Court of Appeal for Ontario

Date: 2018-11-16

Docket: C63658

Panel: MacPherson, Hourigan and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Keith John Ritchie Appellant

Counsel:

• Joseph Wilkinson, for the appellant
• Scott Wheildon, for the respondent

Heard: November 2, 2018

On appeal from the convictions entered by Justice Terrence A. Platana of the Superior Court of Justice dated February 10, 2017, with reasons reported at 2017 ONSC 991.

MacPherson J.A.:

A. INTRODUCTION

[1] The appellant, Keith Ritchie, was convicted of the following offences: trafficking in cocaine, trafficking in marihuana, conspiracy to traffic in cocaine, conspiracy to traffic in marihuana, participating in or contributing to the activities of a criminal organization for the purpose of enhancing its ability to commit an indictable offence, and committing an indictable offence (trafficking in a controlled substance) for the benefit of or in association with a criminal organization. Based on a joint submission, the appellant received a global sentence of nine years and six months' incarceration.

[2] The principal issue on the appeal relates to the police seizure of a Blackberry owned by another accused who was alleged to be involved in the same enterprise. Communications on the Blackberry between the appellant and the other accused led to the charges against the appellant. At his trial, the appellant sought to exclude those communications on the basis that they violated his rights to be secure from unreasonable searches and seizures under s. 8 of the Charter. The trial judge ruled against him.

[3] The trial judge did not have the benefit of the decision of the Supreme Court of Canada in R. v. Marakah, 2017 SCC 59. The central issue on the appeal is whether the trial judge's ruling has been rendered incorrect by Marakah.

[4] At the conclusion of the appeal hearing, the court indicated that the appeal was allowed and a new trial was ordered, with reasons to follow. These are the reasons.

B. FACTS

(1) The parties and events

[5] The Thunder Bay Police seized John Tsekouras' Blackberry in 2011 pursuant to a search incident to arrest as part of a drug trafficking investigation. The police searched the Blackberry without warrant. The Blackberry contained coded communications that the appellant had sent to Tsekouras. The police used these communications in Informations To Obtain ("ITOs") sworn February 21 and April 10, 2012 in support of two search warrants.

[6] The first search warrant was to search credit card account information for a number referenced on the Blackberry. The data relating to the credit card revealed that the appellant had obtained it using his driver's licence and passport. The second search warrant was to search the appellant's residence.

[7] Apart from the contents of the Blackberry, there was very little information about the appellant, his involvement in the drug trafficking activities of the putative criminal organization, or his residence. The basis to believe that the appellant lived at the address searched was a one-time tip and a single incident where the appellant was observed entering the residence in the early evening.

[8] During the search of the residence, the police recovered the credit card bearing the card number referenced in the Blackberry communication between the appellant and Tsekouras.

[9] At his trial, Tsekouras tried to exclude the Blackberry evidence. The trial judge found that the police had violated his Charter s. 8 rights, but admitted the evidence under Charter s. 24(2). Tsekouras was convicted. On appeal, this court upheld the trial judge's decision: R. v. Tsekouras, 2017 ONCA 290, leave to appeal to S.C.C. refused, [2017] S.C.C.A. No. 25.

(2) Pre-trial motions

[10] At his trial, the appellant brought several pre-trial motions. Two are relevant for this appeal.

[11] The appellant sought to exclude the information obtained as a result of the search of Tsekouras' Blackberry. The trial judge dismissed the motion on the basis that the appellant lacked standing to bring it:

[36] I conclude that, on the basis of Pammett and Thompson, and the factors in Edwards, Mr. Ritchie did not have a reasonable expectation of privacy in the messages in Mr. Tsekouras' seized phone. Mr. Ritchie, therefore, has no standing to challenge the inclusion of information obtained as a result of the search of the Tsekouras phone.

