Court of Appeal for Ontario

Date: 2018-04-19

Docket: C62190

Judges: Doherty, Rouleau and Miller JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Philip Boutros Appellant

Counsel

For the Appellant: Scott C. Hutchison and Ben Rogers

For the Respondent: R.W. Hubbard

Hearing and Decision

Heard: March 19, 2018

On appeal from: The convictions entered by Justice Steven Rogin of the Superior Court of Justice, dated January 25, 2016.

Decision

Doherty J.A.:

I. Overview

[1] The appellant was convicted of several offences arising out of a home invasion robbery in Leamington, Ontario. He appeals his convictions only.

[2] The Crown alleged that the appellant was the "getaway" driver in the robbery. The Crown relied on the evidence of:

• Jason Raffoul, who had pleaded guilty to the robbery and testified for the Crown;
• Joseph Rezkalla, a friend of the appellant's who testified about certain statements made by the appellant after the robbery implicating the appellant in the robbery; and
• text messages between the appellant and others alleged to be involved in the robbery. The communications took place before and after the robbery.

[3] The appellant did not testify.

[4] On appeal, the appellant argues that the trial judge erred in admitting the text messages. He claims that they were obtained in a manner that infringed his Charter rights and should have been excluded under s. 24(2) of the Charter.

[5] The appellant also argues that the trial judge erred in relying on "small pieces" of Mr. Rezkalla's evidence that incriminated the appellant. The appellant contends that the trial judge provided no explanation for accepting those parts of his testimony in the face of the trial judge's very strong finding that Rezkalla was a liar whose statement to the police and testimony could not be believed. The appellant submits that the trial judge's comments about Rezkalla's credibility caused counsel to refrain from any further cross-examination of Rezkalla.

[6] I would dismiss the appeal. Although I agree that the trial judge failed to conduct a proper s. 24(2) analysis of the admissibility of the text messages, I am satisfied that on a proper analysis, the evidence was admissible. I am also satisfied that the trial judge was entitled to accept those parts of Mr. Rezkalla's evidence that implicated the appellant and use that evidence to support the evidence of the accomplice, Jason Raffoul. He made no reversible error in doing so.

II. Should the Text Messages Have Been Excluded?

(i) The Trial Rulings

[7] The trial judge made two Charter rulings. In the first, he held, relying on Telus Communications Company v. The Queen, 2013 SCC 16, [2013] 2 S.C.R. 3, that the police could not lawfully obtain copies of text messages from the service provider, using a production order issued under s. 487.014(1) of the Criminal Code. The trial judge concluded that to obtain the texts the police were required to obtain an authorization to intercept private communications under Part VI of the Criminal Code. He further held, that in the absence of a proper judicial order, the seizure of the text messages violated the appellant's s. 8 rights. The trial judge went on, however, to hold that the evidence should be admitted under s. 24(2).

[8] Subsequent to the trial, the Supreme Court of Canada, in R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at paras. 56-81, held that text messages stored by a service provider, like those in issue in this case, could be obtained under the authority of a production order. The appellant no longer argues that the police violated his rights under s. 8 of the Charter by using a production order to obtain copies of the texts. The appellant also accepts, for the purposes of the appeal, that the information sworn by the officer ("ITO") to obtain the production order contained sufficient grounds upon which the order could be granted.

[9] The trial judge's second Charter ruling came about as a result of the release of the decision in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, during the trial. Prior to Spencer, it was broadly accepted that police officers could obtain subscriber information (name and address) from service providers without judicial authorization: e.g. see R. v. Hutchings (1996), 111 C.C.C. (3d) 215, [1996] B.C.J. No. 3060, at para. 25, (C.A.), leave to appeal to SCC refused, [1997] S.C.C.A. No. 21, 44 C.R.R. (2d) 188. In this case, the police had obtained subscriber information pertaining to a cellphone seized from the appellant without judicial authorization. The appellant had not challenged that conduct in his initial Charter application. Spencer held, however, that judicial authorization was needed at least as far as subscriber information in respect of IP addresses was concerned. In light of that development, the appellant argued that the police had violated his rights when they obtained subscriber information pertaining to the cellphone without first obtaining judicial authorization.

