi, as one of the persons involved in the purchase. Fundi was not involved in a later exchange of the original burka for another. No fingerprints or other identifying substances could be detected on the Amira Islamic Fashions bag that police found on the floor of the jewellery store following the robbery.

The tower dump warrant of November 30, 2006

[15] On November 30, 2006, Robert Hackenbrook, a police constable assigned to the Central Robbery Bureau of Peel Regional Police Service, swore an information to obtain (the "ITO") a warrant to search the records of four cellular telephone companies. The warrant sought cellular telephone account information for all customers who accessed specific cellular telephone towers located near Zaibi Jewellers between 10:20 a.m. and 11:50 a.m. on November 17, 2006, the day the store was robbed. The information sought under the conventional search warrant was to include, for each subscriber, their

. . . name, home and business address and date of birth, date and time of call, and all telephone numbers dialed or received by the account holder.

[16] The ITO contained no mention of any of the robbers having or using a cell phone on entry to the store, during the robbery, or in making their escape. The only reference to cellular telephone use was the bare assertion by Constable Hackenbrook that, based on his experience, those involved in robberies commonly used cell phones as a means of communication. No suspects were identified.

[17] The ITO included a reference to "Project Impact", an investigation into two other jewellery store robberies that had [page648] occurred one and 14 months prior to the Zaibi robbery. Both of the earlier robberies involved the use of disguises, but nothing in the ITO linked them to the robbery under investigation.

[18] Execution of the tower dump warrants yielded the requested information about 7,000 cell phone customers involved in over 9,000 calls. No information was gathered about the contents of, or the speakers involved in, any call. Indeed, there was no information about whether the call was answered or a message left.

[19] On November 30, 2006, police also sought and obtained a conventional search warrant for the records of transponder use by all motorists using Highway 407 near the jewellery store between 10:00 a.m. and 12:20 p.m. on November 17, 2006. There was no evidence that any particular automobile or person associated with an automobile entered, left or travelled along Highway 407 before, during or after the robbery.

The subscriber warrants

[20] Within days of the issuance and execution of the tower dump warrants, the police received the records requested in those warrants. By December 6, 2006, investigators had reached the conclusion that Fundi, one of the men involved in the earlier burka purchase from Amira Islamic Fashions, was an important potential suspect in the robbery. They began surveillance of Fundi's activities and observed his frequent associations with, among others, Mahmood, Sheikh and Muzzafar Malik, one of the men involved in the robbery who subsequently pled guilty and testified for the Crown.

[21] In early December, after police had identified at least some of the persons meeting frequently with Fundi, they reviewed the cell phone records obtained under the tower dump warrants. The records disclosed several calls between Fundi and Malik around the time of the robbery and the presence of their cell phones in the vicinity of the jewellery store at the time of the robbery. The records also disclosed calls to cell phones later identified as belonging to Sheikh and to Mahmood's common law spouse, Abida Chaudhary.

[22] Constable Hackenbrook supplemented the contents of the ITO for the tower dump warrants with the further information that police had pieced together through surveillance and review of the cellular telephone records produced under the tower dump warrants. The informant did not delete any information from the ITO for the subscriber warrants, such as the discussion of Project Impact, which he knew had nothing to do with the robbery of Zaibi Jewellers or any of the persons suspected of having participated in it. [page649]

[23] On December 8, 2006, a justice of the peace issued conventional search warrants to obtain the subscriber records for Fundi, Malik and for two cell phones registered to Mahmood's common law spouse, Ms. Chaudhary. The information sought covered a two-month period and included the cellular tower location information, the numbers called and calling, and the duration of each call.

The residential warrants

[24] After execution of the subscriber warrants, police continued physical surveillance and background checks on Fundi, Malik, Mohammed Siddiqui, Sheikh, Mahmood and Ahkbar Hassan. They identified those in frequent contact with Fundi as Malik, Mahmood and Sheikh. [See Note 1 below]

[25] As a result of Sheikh's association with Fundi and others suspected of participation in the robbery, Constable Hackenbrook checked the cellular phone records obtained under an earlier warrant. He found that the first call received on Malik's cell phone, at 8:31 a.m. on November 17, 2006, was from a number that investigators had not previously identified. Without a warrant, Hackenbrook called Rogers Wireless and found out that the unidentified number was registered to Sheikh.

[26] The ITO sworn on December 19, 2006 to obtain conventional search warrants for the homes of Fundi, Malik, Sheikh and Mahmood included the contents of the ITOs for the tower dump and subscriber warrants and added information obtained from the records seized under the earlier warrants.

[27] When the warrants were executed at the several homes, officers found currency, gold and jewellery. Mr. Khalid identified what had been stolen from his store on November 17, 2006.

The Ruling of the Trial Judge

[28] The appellants and Malik, who was then a co-accused, brought a Garofoli [See Note 2 below] application at the outset of trial challenging the grounds on which the warrants were issued. They sought exclusion of all the evidence obtained under the tower dump, subscriber and residential warrants.

[29] At trial, the appellants argued that the tower dump warrants had been improvidently issued because the ITO they were based on failed to establish the conditions precedent required [page650] under s. 487(1) of the Criminal Code, R.S.C. 1985, c. C-46. The critical reasonable grounds were lacking. In the result, the appellants alleged that the seizures made under the tower dump warrants offended s. 8 of the Canadian Charter of Rights and Freedoms and the records obtained should be excluded under s. 24(2) [of the Charter].

[30] The appellants further submitted that any and all references to the tower dump warrants and the information obtained as a result of their execution should be excised from the ITOs submitted for the subscriber and residential warrants. Once this was done, what remained, even as amplified, could not sustain the issuance of the warrants. The evidentiary harvest that followed their execution, the appellants argued, should not be admitted at trial.

[31] The trial judge gave lengthy reasons for judgment. He made several crucial findings.

[32] The trial judge concluded that cell phone subscribers have a reasonable expectation of privacy in records maintained by their cell phone provider. It followed that these records were subject to protection under s. 8 of the Charter.

[33] The trial judge examined the ITO that formed the basis for the tower dump warrants. He concluded that the ITO contained irrelevant information about Project Impact that should be excised and that there was no evidence cell phones were used by any of the participants in the Zaibi robbery. It followed, he said, that the ITO contained no information on the basis of which the requirements of s. 487(1) could be met. The warrant could not have been issued, thus the seizure was unreasonable. The records seized were excluded under s. 24(2).

[34] The trial judge next turned to the subscriber warrants. After excising all references to the irrelevant information repeated from the earlier ITO and the results of executing the tower dump warrants, the trial judge concluded that what remained could not support issuance of a s. 487 search warrant, but would sustain a telephone records order under s. 492.2(2). Despite the contravention of s. 8, the trial judge admitted the records obtained under the subscriber warrants pursuant to s. 24(2) of the Charter.

[35] As for the residential warrants, the trial judge determined, after excising all material relating to the issuance and execution of the preceding warrants, that the residential warrants could not have issued on the basis of what remained in the ITO. Despite the constitutional infringement, the trial judge admitted the evidence seized under the residential warrants under s. 24(2). [page651]

The Grounds of Appeal

[36] The appellants seek reversal of the trial judge's ruling admitting evidence of the results of the searches conducted under the subscriber and residential warrants.