[12] The appellant also sought to have the communications between himself and Tsekouras excised from the ITOs so that he could then argue that the ITOs were deficient. The trial judge dismissed this motion on the basis that the appellant lacked standing to bring it:

[53] The cases suggest to me that to have standing to seek excision of information or evidence obtained from an illegal search of someone else's phone, the accused must establish that he had an independent right to privacy in the evidence obtained as a result of that search.

[56] In this case, I have found that there was no expectation of privacy in Mr. Ritchie's messages to Mr. Tsekouras, therefore, on the basis of Edwards, no breach of his s. 8 rights to provide a remedy under s. 24(2).

[57] He has not established entitlement to seek excision of information from the ITO or search warrant.

[13] The appellant was convicted on all counts in the indictment. He appeals the convictions.

C. ISSUES

[14] The recent decision of the Supreme Court of Canada in Marakah has removed several potential issues from the appeal.

[15] First, the Crown concedes that the appellant had standing to mount a Charter s. 8 challenge to his messages found on Tsekouras' Blackberry: Marakah, at paras. 13-55.

[16] Second, the Crown concedes that the communications from Tsekouras' Blackberry were seized in violation of the appellant's s. 8 Charter-protected rights.

[17] Third, the Crown does not contest that the unlawfully obtained information about the communications between the appellant and Tsekouras must be excised from the ITOs: R. v. Garofoli, [1990] 2 S.C.R. 1421, at pp. 1452-3, and R. v. Wu, 2015 ONCA 667, at para. 38. In light of these concessions, I would frame the issues in this fashion:

1. Is the evidence obtained from Tsekouras' Blackberry admissible against the appellant by virtue of s. 24(2) of the Charter?

2. If the answer to (1) is 'No', does the curative provision in s. 686(1)(b)(iii) of the Criminal Code apply?

D. Analysis

(1) The Charter s. 24(2) issue

(a) Preliminary question

[18] Because the trial judge concluded that the appellant did not have standing to challenge that the ITOs were deficient or to seek the excision of some of the information in them, he did not reach the potential Charter s. 8 and s. 24(2) issues. Now, with the Crown concession on the s. 8 issue, the question becomes: should this court return the matter to the trial judge to determine the s. 24(2) issue or should this court determine it on the basis of the record before us?

[19] In my view, there is clear authority for an appellate court to determine a s. 24(2) issue that was not addressed at trial because the trial judge's ruling stopped with a conclusion on a standing or Charter s. 8 issue: see, for example, R. v. Spencer, 2014 SCC 43, at para. 75, and Marakah, at para. 58. The appeal record contains the entire Application Record that was before the trial judge on the two motions that are the subject of this appeal. This is sufficient to provide a foundation for this court to consider and determine the s. 24(2) issue.

(b) The merits

[20] In my view, the three lines of inquiry described in R. v. Grant, 2009 SCC 32, lead to the conclusion that the evidence obtained from Tsekouras' Blackberry about the appellant must be excluded.

(i) Seriousness of the Charter-infringing conduct

[21] In Marakah, McLachlin C.J. said this about the search of Winchester's phone which contained conversations between Winchester and Marakah, at para. 66:

The police committed a serious breach of the Charter in examining Mr. Winchester's iPhone. That this was an infringement of Mr. Winchester's s. 8 right, not Mr. Marakah's, does not detract from its seriousness. Of course, the police also breached Mr. Marakah's s. 8 right when, in their search of Mr. Winchester's iPhone, they examined the contents of the electronic conversation between the two men. This, too, lacked any reasonable pretext of lawful authority. I conclude that the conduct of police in accessing and searching the electronic conversations through Mr. Winchester's iPhone was sufficiently serious to favour the exclusion of the evidence. [Emphasis added.]

[22] In my view, what McLachlin C.J. said in the emphasized passage about the seriousness of the breach of Marakah's s. 8 right applies with equal force to the appellant. Further, due to the timing of the search, if anything, the appellant's case is stronger. In Marakah, the police searched the phone without a warrant two hours after Winchester's arrest. The court acknowledged that the police may have acted in good faith: Marakah, at para. 65. In the appellant's case, the police searched Tsekouras' phone without a warrant six months after they seized it, and obtained a warrant two months after that.