[10] In his second ruling (2015 ONSC 6570), the trial judge held that Spencer applied to the subscriber information sought by the police. He concluded that the police had breached the appellant's s. 8 rights when they obtained subscriber information for the cellphone seized from the appellant from the service provider, Telus Communications Company ("Telus") without judicial authorization. That information showed the subscriber to be a numbered company. Further police investigation revealed that the appellant's sister owned the numbered company.

[11] In the course of his second ruling, the trial judge also dealt with other Charter-related issues. The Crown had initially sought to introduce a statement made by the appellant after his arrest. During the voir dire, it became evident that the police had violated the appellant's s. 10(b) rights when they continued to question him without giving him an opportunity to speak to his lawyer and when they failed to facilitate contact with his lawyer upon arrival at the police station. Presumably, in light of these breaches, the Crown abandoned any attempt to adduce the appellant's statements.

[12] In his second ruling, the trial judge found that the arresting officers had fallen woefully short of their obligations to the appellant under s. 10(b) of the Charter. He also found the arresting officers' evidence less than forthright.

[13] In his second ruling, the trial judge also found that a police officer entered the appellant's cell several hours after his arrest and demanded the appellant's password for the cellphone the police had seized from him. The officer did not advise the appellant of his right to counsel, or give the appellant an opportunity to consult with counsel before complying with the demand for the password.

[14] The trial judge concluded that the failure to advise the appellant that he was entitled to speak with his lawyer before deciding whether to provide his password, breached the appellant's right under s. 10(b) of the Charter. It would appear that the trial judge further held that the officer breached the appellant's s. 8 rights when he used the password to access the phone and look at the call logs.

[15] Despite finding Charter violations, first, when the appellant was arrested, second, when he arrived at the police station, third, when he was in the cell and fourth, when Telus provided subscriber information relating to the cellphone, the trial judge said, at para. 53:

As I have found no Charter breach with respect to the issuance of the production orders, I need not enter into a s. 24(2) analysis.

[16] As I understand the trial judge's ruling, he was satisfied that the production order was properly granted, in the sense that there were ample grounds to make the order, apart entirely from any constitutionally tainted evidence. As the production order was lawfully granted, and the execution of the production order led directly to the police obtaining the text messages, any prior Charter breaches did not engage s. 24(2) of the Charter.

(ii) Was Section 24(2) of the Charter Engaged?

[17] Section 24(2) governs the admissibility of evidence "obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter". The appellant submits that the trial judge unduly restricted s. 24(2) by considering only the constitutionality of the judicial order that led directly to the police obtaining the text messages. Counsel submits that the authorities require a much broader approach to the reach of s. 24(2). Evidence is "obtained in a manner that infringed or denied" a constitutional right if there is a connection between the breach and the impugned evidence. The connection may be temporal, contextual, causal or some combination of the three: see R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 50-56; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21. Counsel argues that all of the Charter breaches outlined above were sufficiently connected temporally, contextually, or causally to the obtaining of the text messages to trigger the exclusionary rule in s. 24(2).

[18] The appellant further contends that because of the narrow view the trial judge took of the application of s. 24(2), he never considered the cumulative effect of the breaches in deciding whether the admission of the text messages would bring the administration of justice into disrepute: see R. v. Chaisson, 2006 SCC 11, [2006] 1 S.C.R. 415.

[19] I agree with the appellant that evidence obtained pursuant to a lawful production order, or search warrant, may still be obtained "in a manner" that infringed a Charter right.

[20] R. v. Grant, [1993] 3 S.C.R. 223 is directly on point. In Grant, the police conducted two perimeter searches of the accused's property. They subsequently obtained and executed a search warrant for the property. The court determined that the perimeter searches were unconstitutional, but the search made under the authority of the warrant was valid as there were adequate grounds to justify the issuing of the warrant, apart from the information acquired during the unconstitutional perimeter searches. The court then turned to whether the unconstitutional perimeter searches were sufficient to trigger s. 24(2) of the Charter, even though the evidence had been seized pursuant to a valid search warrant. The court said, at p. 254:

However, this does not eliminate the possibility that the entire search process was tainted by the warrantless perimeter searches which violated s. 8, so the possibility of excluding that evidence under s. 24(2) of the Charter must be considered.