[37] Apart from errors relating to individual appellants, the common complaints are these: (i) that the trial judge erred in concluding that investigators could have obtained the subscriber records under s. 492.2(2) of the Criminal Code upon satisfaction of a less vigorous standard than what was required under s. 487(1) (b); (ii) that the trial judge erred in concluding that the availability of the subscriber records by the alternative constitutional means provided for in s. 492.2(2) attenuated the seriousness of the s. 8 breach created by the faulty conventional search warrant; (iii) that the trial judge erred in limiting the effect of the s. 8 breach associated with the tower dump warrants to excision from the supportive informations for the subscriber and residential warrants, rather than considering it as a factor in his s. 24(2) analysis; and (iv) that the trial judge erred in his s. 24(2) analysis, which should have mandated exclusion, not permitted admission.

[38] Some appellants advance discrete grounds of appeal that involve claims that the trial judge misapprehended the evidence adduced on the inquiry into admissibility. Sheikh also says that the prosecutor improperly alerted the informant to the grounds to be advanced on the Garofoli review, thus creating an appearance of unfairness that caused a miscarriage of justice.

[39] It is convenient to consider these discrete claims of error first before turning to the common grounds that seek reversal of the s. 24(2) decision.

Analysis

Ground #1: Misapprehension of evidence

[40] Mahmood and Fundi contend that the trial judge misapprehended the evidence adduced on the inquiry into admissibility, thus made findings of fact critical to his ultimate decision about the admissibility of the records seized under the subscriber warrants and items found on the residential searches that lacked an evidentiary foundation. [page652]

The arguments on appeal

[41] Ms. Verner says that the trial judge was wrong in concluding, prior to the subscriber warrants, that "strong identification evidence" linked Fundi to the robbery. Apart from the tower dump records, which were excluded from consideration, the only evidence linking Fundi to the offence was what connected him to a burka purchase at Amira Islamic Fashions shortly before the robbery. Fundi was not at the store when the burka was exchanged for another. In any case, the ITO omitted the crucial fact that Islamic men often purchase burkas for their wives.

[42] Ms. Verner contends that the store owner's description of the robber alleged to be Fundi does not coincide with Fundi's appearance. What is more, she says, Khalid failed to identify Fundi in a photo array displayed to him about two months after the robbery. Fundi's involvement in the legitimate purchase and sale of gold furnishes no nexus between Fundi and the robbery.

[43] According to Ms. Verner, the trial judge also misapprehended the evidence that linked Mahmood to the robbery, thus erroneously concluding that his subscriber records could have been obtained under s. 492.2(2) at the time the subscriber warrants were issued. The only available evidence simply could not meet the test under either s. 487(1)(b) or s. 492.2(2).

[44] For the respondent, Mr. Bernstein rejects any suggestion that the trial judge misapprehended the evidence adduced about Mahmood's and Fundi's involvement in the robbery. The trial judge found there was substantial evidence linking Mr. Fundi to the robbery. The owner of Amira Islamic Fashions knew Fundi. Khalid did not purport to identify Fundi, whose face was covered, as a robber. Rather, the description Khalid provided was consistent with Fundi's size and with his build.

[45] Mr. Bernstein says that, at their core, these complaints about misapprehensions of evidence reduce to quibbles about the weight the trial judge assigned to the evidence as a whole in making his determinations of admissibility. These findings, absent palpable and overriding error, are subject to deference on appeal and ought not to be disturbed.

The governing principles

[46] A misapprehension of evidence may involve a failure to take into account an item or items of evidence relevant to a material issue, or it may have to do with a mistake about the substance of the evidence. A misapprehension of evidence may also reflect a failure to give proper effect to evidence: [page653] R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, [1995] O.J. No. 639 (C.A.), at p. 538 O.R.

[47] Every misapprehension of evidence does not render a trial unfair or result in a miscarriage of justice. An appellate court must determine the nature and extent of an alleged misapprehension and its significance to the decision under review, whether a determination of admissibility or a final conclusion about guilt. Rulings on admissibility and final verdicts must be based exclusively on evidence adduced at trial: Morrissey, at p. 541 O.R.

[48] The standard applied where an appellant advances misapprehension of evidence as a ground of appeal is stringent. The misapprehension of evidence, when advanced as a ground to impeach a final verdict, must be material, not merely peripheral to the reasoning of the trial judge, in other words, the reasons must play an essential part in the reasoning process resulting in a conviction, not just in the narrative of the judgment: R. v. Lohrer, [2004] 3 S.C.R. 732, [2004] S.C.J. No. 76, 2004 SCC 80, at para. 2.

The principles applied

[49] I would not give effect to this complaint about misapprehension of evidence.

[50] In this case, the complaint has nothing to do with the verdicts of guilt rendered by the jury at the end of the trial. The allegation here is that the trial judge failed to consider the frailties of the evidence linking Fundi to the jewellery store robbery when deciding whether the cumulative effect of the evidence satisfied the "reasonable suspicion" standard in s. 492.2(2) of the Criminal Code. The trial judge posited s. 492.2(2) as an alternative basis upon which investigators could have lawfully obtained the subscriber records, thus rendering the Charter infringement that occurred as a result of the improvidently issued search warrant under s. 487 less serious.

[51] Reduced to its essence, Fundi's complaint is about the weight the trial judge assigned to the evidence linking Fundi to the robbery. Fundi was linked to a contemporaneous burka purchase. The store owner knew Fundi. A bag from the same store was found on the floor of the jewellery store when police responded to the 911 call about the robbery. One of the robbers wore a burka. Fundi's physical features were similar to those of one of the robbers. Fundi dealt in gold jewellery.

[52] The trial judge laboured under no misapprehension about the substance of the evidence that he considered. Nor am I able to say, at this remove, that the trial judge failed to give the [page654] evidence its proper effect in reaching his conclusion about the applicability of s. 492.2(2).

[53] This ground of appeal fails.

Ground #2: Tipping off the informant

[54] For the first time on appeal, the appellant Sheikh complains about the conduct of the prosecutor at trial in preparing the informant for cross-examination on the motion to exclude evidence seized under the tower dump, subscriber and residential warrants. The complaint is that, despite a specific request from trial counsel not to do so, the prosecutor at trial tipped off the informant about the grounds upon which the appellants challenged the constitutional validity of the searches.

[55] Some further background is necessary to appreciate the nature of the alleged error and to determine its impact on the fairness of the trial.

The background facts

[56] Essential to the prosecutor's case at trial was evidence obtained under the auspices of the tower dump, subscriber and residential warrants. In each case, the informant who prepared and swore the ITO was the same police officer. Each successive ITO duplicated information contained in the previous ITO and added what investigators had found out after execution of the immediately preceding warrant.

[57] The informant testified at the preliminary inquiry. The evidence he had given there was to form part of the evidentiary foundation for the Garofoli hearing at trial, along with his cross-examination at the hearing.

