Court of Appeal for Ontario

Date: April 23, 2019

Docket: C62785

Judges: Simmons, Lauwers and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Patrece Lall Appellant

Counsel

For the Appellant: Carlos Rippell

For the Respondent: Frank Au

Heard: January 18, 2019

Appeal

On appeal from the convictions entered by Justice Bruce Durno of the Superior Court of Justice on June 23, 2016, arising from rulings made by Justice Nancy Mossip of the Superior Court of Justice on November 24, 2015, January 11, 2016 and March 8, 2016.

Reasons for Decision

Introduction

[1] The appellant appeals from her convictions for two counts of robbery with a firearm. The only issues raised on appeal relate to a motion judge's rulings concerning the validity of "tower dump" production orders for two cell phone towers under which cell phone records that connected the appellant to the robberies were produced.

[2] Between December 2012 and June 2013, the appellant's then boyfriend, Nakeem Johnson, was involved in a series of robberies in southern Ontario. During the robberies, Johnson pointed a firearm at store employees, threatened to kill them, and stole store merchandise and store employees' property. The Crown alleged that the appellant served as a lookout and getaway driver in relation to two robberies Johnson committed in Guelph.

[3] The appeal turns on the motion judge's ruling concerning the validity of production orders relating to Johnson's May 2013 robbery of an Aurora camera store. Police obtained production orders for cell phone records covering a 15-minute period proximate to the robbery from two nearby cell phone towers. The appellant's phone number appeared in those records and showed communications with Johnson's phone. Following further investigation, this connection enabled the police to identify the appellant as a suspected party to the two Guelph robberies.

[4] It is undisputed that the Information to Obtain the Aurora tower dump production orders contained inaccuracies. The inaccuracies pertained to the ITO affiant's description of what two camera store employees, a Mr. Asselin and a Ms. Devries, said in police video statements about cell phone use by one of the two perpetrators of the Aurora robbery.

[5] In four paragraphs of the ITO, the affiant asserted that both employees observed one of the perpetrators using a cell phone to communicate with a third person. This assertion was not accurate.

[6] In his video statement, Mr. Asselin did not say he observed either of the perpetrators communicating on a cell phone. Rather, he saw one of the perpetrators pull out a cell phone and check the time. This happened just before the perpetrator put him and Ms. Devries into a bathroom at the rear of the store. Mr. Asselin presumed the perpetrators called the driver out front to go around back, but he qualified his assumption by saying: "[t]his is speculation."

[7] In the initial part of her video statement, Ms. Devries seemed to indicate she saw one of the perpetrators use a cell phone to call a third person and tell that person to "pull around". Later in her video statement, Ms. Devries said she saw one of the perpetrators with a cell phone in his hands. The perpetrators closed the door to the bathroom where they had put her and Mr. Asselin. Then she heard "just pull around back, just pull around back." Ms. Devries said she did not know whether the perpetrator was saying that into the phone or one of the perpetrators was telling the other to send that instruction in a text message.

[8] The appellant challenged the validity of the production orders under s. 8 of the Canadian Charter of Rights and Freedoms and sought the exclusion of the resulting evidence under s. 24(2). She requested leave to cross-examine the ITO affiant and any sub-affiant, asserting that falsehoods and misleading information in the ITO were evidence of bad faith. When leave to cross-examine was denied, the appellant asserted that the inaccuracies in the ITO had to be excised and that the issuing justice could not have issued the warrant based on the remaining information.

[9] The motion judge denied the appellant's request to cross-examine, finding no "reasonable likelihood" that the proposed "cross-examination will undermine the basis of the authorization". Ultimately, the motion judge dismissed the appellant's s. 8 application because, even following excision and amplification, there remained sufficient grounds upon which the Justice of the Peace could have granted the production order.

[10] Following these rulings, the appellant pleaded not guilty to the two Guelph robberies before a different judge but did not contest a statement of facts filed by the Crown. The appellant was convicted and sentenced to a global sentence of four years and nine months' imprisonment in addition to three months' credit for presentence custody.

[11] The appellant submits that the motion judge erred in refusing her request for leave to cross-examine and ultimately in dismissing her Charter application.

[12] For the reasons that follow, we dismiss the appeal.

Background

[13] The Aurora camera store robbery occurred shortly before 9:00 p.m. on May 14, 2013 and was over in a matter of minutes.

[14] On June 13, 2013, the police obtained production orders for "all records pertaining to cellular calls" between 8:50 p.m. and 9:05 p.m. on May 14, 2013 from two Aurora cell phone towers located near the site of the robbery. The records sought included subscriber information, incoming and outgoing calls and text messages, and the time and duration of the calls.

[15] The introductory paragraphs of the ITO were entitled "Background of Investigation". At paras. 3-17 of the Background section, the police officer affiant set out a summary of the police report of the robbery, which had been prepared by another officer. The summary indicated that two camera store employees, a Mr. Asselin and a Ms. Devries, were in the store at the time of the robbery. Further, it indicated that two masked males, one with a gun and one with a knife, entered the store just as the employees were preparing to close up. The male with a knife locked the front door of the store behind him. Once the culprits had obtained a quantity of merchandise, they escorted the two employees into a washroom at the rear of the store and bound their hands with zip ties. Ms. Devries advised the men that the rear door of the store was alarmed and that the alarm would go off if they used it to exit. They ignored this comment and eventually went out the rear door. The summary included a statement, at para. 12 of the ITO, that one of the suspects used his cell phone to contact an unknown person and directed that person to come to the back door of the store:

12. As the suspects were engaged in the robbery one of the suspects used his cellular phone he contacted an unknown person and directed the unknown person to come around to the back door of the store. [Emphasis added.]