[21] In holding that the unconstitutional prior perimeter searches did result in the evidence being obtained in a manner which infringed the Charter, despite the valid warrant, the court said, at p. 255:

In the case at bar, there is a sufficient temporal connection between the warrantless perimeter searches and the evidence ultimately offered at trial by the Crown to require a determination as to whether the evidence should be excluded. The warrantless searches, while perhaps not causally linked to the evidence tendered, were nevertheless an integral component in a series of investigative tactics which led to the unearthing of the evidence in question. It is unrealistic to view the perimeter searches as severable from the total investigatory process which culminated in discovery of the impugned evidence. [Emphasis added.]

[22] In keeping with Grant, and other authorities, e.g. R. v. Plant, [1993] 3 S.C.R. 281, at p. 296; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 78-79, the trial judge should have determined whether any of the Charter breaches that occurred before the police obtained the text messages under the authority of the lawful production order were integral to the investigative process that ultimately led to the acquisition of the text messages by the police.

[23] The police knew that the robbery involved more than one perpetrator. They appreciated that access to the contents of the appellant's cellphone could connect them to others involved in the robbery. The efforts to access the contents of the cellphone began when the police lawfully seized the cellphone when they arrested the appellant and continued when the police officer demanded that the appellant provide his password. Those efforts culminated in the obtaining of the text messages pursuant to the production order. In my view, any constitutional violations that occurred in the course of the police efforts to "unearth" the text messages trigger the application of s. 24(2) to the admissibility of those text messages.

[24] Applying the language from Grant, I see nothing to connect the s. 10(b) violations that occurred when the appellant was arrested and when he arrived at the police station to any investigative steps that eventually led to the production of the text messages.

[25] The appellant's arrest occurred three or four days before the police applied for the production order and obtained the text messages. The officers involved in the s. 10(b) violations at the time of the appellant's arrest and arrival at the police station had nothing to do with the steps taken to obtain the production order. There is no evidence that the officer who applied for the production order was even aware of anything the appellant may have said at the time of his arrest. The ITO contains no hint that the officer relied on anything the appellant may have said, or any evidence obtained as a result of something he said, in applying for the production order. The obtaining of the text messages under the authority of the production order was unrelated to those s. 10(b) breaches. Those breaches could not precipitate an inquiry under s. 24(2) into the admissibility of the text messages. It is not enough that the s. 10(b) breaches occurred during the same investigation that yielded the text messages.

[26] In holding that the initial s. 10(b) breaches did not trigger s. 24(2), I do not suggest that those breaches are irrelevant to the admissibility of evidence found to be have been obtained in a manner that violated a Charter right. If s. 24(2) is engaged, the conduct of the police throughout their investigation and even throughout the prosecution, including the initial s. 10(b) violations, are germane to the admissibility inquiry required under s. 24(2): see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 26.

[27] Although I would hold that the s. 10(b) breaches that occurred at the time of arrest and when the appellant arrived at the police station did not engage s. 24(2), I come to the opposite conclusion in respect of the police demand that the appellant provide his password for the cellphone. The police were obligated to give the appellant an opportunity to speak to counsel before deciding whether to give the police his password. The failure to give the appellant that opportunity resulted in a breach of s. 10(b): R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 50. That breach was integral to police efforts to obtain the contents of the text messages, which were eventually produced under the production order. This s. 10(b) breach is sufficiently connected to the text messages to trigger s. 24(2).

[28] I move next to the breach of s. 8 flowing from the obtaining of the subscriber information from Telus without judicial authorization. The trial judge held that Spencer applied to the subscriber information in issue in this case. It is, however, an open question whether Spencer should apply to the obtaining of subscriber information in respect of cellphones. Some trial decisions in Ontario have held that Spencer does not necessarily apply to cellphone subscriber information: see R. v. Lattif, 2015 ONSC 1580, at paras. 6-10; R. v. Khan, 2014 ONSC 5664, at paras. 24-25, 27; R. v. Morrison, 2014 ONCJ 774, at paras. 23-26.