[58] Trial counsel for Sheikh filed a factum to assist the trial judge on the Garofoli application. The factum outlined the legal arguments counsel intended to advance and the subjects to be explored in cross-examination of the informant. Trial counsel asked the prosecutor not to provide the informant with a copy of the factum and not to discuss with the informant the subjects to be explored in cross-examination.

[59] The prosecutor at trial met with the informant briefly before the informant testified on the Garofoli application. The prosecutor mentioned to the officer some of the general areas or subjects upon which the officer may be cross-examined. The trial record is otherwise barren of any details about the nature of any discussions between trial counsel or the prosecutor and the informant. [page655]

The arguments on appeal

[60] For Sheikh, Mr. Halfyard contends that the prosecutor's conduct was improper in the circumstances. Mr. Halfyard acknowledges the absence of any governing bright line rule, but he points out that here, trial counsel made a specific request of the prosecutor to guard against tainting. The subject of a warrantless request for Sheikh's phone number had not been raised at the preliminary inquiry. The pre-trial discussion with the prosecutor enabled the informant to construct an after-the-fact justification for the warrantless seizure and impaired the fairness of the trial.

[61] For the respondent, Mr. Bernstein urges dismissal of this allegation of error. The appellant made no complaint of it at trial, in his notice of appeal or in his supplementary notice of appeal. Nor has the appellant made any offer of proof about the circumstances of the discussion between trial counsel and the prosecutor, much less sought leave to adduce fresh evidence on the subject. The manner in which the issue has been raised is unfair to the prosecutor at trial, as well to the trial judge. One had no opportunity to respond and the other no chance to make findings about what had occurred or its effect on the outcome of the hearing.

The governing principles

[62] Finality of litigation is especially important in the prosecution of crime. And so it is that courts have set their collective face against permitting parties to raise new arguments on appeal. The concerns that undergird this opposition are two. The first has to do with prejudice to the other side caused by the absence of any real opportunity to respond and to adduce evidence at trial. The second involves the absence of a sufficient record upon which the reviewing court may make the findings of fact essential to properly decide the new issue: R. v. Brown, 1993 CanLII 114 (SCC), [1993] 2 S.C.R. 918, [1993] S.C.J. No. 82, at p. 923 S.C.R.; R. v. G. (L.), [2007] O.J. No. 3611, 2007 ONCA 654, 228 C.C.C. (3d) 194, at para. 43; and R. v. R. (R.) (1994), 1994 CanLII 8728 (ON CA), 19 O.R. (3d) 448, [1994] O.J. No. 1458, 91 C.C.C. (3d) 193 (C.A.), at pp. 452-54 O.R., pp. 198-99 C.C.C.

[63] The second controlling principle has to do with the merits of the appellant's claim, rather than the impediments to its advancement as res integra on appeal. No bright line rule prohibits a party from disclosing to a witness on a Garofoli application the arguments to be advanced in support of the application, and thus the thrust of the proposed cross- examination. Each [page656] case depends and must be decided on its own facts. What would be improper in one case may be entirely appropriate in another: R. v. Lajeunesse, 2006 CanLII 11655 (ON CA), [2006] O.J. No. 1445, 208 O.A.C. 385 (C.A.), at paras. 24-28.

The principles applied

[64] This ground of appeal founders at the threshold.

[65] Apart from brief cross-examination of the informant about meeting with the prosecutor prior to the Garofoli application, the complaint now advanced as a ground of appeal was never bruited before the trial judge. The record is bereft of any evidence about the nature of the discussions between trial counsel, in particular, whether trial counsel sought or the prosecutor gave any undertaking about pre-trial discussions with the informant about the grounds to be advanced on the Garofoli application.

[66] The failure of trial counsel to raise the issue now advanced denied the prosecutor the opportunity to make submissions or adduce evidence on the issue before the trial judge. Likewise, we are in no position to make any findings of fact, much less to determine whether whatever may have occurred was improper. In these circumstances, the finis litium principle should prevail.

[67] Further, no fixed or invariable rule holds that it is never appropriate for counsel to alert a witness to a subject that is likely to be raised in cross-examination, or to supply the witness with a factum that outlines the arguments that may be advanced on an admissibility inquiry.

[68] I would not accede to this ground of appeal.

Ground #3: The subscriber warrants

[69] This ground of appeal takes in several discrete complaints about the trial judge's decision to admit evidence obtained by execution of constitutionally flawed subscriber warrants. All of the appellants contend that the trial judge was wrong to consider that a telephone records order under s. 492.2(2) would have entitled investigators to the same records, thus attenuated the seriousness of the s. 8 violation in this case. The appellants say that the trial judge further erred in his analysis under s. 24(2) by failing to take into account the unconstitutional conduct that occurred in obtaining the tower dump records. Sheikh adds that, in his case, the investigators identified him as a subscriber as a result of a warrantless search of records held by his cell phone provider.

[70] Some additional background and a brief reference to the findings made by the trial judge are essential to a determination [page657] of the correctness of the decision to admit the subscriber records as evidence.

The background facts

[71] The ITO for the subscriber warrants repeated the contents of the ITO for the tower dump warrants and added what the police had learned through surveillance and other means during the period between the two sets of warrants.

[72] The ITO for the subscriber warrants indicated that the burka purchase had been made between November 10 and 13, 2006. Fundi, Hassan and Siddiqui had participated in the original purchase. Physical surveillance of Fundi showed his association with others in their vehicles and vehicle registration checks confirmed the ownership of several of these automobiles. An analysis of the tower dump records established that Fundi and Malik spoke by cell phone 15 times in the immediate vicinity of the robbery on the day it occurred.

[73] Once again, the informant sought a conventional search warrant for telephone records of named subscribers, including Fundi, Malik and Chaudhary during a three-month period. The information sought included

the subscriber's cellular telephone contracts, records of telephone numbers called by specific cellular telephones, records of telephone numbers received by specific cellular telephones, the cellular towers that communicated these telephone calls and the locations of the cellular towers that were being used during the time of the robbery[.]

The findings of the trial judge

[74] The trial judge concluded that when they sought the subscriber warrants, the police had at least suspected, if not had "a credibly probative belief" that Fundi, Malik and someone they thought was Chaudhary (but who was in fact Mahmood, using Chaudhary's cell phone) had been involved in the Zaibi robbery. The trial judge found that the investigators reached their conclusion by cross-referencing the names of the suspects obtained by traditional police references (motor vehicle permit checks) with the content of the records obtained under the tower dump warrants. In combination, this information permitted investigators to conclude that the suspects were in the area of the robbery when it took place and frequently communicated with each other by cell phone.

[75] The trial judge found that the appellants had a reasonable expectation of privacy in their cell phone data obtained under the tower dump and subscriber warrants. Further, the data obtained under both sets of warrants was obtained under [page658] warrants that could not have been issued because the ITOs failed to disclose reasonable and probable grounds. The trial judge excluded the records seized under the tower dump warrants.