(ii) Impact on the appellant's Charter-protected interests

[23] The respondent contends that the severity of the impact of the unlawful search is reduced by the fact that the messages were recovered on Tsekouras' Blackberry, not the appellant's. The respondent also asserts that, in any event, the evidence was discoverable through constitutional means based on the fact that a warrant was eventually obtained, albeit belatedly, to search Tsekouras' Blackberry. In its factum at para. 36, the Crown says:

While the appellant may have hoped his messages would have remained private, the lack of privacy in sent messages is such a basic reality that even elementary school aged children are taught that there is an absolute loss of control in sent electronic messages. In light of this basic premise and a minimal expectation of privacy would not justify the exclusion of evidence.

[24] Once again, the Supreme Court of Canada's decision in Marakah provides a complete answer to this submission. McLachlin C.J. said, at para. 67:

The impact of the Charter-infringing conduct on Mr. Marakah's Charter-protected privacy interest was significant. Though, as LaForme J.A. acknowledged, Mr. Marakah had no independent interest in Mr. Winchester's iPhone, he nonetheless had a considerable, Charter-protected privacy interest in his and Mr. Winchester's electronic conversation, the contents of which the illegal search of Mr. Winchester's iPhone revealed. That electronic conversation revealed private information that went to Mr. Marakah's biographical core, as I have described. Mr. Marakah had a reasonable expectation that the fact of his electronic conversation with Mr. Winchester, as well as its contents, would remain private. The Charter-infringing actions of police obliterated that expectation. The impact on Mr. Marakah's Charter-protected interest was not just substantial; it was total.

[25] The appellant is in the same position as Marakah. Accordingly, the impact of the unlawful seizure of Tsekouras' Blackberry was, in McLachlin C.J.'s words, "substantial", "total" and "considerable": paras. 67 and 69.

(iii) Society's interest in the adjudication of the case on its merits

[26] It is obvious that society's interest in the adjudication of this case on its merits favours admission of the evidence relating to conversations between the appellant and Tsekouras. The criminal charges against the appellant are very serious, including trafficking in cocaine and trafficking in cocaine for the benefit of a criminal organization. The communications on Tsekouras' Blackberry were used to obtain search warrants that led to reliable and probative evidence in the prosecution of the case.

(iv) Balancing the factors

[27] Once again, the analysis in the virtually identical Marakah is controlling. Having found that two of the Grant factors favoured exclusion and one favoured admission, McLachlin balanced and concluded, at paras. 72 and 73:

As the Court recognized in Grant, at para. 84, "while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high". Though the exclusion of the evidence would eviscerate the Crown's case against Mr. Marakah on serious charges, "[i]t is…important not to allow…society's interest in adjudicating a case on its merits to trump all other considerations, particularly where…the impugned conduct was serious and worked a substantial impact on the appellant's Charter right": Paterson, at para. 56. That is this case.

On balance, I conclude that the admission of the evidence would bring the administration of justice into disrepute. It must therefore be excluded under s. 24(2) of the Charter.

[28] In my view, that is also this case. Marakah requires that the evidence be excluded.

(2) The proviso

[29] The respondent raises the issue of the potential application of the proviso in s. 686(1)(b)(iii) of the Criminal Code. However, in its brief argument in its factum it concedes that "[r]eference to the proviso is inextricably bound up with the 24(2) analysis outlined above."

[30] The respondent has not succeeded in its s. 24(2) argument. I can see no independent basis for applying the proviso. The reality is that, without the evidence of the appellant's communications with Tsekouras, the case against the appellant is weak.

E. DISPOSITION

[31] I would allow the appeal and order a new trial.

Released: November 16, 2018

"J.C. MacPherson J.A."

"I agree. C.W. Hourigan J.A."

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