[29] This court did not hear detailed argument on the applicability of Spencer. Counsel for the appellant argues that Spencer's applicability to cellphone subscriber information ultimately depends on the kind of information that can be sought and obtained from the service provider using that subscriber information. I think it would be unwise for this court to pronounce on the applicability of Spencer to subscriber information pertaining to cellphones without a more detailed evidentiary record and fuller argument on the point.

[30] As I am satisfied that the evidence is admissible, even if the obtaining of the subscriber information constituted a breach of s. 8, I need not determine the applicability of Spencer to decide the outcome of this case. I will assume, for the purposes of these reasons, that the police breached the appellant's s. 8 rights when they obtained the cellphone subscriber information from Telus. That breach was also integral to the investigation that ultimately led to the text messages. The breach made s. 24(2) applicable to the admissibility of the text messages.

(iii) Should the Text Messages Have Been Excluded Under Section 24(2)?

[31] As the trial judge did not engage in a s. 24(2) analysis, it is necessary for this court to perform that task: R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, at para. 50. In doing so, the court accepts the trial judge's credibility assessments, and his factual findings, except to the extent that those findings are unreasonable or tainted by clear and palpable error.

[32] The analytical approach to s. 24(2) is set down in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (Grant (2009)). The court must consider the seriousness of the Charter-infringing state conduct, the impact of the breaches on the Charter-protected interests of the appellant, and society's interest in the adjudication of the case on its merits: Grant (2009), at para. 71. The court must also consider the cumulative effect of the breaches.

[33] In considering the seriousness of the police misconduct as it relates to the failure to advise the appellant of his right to speak to counsel before providing his cellphone password, I accept that the obligation of the police to provide that opportunity to the appellant is well-established by authorities like Sinclair. The police should have understood this obligation. I also consider this s. 10(b) breach in the context of the earlier serious breaches of s. 10(b). At the time of the appellant's arrest and in the hours following his arrest, the officers exhibited little, if any, concern or respect for the appellant's s. 10(b) rights. The police breach of the appellant's s. 10(b) rights when they demanded that he provide his password falls toward the more serious end of the spectrum of police misconduct and tends to favour exclusion of the text messages.

[34] The characterization of the police misconduct as it relates to their accessing of the contents of the cellphone is more difficult. As observed in R. v. Fearon, 2014 SCC 73, [2014] 3 S.C.R. 621, at paras. 1-2, the power of the police to examine the contents of a cellphone in the possession of a person at the time of a lawful arrest was the subject of widely-differing judicial opinions prior to Fearon. This arrest occurred well before Fearon. It is also unclear on this record exactly what the officer looked at on the cellphone. It would appear that he examined call logs for some unspecified time period.

[35] In light of the legal uncertainty existing at the time, I do not characterize the police accessing of the contents of the cellphone to examine the call logs as serious misconduct. Nor can it be characterized as significantly intrusive.

[36] Moving to the "Spencer" breach, I am satisfied that the police acted reasonably in requesting the information from Telus without first obtaining a judicial authorization. On the law as it stood, the police were entitled to proceed on the basis that the information could be made available directly from Telus: Spencer, at para. 77. Indeed, even now, I think there is a legitimate question as to whether judicial authorization is required. The officer who requested the information from Telus acted in good faith and on a reasonable view of the law as it stood. The police conduct in respect of the s. 8 breaches does not support exclusion.

[37] Turning from the police conduct to the impact of the breaches on the appellant's constitutional rights, the appellant argues that the breaches led to the "wholesale capture of intimate details of his life". Presumably, the appellant is referring to the contents of the text messages. He argues that the very significant impact on his privacy rights strongly favours the exclusion of the evidence.

[38] I disagree that the breaches which triggered s. 24(2) led to the acquisition of the text messages. On the trial judge's unchallenged finding, the text messages were produced pursuant to a production order that was properly issued on the information contained in the ITO. That information supported issuing the production order, even after the constitutionally-tainted information was removed. While causation is not a prerequisite to a determination that evidence was obtained by a violation of a Charter right for the purposes of s. 24(2), in cases involving s. 8 infringements, the interference with an accused's privacy rights will necessarily diminish if the immediate cause of the state intrusion into that privacy is a lawfully issued warrant or production order: Plant, at pp. 300-301.