[76] In his review of the issuance of the subscriber warrants, the trial judge excised from the ITO any cellular phone data gathered under the flawed tower dump warrants. The information subsequently gathered by traditional police methods about Fundi's involvement could not have supported the issuance of a conventional search warrant for Fundi's phone records, but could have supported the issuance of a telephone records order under s. 492.2(2), which would have achieved the same result. This would also have led to Malik. Together with the surveillance evidence that demonstrated the close association of the appellants and Malik in the days following the robbery, telephone records orders could have been issued under s. 492.2(2) for all of the appellants on the basis of reasonable suspicion.

[77] The trial judge decided that the police had available to them a constitutional means to get the same information they gathered under the defective subscriber warrants. The availability of this alternative, a telephone records order under s. 492.2(2), which could be issued on the less onerous standard of "reasonable suspicion", attenuated the seriousness of the Charter breach and weighed heavily in favour of admissibility. The trial judge admitted the subscriber records into evidence.

The arguments on appeal

[78] The appellants align themselves with the trial judge's conclusions that cell phone subscribers, including the appellants, have a reasonable expectation of privacy in the records created and maintained by their cell phone provider. And they agree that the trial judge correctly concluded that the subscriber warrants could not have been issued because what remained in the ITO after excision of the tower dump information could not satisfy the test for a conventional search warrant under s. 487.

[79] The appellants part company with the trial judge, however, on his refusal to take into account in his analysis under s. 24(2), the unconstitutional conduct associated with the tower dump records and with his decision that s. 492.2(2) afforded an alternative basis upon which the subscriber records could have been obtained. The appellants contend this should not have attenuated the seriousness of the unconstitutional seizure made under the defective warrant under s. 487.

[80] The appellants argue that the reference in the ITO to information obtained under the unconstitutional tower dump warrants had to be excised for the purposes of the Garofoli [page659] hearing. However, this unconstitutional conduct was also inextricably linked to the evidence obtained under the subscriber warrants, thus it should have been a factor in the judge's assessment of the seriousness of the infringement under s. 24(2) when deciding on the admissibility of the evidence gathered under the subscriber warrants.

[81] The appellants say that the trial judge was wrong to conclude that the subscriber records could have been obtained by a telephone records order under s. 492.2(2). Orders issued under s. 492.2(2), according to the appellants, supplement number recorder warrants issued under s. 492.2(1) and can only be issued in conjunction with a number recorder warrant. No number recorder warrant, no telephone records order. In any case, telephone records orders under s. 492.2(2) operate prospectively, yielding records contemporaneous with the operation of the number recorder. The subsection plainly does not permit seizure of records of calls made prior to the issuance of the number recorder warrant.

[82] The appellants also contend, in the alternative, that in his s. 24(2) analysis in connection with the subscriber records, the trial judge should have considered the availability of s. 492.2(2) as a means of obtaining the same records as a factor that rendered the Charter infringement more, rather than less serious.

[83] For Sheikh, Mr. Halfyard adds that the infringement was exacerbated by further unconstitutional conduct when investigators obtained his name as the subscriber of a specific cell phone without a warrant and used this information to obtain the subscriber warrant.

[84] Ultimately, the appellants contend that the trial judge should have excluded the evidence obtained under the subscriber warrants.

[85] Mr. Bernstein advances several arguments for the respondent. He begins with the submission that cell phone subscribers have no reasonable expectation of privacy in the records maintained by their cell phone providers and delivered under the subscriber warrants. What is at issue here, Mr. Bernstein says, is informational privacy. To be deserving of constitutional protection, the information obtained must relate to a biographical core of personal information that individuals want to maintain and control from dissemination to the state. Subscriber data, of calls made and received, of times and numbers and phone locations, is not information that tends to reveal intimate details of the lifestyle and personal choices of the subscribers. It [page660] follows, Mr. Bernstein says, that no warrant was required to obtain what was gathered under the subscriber warrants.

[86] In the alternative, Mr. Bernstein submits that even with excision of the tower dump material from the subscriber warrant ITO, the warrant could still have issued in connection with Fundi. Fundi was linked to the robbery by evidence of the burka purchase, of his involvement as a buyer and seller of gold and his association with the others immediately after the robbery. Sheikh cannot seek excision of the tower dump material because his number does not appear in the records obtained and his complaint about a warrantless search founders because the information obtained, his name as a subscriber, is not subject to a reasonable expectation of privacy.

[87] Mr. Bernstein says that the trial judge properly concluded that a telephone records order under s. 492.2(2) could have yielded, on a constitutionally sound basis, the same information as a subscriber warrant. Telephone records orders, issued on a less stringent standard of reasonable suspicion, are not dependent on issuance of a number recorder warrant under s. 492.2(1). Telephone records orders can be issued together with, or independently of, number recorder warrants and include information about prior or future telephone use. The trial judge correctly concluded that, shorn of information obtained by the unconstitutional tower dump warrants, what remained would have satisfied the lower standard of s. 492.2(2) and yielded the same subscriber information.

[88] Mr. Bernstein denies any flaw in the trial judge's analysis under s. 24(2) in connection with the subscriber warrants. The trial judge need not have factored in the tower dump infringement and he correctly gauged the impact of the alternative constitutional authority under s. 492.2(2). The trial judge correctly found good faith and rightly admitted the evidence.

The governing principles

[89] The trial judge's decision about the admissibility of the records obtained under the subscriber warrants, and the reasons that underpin that decision, raise several issues. A discussion of the principles at work on each issue will inform their application to the circumstances in this case.

Reasonable expectation of privacy

[90] The s. 8 Charter guarantee of security from unreasonable search or seizure protects only a reasonable expectation: R. v. Tessling, [2004] 3 S.C.R. 432, [2004] S.C.J. No. 63, 2004 SCC 67, at para. 19; and Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36, at p. 159 S.C.R. [page661] To determine whether an investigative procedure invades a reasonable expectation of privacy requires consideration of all the circumstances, especially whether a subjective expectation of privacy exists and whether, if it does, the expectation is objectively reasonable in the circumstances: Tessling, at para. 19; R. v. Edwards (1996), 1996 CanLII 255 (SCC), 26 O.R. (3d) 736, [1996] 1 S.C.R. 128, [1996] S.C.J. No. 11, at para. 45.

[91] The privacy interests protected by s. 8 include personal privacy, territorial privacy and informational privacy: Tessling, at para. 20. We are concerned here with informational privacy.

[92] Informational privacy has to do with how much information about ourselves and our activities we are entitled to shield from the curious eyes and ears of the state: Tessling, at para. 23. Informational privacy is the claim of individuals, groups or institutions to determine for themselves when, how and to what extent information about them is communicated to others: Tessling, at para. 23.

[93] Section 8 protects the biographical core of personal information that individuals, in a free and democratic society, would wish to maintain and control from dissemination to the state: R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, [1993] S.C.J. No. 97, at p. 293 S.C.R.; Tessling, at para. 25. This biographical core includes, but is not confined to, information that tends to reveal intimate details about an individual's lifestyle and personal choices: Tessling, at para. 26; Plant, at p. 293 S.C.R.

[94] Section 8 does not protect all information that an individual may wish to keep confidential: Tessling, at para. 26. On the other hand, merely because the information for which protection is sought is commercial in its nature does not exclude it from the protection of s. 8: Tessling, at para. 23; R. v. Law, [2002] 1 S.C.R. 227, [2002] S.C.J. No. 10, 2002 SCC 10, at para. 16.

[95] Where concerns about informational privacy emerge, the quality of the information said to be protected by the guarantee in s. 8 is important: Tessling, at para. 28. Relevant factors that inform whether information will fall within or beyond the interest protected by s. 8 are set out in Plant, at p. 293 S.C.R. These include, but are not limited to (i) the nature of the information itself; (ii) the nature of the relationship between the party releasing or holding the information and the party asserting confidentiality; (iii) the place where the information was obtained; and [page662] (iv) the manner in which the information is obtained.

[96] It is worth remembering that all reasonable expectations of privacy are not equal. Some are of a greater magnitude than others. The degree of personal privacy reasonably expected at customs on entry to Canada, for example, is lower than in most other situations: R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, [1988] S.C.J. No. 86, at p. 528 S.C.R. Likewise, a comparatively low expectation of privacy attaches to premises or documents used or produced in the course of activities which, though lawful, are state regulated, and thus routinely inspected by state officials. Business records raise much weaker privacy concerns than personal papers: Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425, [1990] S.C.J. No. 23, at pp. 517-18 S.C.R.

[97] The minimal nature of the intrusion by which information is obtained may also be of importance in assessing whether a reasonable expectation of privacy has been established, especially where the activity monitored is itself subject to a reasonable expectation of privacy: R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527, [1992] S.C.J. No. 16, at pp. 534-35 S.C.R.

[98] Telephone records sought to establish that contact occurred between, or among, various persons have been characterized as having a reduced expectation of privacy, at least by comparison to therapeutic records: R. v. M. (B.) (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) 1, [1998] O.J. No. 4359 (C.A.), at para. 62. See, also, R. v. Hutchings, 1996 CanLII 703 (BC CA), [1996] B.C.J. No. 3060, 111 C.C.C. (3d) 215 (C.A.), at para. 25.

The standard of review

[99] A reviewing judge does not substitute his or her view for that of the justice who issued the warrant. Rather, the reviewing judge considers the record before the issuing justice, the ITO, trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant: R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, at paras. 40-42; R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343, [2005] S.C.J. No. 67, 2005 SCC 66, at paras. 8 and 30; R. v. Araujo, [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65, 2000 SCC 65, at paras. 54 and 59; R. v. Garofoli, supra, at p. 1452 S.C.R.; and R. v. Wiley, 1993 CanLII 69 (SCC), [1993] 3 S.C.R. 263, [1993] S.C.J. No. 96, at pp. 273-74 S.C.R. [page663]

Telephone records orders under s. 492.2(2)

[100] Investigators did not seek a number recorder warrant under s. 492.2(1) or a telephone records order under s. 492.2(2). The alternative of a telephone records order under s. 492.2(2) was raised by the prosecutor at trial in argument as an alternative source for lawful seizure of the subscriber records in the event that the s. 487 warrants were found constitutionally flawed. The trial judge held that the availability of this constitutionally sound alternative source for the subscriber records, available on proof of reasonable suspicion, diminished the seriousness of the Charter infringement caused by the defective conventional search warrants.

[101] Section 492.2(1) and (2) provide:

Information re number recorder

492.2(1) A justice who is satisfied by information on oath and in writing that there are reasonable grounds to suspect that an offence under this or any other Act of Parliament has been or will be committed and that information that would assist in the investigation of the offence could be obtained through the use of a number recorder, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant (a) to install, maintain and remove a number recorder in relation to any telephone or telephone line; and (b) to monitor, or to have monitored, the number recorder.

Order re telephone records

(2) When the circumstances referred to in subsection (1) exist, a justice may order that any person or body that lawfully possesses records of telephone calls originated from, or received or intended to be received at, any telephone give the records, or a copy of the records, to a person named in the order.

[102] Section 492.2(3) incorporates the provisions of s. 492.1(2) and (3) into the warrants and orders of s. 492.2(1) and (2) with such modifications as the circumstances require. The incorporated provisions limit the time periods for which the warrants and orders are valid and permit issuance of further warrants and orders under the subsections.

[103] In general terms, s. 492.2(1) authorizes a justice to issue a number recorder warrant provided the justice is satisfied by an information on oath and in writing that there are reasonable grounds to suspect that an offence against a federal statute has been or will be committed, and that information that would assist in the investigation of that offence could be obtained through the use of a number recorder, as defined in s. 492.2(4). [page664] The warrant looks forward for a period not exceeding 60 days and gathers information about telephone numbers and locations from which calls are made, at which they are received or to which they are intended.

[104] An order under s. 492.2(2) may only be made "when the circumstances referred to in subsection (1) exist". An order under s. 492.2(2) requires production, to a person named in the order, of records of telephone calls originated from, or received, or intended for reception, at any telephone. The use of the present tense "possesses" in subsection (2) appears to refer to records extant at the time the order is made, thus including records that catalogue previous calls.

[105] To interpret the meaning of s. 492.2(2) requires us to read the words in the subsection in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament: Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21. We are also to give the provision such fair, large and liberal construction and interpretation as will best ensure the attainment of its object, according to its true intent, meaning and spirit: Rizzo, at para. 22; Interpretation Act, R.S.C. 1985, c. I-21, as amended, s. 12; and Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, at paras. 26-27.

[106] Once we have determined the ordinary meaning of the subsection, we must go on to consider the context of the provision, the purpose and scheme of the legislation, the consequences of adopting the ordinary meaning and any other relevant indicators of legislative meaning: York Condominium Corp. No. 382 v. Jay-M Holdings Ltd. (2007), 2007 ONCA 49, 84 O.R. (3d) 414, [2007] O.J. No. 240 (C.A.), at para. 13. Our interpretation must be plausible, in other words, one that the language is reasonably capable of bearing, and should avoid any inconsistency between related provisions: York Condo, at paras. 14-15.

[107] A number recorder is a device that can be used to record or identify a telephone number or the location of a telephone from which a call originates or at which the call is received or is intended to be received: Criminal Code, s. 492.2(4). The recorder is activated when the subscriber's telephone is taken "off the hook". Electronic impulses from the monitored telephone are recorded on a computer printout tape that discloses the number called when an outgoing call is placed. The number recorder does not record whether the receiving telephone was answered by a person or the substance of any conversation. For incoming calls, the number recorder records only the number calling and [page665] how long the monitored telephone was "off the hook" when answered: R. v. Fegan (1993), 1993 CanLII 8607 (ON CA), 13 O.R. (3d) 88, [1993] O.J. No. 733 (C.A.), at para. 19.