[39] The police would have lawfully acquired the text messages had none of the breaches occurred. The author of the ITO had no connection to the breaches, and was unaware that the appellant had been required to produce his password. The police had lawfully seized the cellphone from the appellant and they knew the name of the service provider, which appeared on the phone. The police had a phone number for the appellant. They could have readily connected that phone number to the cellphone without any information from the appellant. There was also enough evidence, apart from the password or anything the officer might have seen on the appellant's cellphone, to justify the issuance of the production order. The appellant's privacy rights were significantly, albeit lawfully, affected by the production order. The negative impact on the appellant's privacy rights was not meaningfully increased by virtue of the Charter breaches: Fearon, at para. 96.

[40] The assessment of the impact of the Charter breaches on the appellant's Charter-protected interests is mixed. The breaches had little, if any, effect on the appellant's privacy interests. They did, however, have a negative impact on the right protected by s. 10(b). By failing to give the appellant a proper s. 10(b) caution, the police effectively denied him the right to make an informed decision as to whether to provide his password and effectively compelled him to cooperate with them. The denial of this right is important, particularly in the context of a fast-flowing investigation. The negative impact in this case is, however, somewhat mitigated by the very limited nature of the demand made by the police officer. He requested only the password, something which in the end had no real effect on the course of the investigation.

[41] I would describe the net impact of the Charter breaches on the appellant's Charter-protected rights as relatively minor. This consideration weighs, although not heavily, in favour of excluding the evidence.

[42] The third factor identified in Grant (2009), society's interest in an adjudication of the charges on their merits, always favours admission to some extent. The force of that factor will vary depending on the circumstances. If the impugned evidence is very reliable and central to the Crown's case, society's interest in an adjudication on the merits will often strongly favour admissibility: Grant (2009), at paras. 82, 83; R. v. McGuffie, 2015 ONCA 365, 131 O.R. (3d) 643, at para. 62.

[43] The text messages are clearly reliable evidence. They are also important to the Crown's case for two reasons. First, their content is potentially significant and incriminatory. Second, the text messages provide direct and reliable evidence of conversations between the appellant and the accomplice. Without the text messages, the trier of fact would be left to assess the case solely on the accomplice's recollection of the relevant communications. There were serious concerns about the accomplice's credibility. The admission of the text messages, an undeniably accurate account of the communications, was much more likely to serve the proper administration of justice, than would the accomplice's evidence standing on its own: R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535, at para. 86. In my view, society's interest in an adjudication of the charges on the merits pushes strongly in favour of admitting the evidence.

[44] In summary, I would characterize the police misconduct in failing to give the appellant an opportunity to speak to his lawyer before providing his password as a serious breach of s. 10(b) aggravated by the police disregard for the appellant's s. 10(b) rights earlier in the process. I would characterize the police misconduct in examining some of the contents of the phone and obtaining the subscriber information as not serious and understandable, given the state of the law as it existed at the time. The police breaches of s. 8 cannot be described as wilful or even negligent.

[45] In my view, the breach of the appellant's s. 10(b) right when the police required him to provide his password had a meaningful negative impact on the appellant's right to choose whether to cooperate with the police and his right to the assistance of counsel. The breaches of s. 8 had virtually no meaningful effect on the appellant's privacy rights in the circumstances of this case.

[46] Bearing in mind that society's interest in a trial on the merits strongly favours admission in this case, I am satisfied that the sum effect of the seriousness of the police Charter-infringing conduct, and the negative impact of the breaches on the appellant's Charter-protected interests do not sufficiently favour exclusion of the evidence to overcome society's interest in a trial on the merits: McGuffie, at paras. 62-63. In my view, having considered the three inquiries dictated by Grant (2009), and bearing in mind that the effect of those inquiries must be balanced and considered as a whole, I am not satisfied that the appellant has demonstrated that the admission of the text messages would bring the administration of justice into disrepute: Grant (2009), paras. 67-71.