[108] The introductory words of s. 492.2(2), "when the circumstances referred to in subsection (1) exist", are critical to the authority to make an order for the production of telephone records. To some, like the appellants, the language means that an order to produce telephone records can only be made where a number recorder warrant has been granted under s. 492.2(1). To others, like the respondent, an order under s. 492.2(2) is not dependent on the concurrent issuance of a number recorder warrant, but only on proof of the conditions precedent to the issuance of such a warrant.

[109] The language chosen by Parliament in s. 492.2(2) is substantially different than the language Parliament uses when the issuance of one order depends on the issuance of a warrant or authorization. For example, an assistance order under s. 487.02 may only be made "where an authorization is given . . . a warrant is issued . . . or an order is made" under a specified Criminal Code provision. Similar language appears in s. 487.03(1), "[i]f a warrant is issued . . ." under a listed provision, which authorizes a judge or justice to make an order allowing execution of the warrant in a province other than where it was issued.

[110] In sentencing, Parliament has authorized judges to make a wide range of ancillary orders predicated upon certain conditions precedent. DNA orders under s. 487.051(1) and (2) require that an offender be convicted of a "primary designated offence" as that term is defined in s. 487.04. Weapons prohibitions under ss. 109 and 110 are predicated upon conviction or discharge of certain categories of offences and use language like "where a person is convicted or discharged under section 730" to identify the conditions precedent. Similar language appears in s. 161(1), which authorizes a sentencing judge to prohibit an offender found guilty of a listed sexual offence from attending in certain places, seeking or holding certain employment, or using a computer system for specified purposes.

[111] In reaching a conclusion about the meaning to assign to the words "when the circumstances referred to in subsection (1) exist" in s. 492.2(2), it is helpful to recall that where Parliament intends to make the issuance of one order contingent or dependent upon the prior or contemporaneous existence of another, it does so, as for example in s. 487.02, in specific language that differs markedly from what appears at the beginning of s. 492.2(2). Had it been Parliament's intention to limit the authority to issue orders for production of telephone records to instances in which [page666] a number recorder warrant had been or was being issued, language like "where a warrant is issued under subsection (1)" would have been used.

[112] The introductory clause in s. 492.2(2) is expansive enough to include circumstances in which a number recorder warrant is issued under s. 492.2(1). On the other hand, the language would permit a production order for existing records of previous calls, provided the justice was satisfied that there were reasonable grounds to suspect an offence under a federal statute had been or would be committed, and that information that would assist in the investigation of that offence could be obtained through an examination of the records. Historical information contained in the records may well assist investigators, for example, to obtain a number recorder warrant, a general warrant for video surveillance or an authorization to intercept private communications.

[113] The standard "reasonable grounds to suspect" in s. 492.2(1) is less exacting than "reasonable grounds to believe" that is required for a conventional search warrant. The standard is objective in nature and has been adopted by Parliament for searches in areas that involve lesser expectations of privacy: R. v. M. (A.) (2008), 92 O.R. (3d) 398, [2008] 1 S.C.R. 569, [2008] S.C.J. No. 19, 2008 SCC 19, at para. 77.

[114] In the search context, a "suspicion" has been characterized as an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable suspicion" means something more than a mere suspicion and something less than a belief based on reasonable and probable grounds. A sincerely held subjective belief is not a reasonable suspicion. To be reasonable, a suspicion must be supported by factual elements about which evidence can be adduced and permit an independent judicial evaluation: R. v. Kang-Brown, [2008] 1 S.C.R. 456, [2008] S.C.J. No. 18, 2008 SCC 18, at para. 75; R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182, [1993] O.J. No. 308 (C.A.), at p. 202 O.R.

The relevance of prior unconstitutional conduct

[115] Prior unconstitutional conduct is relevant in two discrete contexts in this case. The first has to do with excision from the ITO of information obtained by unconstitutional means. The second relates to the influence of prior unconstitutional conduct on the application of s. 24(2) to evidence obtained later in the investigation and not directly as a result of the previous constitutional infringement.

[116] The parties agree about excision. Information obtained by unconstitutional means must be excised from the ITO on [page667] Garofoli review and what remains, as amplified on review, must be assessed to determine whether the warrant could have issued: Araujo, at para. 52; Wiley, at pp. 273-74 S.C.R.; and R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, [1993] S.C.J. No. 98, at p. 251 S.C.R.

[117] Prior unconstitutional conduct may also have an impact on the decision about admissibility of evidence obtained by later Charter infringement, at least where there is a sufficient nexus between the prior infringement and the later gathering of evidence: R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, [1988] S.C.J. No. 94, at pp. 1005-1006 S.C.R.; Grant (1993), supra, at pp. 254-55 S.C.R.; Wiley, at p. 278 S.C.R.; and Plant, at p. 299 S.C.R.

The relevance of alternative methods

[118] The trial judge concluded that the information obtained under the subscriber warrants, which he found were obtained by constitutional infringement because the warrants could not have been issued, could have been obtained constitutionally on a lesser standard of reasonable suspicion under s. 492.2(2). The trial judge concluded, further, that the availability of this alternative and constitutional means of obtaining the same records ameliorated the infringement and favoured the admission on the records as evidence.

[119] The authorities are not uniform about the impact of an available constitutionally sound alternative on the analysis of the seriousness of the Charter violation. Sometimes it lessens the seriousness; at other times, it enhances it: R. v. Harris (2007), 2007 ONCA 574, 87 O.R. (3d) 214, [2007] O.J. No. 3185 (C.A.), at paras. 69-70. The failure to use lawful means to obtain the evidence may indicate a blatant disregard for Charter rights, and thus render the breach more serious: Harris, at para. 69. On the other hand, where the unconstitutional conduct was a good faith error on the part of the police, the availability of the same evidence by lawful means may significantly diminish the seriousness of the breach: Harris, at para. 70.

Admissibility under s. 24(2)

[120] The purpose of s. 24(2) is to maintain the good repute of the administration of justice. The term "administration of justice" embraces maintaining the rule of law in upholding Charter rights in the justice system as a whole, R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, at para. 67. The focus of subsection 24(2) is long-term, prospective and societal: Grant, at paras. 68-70.

[121] On applications to exclude constitutionally tainted evidence under s. 24(2), courts are to assess and balance the effect [page668] of admitting the evidence on society's confidence in the justice system taking into account (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the Charter-protected interests of the accused; and (iii) society's interest in the adjudication of the case on its merits. Courts are to balance the assessments under each of these lines of inquiry to determine whether, taking into account all the circumstances, admission of the evidence would bring the administration of justice into disrepute: Grant, at para. 71.

[122] The first line of inquiry requires an evaluation of the seriousness of the conduct that led to the breach. Seriousness is a variable, not a constant. Sometimes, inadvertent or minor. At other times, willful or reckless. And on yet further occasions, somewhere in between: Grant, at para. 74; R. v. Harrison, [2009] 2 S.C.R. 494, [2009] S.C.J. No. 34, 2009 SCC 34, at paras. 22-23. Good faith will reduce the need for the court to dissociate itself from the police conduct, but evidence that the Charter-infringing conduct was part of a pattern tends to support exclusion: Grant, at para. 75.

[123] The second line of inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. We must evaluate the extent to which the breach actually undermines the interest protected by the right infringed. The impact may vary from fleeting and technical to the profoundly intrusive: Grant, at para. 76. An unreasonable search that intrudes on an area in which an individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not: Grant, at para. 78.

[124] The public interest in truth-finding is a relevant consideration under s. 24(2). Under the third line of inquiry, the reliability of the evidence and its importance to proof of the prosecution's case are relevant factors: Grant, at paras. 81 and 83; Harrison, at para. 33.

The principles applied

[125] The trial judge concluded that the subscriber records had been obtained unconstitutionally. The warrants had been issued in the absence of the required evidentiary foundation. [page669] But the records were admissible, nonetheless, under both the Collins factors and the lines of inquiry mandated by Grant. [See Note 3 below]

[126] As I will explain, I agree with both determinations the trial judge made, although not for all the reasons he advanced for his conclusions.

[127] Take first the issue of Charter infringement. The subscriber records contain information about cell phone traffic, calls to and from telephones of named subscribers. The information disclosed by the records does not tell us who used the cell phone to make or receive the call. Indeed, except by inference from the length of the call, the record does not reveal whether the call was answered by anyone, much less the intended recipient. The records do disclose something of the general location of the caller and (intended) recipient, but nothing of what they said or what they were doing when they talked.

[128] The records are maintained by a third party, a commercial provider of cell phone services to those who choose to subscribe. The records are maintained for billing purposes as part of a commercial relationship in a regulated field and were obtained from the cell phone provider.

[129] The usefulness of cell phone records is largely dependent on other information that the police have or can gather, such as tower locations. The records themselves reveal few, if any, intimate details of the lifestyle and personal choices of the subscriber. Numbers called. General locations where calls have been placed or received. Names of recipients or calling partners. Some of the information is available through other sources, not only law enforcement agencies.

[130] The very existence of s. 492.2 could be taken as some evidence that a reasonable expectation of privacy exists for information gathered by number recorder or by production of telephone records. After all, Parliament felt it necessary to enact the section to provide for number recorder warrants under s. 492.2(1) and for production orders for telephone records under s. 492.2(2). Thus, Parliament must have been concerned about the prospect of a constitutional infringement in the absence of such warrants. But it is also worth remembering that the standard to be met for the order is reasonable suspicion, a standard [page670] less than reasonable grounds, advocated as the general rule in Hunter and more reflective of a lessened expectation of privacy as was noted in Simmons.

[131] In the result, although I am satisfied that a reasonable expectation of privacy does attach to the records obtained under the subscriber warrants, the expectation is one that is significantly reduced: M. (B.), at para. 62.

[132] The authority relied upon to obtain the subscriber information to which the lessened but nonetheless reasonable expectation of privacy attached was a conventional search warrant under s. 487. However, when the unconstitutionally obtained information was excised from the ITO, the cupboard was bare. I agree with the trial judge that what remained could not support the issuance of a conventional search warrant. Thus, the information obtained and the obtainment of subscriber warrants was the product of constitutional infringement. Its admissibility depends on the application of s. 24(2).

[133] In the usual course, we would accord deference to the trial judge's findings under s. 24(2). But here, I would not do so. My reason is this. The tower dump records were obtained by constitutional infringement. The information obtained from them was excised from the ITO for the subscriber warrants. However, there was a sufficient nexus between the tower dump information and the information obtained under the subscriber warrants that the prior unconstitutional conduct should have been included in the s. 24(2) analysis for the subscriber information.

[134] Despite not according deference to the trial judge's s. 24(2) analysis, my application of the governing principles would equally result in admission of the subscriber records.

[135] The seriousness of Charter violations is variable, not constant. They represent shades of colour on a spectrum, points on a continuum. To seize the subscriber records, investigators obtained a warrant that was deficient because the ITO failed to satisfy the standard required, that is, a reasonably grounded belief. The seizure was not warranted because the warrant was improvidently issued, but the seizure was not warrantless. The violation was exacerbated, however, by the prior tower dump seizure, which was equally unconstitutional.

[136] Further, despite the infirmity of the conventional search warrant for the subscriber information, investigators invoked (but failed to satisfy) a standard of credibly based probability. Available to them was an alternative, a telephone records order under s. 492.2(2), which could have yielded the same evidence in a constitutionally sustainable way. The availability of this alternative, coupled with the good faith finding of the trial judge with [page671] which there is no reason to interfere, diminishes the seriousness of the combined violations.

[137] To gauge the impact of the infringement on the Charter- protected interests of the appellants, recall that we are not concerned here with personal or territorial privacy. No home was invaded or bodily integrity or personal dignity intruded upon. This case has to do with informational privacy, commercial records accumulated by a third party in a regulated industry. Numbers called and calling. When and where the calls were made. By any standard of measurement, the expectation of privacy here was significantly reduced.

[138] The evidence gathered is reliable and relevant to the proof of guilt. It assists, to confirm Malik, or with other evidence, to establish contemporaneous communications among the alleged participants in what is said to be a planned armed robbery. Its exclusion would undermine the truth- seeking function of the criminal trial. This documentary evidence is real, largely impervious to cross-examination.

[139] I would not give effect to this ground of appeal.

Ground #4: The residential warrants

[140] The trial judge concluded that the residential warrants were flawed on the same basis as the subscriber warrants, in other words, that, after excision of unconstitutionally obtained information, what remained could not sustain the findings required to support their issuance. Brief recapture of some background will set up the discussion that follows.

The background facts

[141] The ITO relied upon for the residential warrants included the same information that was included in the ITO for the tower dump and subscriber warrants. In addition, the ITO for the residential warrants catalogued the results of further police investigations as a result of information obtained under the subscriber warrants. The additions included analysis of cell phone activity of Mahmood, Fundi and Malik on the day of the robbery and police surveillance of their frequent association and daily activities.

[142] The items sought as evidence under the residential warrants included disguises, jewellery, handguns, cell phones, items of clothing and currency.

The findings of the trial judge

[143] The trial judge concluded that the significant components of the ITO for the residential warrants were the ITO for [page672] each of the prior warrants and an analysis of the records obtained under each. The unconstitutionality of both prior searches required excision of the supporting material and anything derived from their execution leaving the residential warrants insufficiently grounded and resulting in a constitutionally infirm search "as a technical matter".

[144] The trial judge noted that had investigators sought a telephone records order under s. 492.2(2) on the basis of reasonable suspicion, rather than a search warrant under s. 487 on the basis of reasonable grounds, they would have obtained the subscriber records and, with other evidence garnered through other investigative procedures, would have had a sufficient basis to obtain the residential warrants.

[145] The trial judge expressly considered the effect of the failure of investigators to get a warrant to obtain Sheikh's cell phone number from Rogers. The judge concluded that the police had enough information to get the number lawfully under s. 492.2(2). Their failure to do so was of no constitutional consequence.