III. The Trial Judge's Treatment of the Evidence of Mr. Rezkalla

[47] Mr. Rezkalla is a good friend of the appellant's. The police knew from reviewing the text messages produced by Telus that the appellant and Mr. Rezkalla had been in communication after the robbery. The police interviewed Mr. Rezkalla. In his statement, he indicated that the appellant admitted he was involved in the robbery as the driver.

[48] Mr. Rezkalla was called for the Crown at trial. He recanted his statement, denying that he could remember what the appellant may have told him. The trial judge allowed the Crown to cross-examine Mr. Rezkalla. Mr. Rezkalla remained firm in his recantation, although in cross-examination by the Crown he did acknowledge that the appellant made certain comments which implicated the appellant in the robbery at least indirectly. The details of those comments are unimportant for the purposes of these reasons.

[49] After the Crown had cross-examined Mr. Rezkalla, the Crown moved to have his statement to the police admitted at trial for the truth of its contents under the principled exception to the hearsay rule. The trial judge declined to admit the statement, holding that it did not satisfy the threshold reliability requirement for admissibility.

[50] In the course of the ruling, the trial judge observed that Mr. Rezkalla was lying throughout the interview with the police and saying "anything he felt would keep him from being charged or further his motive for assisting Mr. Boutros". In his reasons for finding Mr. Rezkalla's statement unreliable, the trial judge expressly indicated that Mr. Rezkalla's desire to help the appellant was a powerful motive for Rezkalla to lie.

[51] In his reasons for judgment, the trial judge repeated his view that Mr. Rezkalla was a liar who had lied to the police in his statement and who had lied at trial in his evidence. According to the trial judge:

He [Rezkalla] lied to the police and lied at the trial to exculpate himself first, and once he was not charged, attempted to exculpate Mr. Boutros.

[52] The trial judge went on in his reasons to indicate that Mr. Rezkalla did give evidence, when pressed by the Crown on cross-examination, of statements made to him by the appellant. Some of these statements connected the appellant to the proceeds of the robbery and one amounted to an admission of involvement in the robbery. The trial judge accepted these parts of Mr. Rezkalla's evidence as truthful. He found the statements to be confirmatory of the evidence given by the accomplice, Mr. Raffoul.

[53] The appellant submits that the trial judge offers no explanation for choosing to accept these few answers given by Mr. Rezkalla in what was otherwise, according to the trial judge, a litany of lies told by Mr. Rezkalla. I think it is crystal clear why the trial judge believed these very few parts of Mr. Rezkalla's evidence. Given that Mr. Rezkalla was doing all he could in his evidence to exculpate the appellant, anything he said that incriminated the appellant could reasonably be viewed by the trier as truthful.

[54] Nor, in my view, could the trial judge's comments when he refused to admit Mr. Rezkalla's statement for the truth of its contents be seen as misleading counsel for the appellant into the belief that nothing said by Mr. Rezkalla would carry any weight with the trial judge. The trial judge made it clear in refusing to admit the statement that Mr. Rezkalla's dishonesty was motivated, in part, by a strong desire to protect the appellant. His reasons lay bare the very line of reasoning ultimately used by the trial judge in assessing what parts, if any, of Mr. Rezkalla's evidence he could accept. The approach taken to Mr. Rezkalla's evidence by the trial judge in his reasons was presaged by the trial judge's reasons for refusing to admit Mr. Rezkalla's statement for the truth of its contents.

[55] The trial judge's acceptance of parts of Mr. Rezkalla's evidence was neither illogical, nor inconsistent with his finding that Mr. Rezkalla had lied throughout his evidence. The distinction drawn by the trial judge flowed logically from the motive he identified for Mr. Rezkalla's dishonest statements to the police and his dishonest testimony at trial. I would not interfere with the trial judge's assessment of Mr. Rezkalla's evidence.

IV. Conclusion

[56] I would dismiss the appeal and affirm the convictions.

Released: April 19, 2018

"Doherty J.A."

"I agree Paul Rouleau J.A."

"I agree B.W. Miller J.A."