[146] The trial judge expressed his views on the issue of good faith in paras. 179 and 180 of his reasons [2008 CanLII 51774 (ON SC), [2008] O.J. No. 3922 (S.C.J.)]. He wrote:

This then leaves the issue of good faith. It must inevitably be concluded here that there was some lack of the care and precision that ought to be taken by police authorities in obtaining warrants generally, and these warrants specifically, but that is not enough to cause a finding of bad faith to be made in this case. In R. v. Kesselring, 2000 CanLII 2457 (ON CA), [2000] O.J. No. 1436, 145 C.C.C. (3d) 119 at paragraphs 32-33, the Court of Appeal emphasized that police officers should attempt to be scrupulously accurate in preparing and swearing informations used to obtain warrants. It acknowledged, however, that not all errors in the preparation of an information in support of a warrant will cause it to be found invalid on review. Like there, I find here, apart from the serious errors made in the preparation of the Tower Dump warrants, that the errors found in the subsequent two I.T.O.'s were not of a quality that could seriously mislead the authorizing Justice of the Peace, and it was equally evident to me that Officer Hackenbrook can not fairly be accused of proceeding in an offhand or cavalier manner. While he did provide some greater emphasis in certain statements in the I.T.O.'s than should have been the case, he impressed me as having made a fair and honest effort to ensure that he was not performing an advance editing function but instead giving the Justice virtually all of the information that he had obtained and that was relevant.

As Crown counsel observed, there is a world of difference between intentionally misleading the warrant issuing Justice and an innocent mistake or series of mistakes. This is not a case like R. v. Ebanks, [2007] O.J. No. 2412 (S.C.J.O.) or R. v. Hoise (1996), 1996 CanLII 450 (ON CA), 107 C.C.C. (3d) 385 (O.C.A.), and the efforts of defence counsel to draw analogies and similarity comparisons between those cases and this case are unfounded. It seems apparent in reading Justice Rosenberg's reasons in Hosie at paras. 26-27 that a conclusion was reached that the officer had lied in preparing the I.T.O. in that case. There is [page673] simply no foundation for such a conclusion to be reached in this case, in the context of any of the warrants, much less specifically the December 19 Residential Warrants. Further, there is to my mind no basis upon which a finding could be made in this case against Officer Hackenbrook akin to the findings in Ebanks at paras. 285 and 287, that he intentionally omitted information that even approached the seriousness of the omissions that Trafford J. was confronted with in that case, or that his preparation of any of the I.T.O.'s reflected a reckless disregard for the truth and for the role of a judge on an ex parte application. Notwithstanding that errors made here, and specifically the continuing inclusion in the December 8 and 19 warrants of the irrelevant front end information initially set out in the November 30 warrant, I find that the police here were continuously working in good faith to quickly resolve this case.

[147] In his s. 24(2) analysis after the release of Grant and Harrison, the trial judge characterized the Charter violations associated with the subscriber and residential warrants as "entirely technical in nature". The impact on the Charter- protected interests of the appellants was lessened by the reduced expectation of privacy in their subscriber records and attenuated in connection with their homes for these reasons [[2009] O.J. No. 3192 (S.C.J.)]:

However, on these facts, it is equally inevitable that the impact of these Charter breaches on the Charter-protected privacy interests of the accused in their homes must be regarded as muted, as the Crown has argued on this re- hearing. They must be muted to some degree given my findings that in the absence of the technical Charter breaches that the police committed, they otherwise factually had reasonable and probable grounds to search the residences of the accused. These were not cases of suspicion-based searches of the homes. Necessarily, this means that were it not for the technical breaches committed by the state, legal grounds would have been present to obtain the subscriber records and that evidence and the other evidence gathered by traditional police investigative techniques would have permitted the Residential Warrants to withstand scrutiny under s. 8. In that event those searches would have been fully supported from a legal perspective, and thus no privacy interest under s. 8 would ever have been violated, regardless of the theoretical sanctity of one's home "as his castle".

[148] The trial judge further concluded that the societal interest in the determination of the case on its merits overwhelmingly favoured the admission of the evidence, as did the balancing of all three lines of inquiry. He admitted the real evidence obtained on execution of the residential warrants.

The arguments on appeal

[149] The submissions of the appellants essentially tracked their arguments about the subscriber warrants. Pruned of its unconstitutionally obtained contents, what remains, even if amplified, falls short of what was required for the issuance of a search warrant under s. 487. The availability of a telephone records order under s. 492.2(2) to obtain the subscriber records [page674] does not operate to attenuate the seriousness of the violation, especially in relation to Sheikh, whose number had been obtained without a warrant.

[150] The residential searches involve the appellants' homes, where they have a heightened expectation of privacy, thus rendering more serious the impact on their Charter-protected interests.

[151] For the respondent, Mr. Bernstein submits that Sheikh had no standing to challenge the tower dump warrants since his calls were not included. In any case, authorities already had his phone number on Malik's records or could easily have obtained it by a reverse look-up.

[152] The respondent takes the position that the breach associated with the residential search is aptly characterized as "technical" and, at all events, was attenuated by an unassailable finding of good faith. He acknowledges that the appellants had a heightened expectation of privacy in their homes but, even if it could be said this line of inquiry favoured exclusion, its influence was overwhelmed by the other considerations that fully justified the trial judge's decision.

The governing principles

[153] The principles that govern determination of this allegation of error have already been canvassed in connection with the ground relating to the subscriber warrants.

The principles applied

[154] It seems to me that this ground of appeal reduces to an argument over admissibility. Although the trial judge did not include the antecedent breaches in his s. 24(2) analysis, thus requiring us to redo the calculus, I am satisfied that this evidence was properly admitted.

[155] This is not a case in which the police ignored the warrant requirements. They appreciated the obvious need for a warrant and obtained one. Had the police proceeded under s. 492.2(2) to obtain an order for subscriber records based on a lower standard of reasonable suspicion, there would have been an evidentiary predicate to meet the requirements of s. 487 for the residential warrants. The seriousness of the breach is also attenuated by the finding of good faith made by the trial judge, a finding that is not contaminated by judicial error.

[156] The impact on the appellants' Charter-protected interests is more significant than was the case of the subscriber records because of the heightened expectation of privacy in the home and its precincts. That said, nothing done offended the appellants' dignity or intruded upon their bodily integrity. [page675]

[157] Societal interest in an adjudication of the case on its merits favours reception of this evidence. The evidence obtained was real and reliable. It was relevant to establish the appellants' participation in the substantive offences and of no small value on the proof of conspiracy. It was also significant in its confirmation of various aspects of the evidence of Malik, a witness whose evidence was rightly subject to a strong Vetrovec caution. Its exclusion would undermine the truth-seeking function of the trial.

[158] The evidence seized under the residential warrants was properly admitted.

Conclusion

[159] For these reasons, I would dismiss the appeals.

Appeal dismissed.

@7 Notes

Note 1: Mr. Siddiqui and Mr. Hassan were investigated, but not charged.

Note 2: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115.

Note 3: The trial judge originally ruled on the s. 24(2) motion under the R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15 framework. However, Grant was decided before the end of the trial. The trial judge provided counsel an opportunity to make submissions and redid the analysis using the Grant framework.