[16] At para. 18 of the Background section, the affiant stated that the store employees were transported to a police station where they each provided a video statement. The affiant stated she had reviewed both statements. At para. 19 of the ITO, still in the Background section, the affiant asserted that, in their statements, both store employees mentioned observing one of the culprits speaking on a cell phone:

19. DEVRIES and ASSELIN both mention in their statements that they observed the suspect with a gun on his phone speaking to an unknown person instructing to come around to the back door. [Emphasis added.]

[17] The ITO affiant set out her grounds to believe that the records to be seized would afford evidence of the robbery at paras. 27-34 of the ITO. In those paragraphs, the affiant explained that as a result of her investigative experience she was aware that people involved in crimes commonly use cell phones to communicate during the planning, execution, and escape stages of a crime. She asserted that both witnesses mentioned in their video statements that one of the culprits had used a cell phone to communicate with an unknown person. The affiant also asserted that obtaining cell phone records, including subscriber information, from cell phone towers in the vicinity of the robbery proximate to the time of the robbery could assist the police in identifying suspects.

28. Both victims in this case, Christine DEVRIES and Derrick ASSELIN in their video statements told police that they observed suspect #1 using his cellular phone and communicating with an unknown third party who is believed to have been in the getaway vehicle.

29. The evidence – being the data transmissions from the area towers – is relevant to the offence because it is known that suspect #1 was observed by both victims (DEVRIES and ASSELIN) to have used his cellular phone while inside the Blacks store to communicate with an unknown person told to "Come around to the back door"…

30. Both victims of the robbery provided police with video statements. Both DEVRIES and ASSELIN stated to police that they observed suspect #1 on his cellular phone communicating with an unknown person and instructing that person to pull around to the back door. [Emphasis added.]

The Motion Judge's Reasons

(i) Denying Leave to Cross-Examine

[18] At the conclusion of the argument concerning leave to cross-examine, the motion judge gave brief oral reasons for denying leave. She confirmed and supplemented those reasons in her written reasons on the s. 8 motion.

[19] Concerning the request for leave to cross-examine, the motion judge said the decision is discretionary, and the test is "quite a rigorous one to meet." In that regard, she noted that the "focus of the cross-examination is limited to questions directed to establish that there was no basis upon which the warrant could have been granted" and "[t]hat too is a well-established and narrow test."

[20] In the motion judge's view, cross-examination would confirm that the ITO was "sloppy" and "inaccurate" in asserting that "both of the witnesses observed one of the culprits speaking on his cell phone to an unknown person, instructing him to come around to the back of the store." However, she rejected a defence submission that the inaccuracies were the result of a deliberate attempt to satisfy the need for evidence of cell phone use to justify a production order.

[21] Based on a consideration of the ITO and both video statements as a whole, the motion judge said she did not think that the "inaccuracies provide[d] prima facie evidence of bad faith, or deliberate misleading by the affiant or sub-affiant … which finding would likely open the door for the defence to cross-examine the affiant on the inaccuracies." The motion judge concluded her reasons on this issue as follows:

Cross-examination would reveal the admitted inaccuracies. With respect to Mr. Asselin, it may reveal [the affiant] overstated the evidence with respect to what Mr. Asselin said. But I disagree with defence counsel that the ITO discloses a prima facie case for bad faith, or deliberate misleading by the officer.

… The focus of the leave application is whether there is a reasonable likelihood the cross-examination will undermine the basis of the authorization, and my answer to that question is there is no such reasonable likelihood.

All of the evidence the defence needs to make the argument with respect to the legal validity of the production order for the tower dump data is in his hands. [Emphasis added.]

(ii) Dismissing the s. 8 Motion

[22] As for the s. 8 motion, the motion judge was satisfied that after excising erroneous information in the ITO and amplifying it to clarify that both witnesses merely observed one of the perpetrators with a cell phone and that Ms. Devries heard a transmission of either a call or a text to pull around back, there was evidence based upon which a Justice of the Peace "could find that a cell phone transmission of some kind was made at the time of the robbery." While acknowledging that the ITO included inaccuracies about Mr. Asselin observing cell phone use and omitted Ms. Devries' clarifying comments about not knowing whether there was a call or a text, the motion judge concluded that these errors did not rise to the level of the type of lie or misrepresentation present in R. v. Morelli.

Discussion

(i) Did the Motion Judge Err in Denying Leave to Cross-Examine the Affiant and Sub-Affiant?

[23] The appellant argues that the motion judge applied the wrong test in denying leave to cross-examine the affiant and sub-affiant of the ITO. She submits that the motion judge made two discrete but related errors in setting out the test for obtaining leave to cross-examine. These errors, in combination, led the motion judge to wrongly conclude that cross-examination was unnecessary and that the appellant had all she required to argue her s. 8 application.

[24] First, the appellant points to the motion judge's statement in her ruling that the test for obtaining leave to cross-examine the affiant of an ITO "is quite a rigorous one to meet." The appellant asserts that, in the face of the Supreme Court of Canada's description of the test in R. v. Pires; R. v. Lising, the motion judge's characterization of the test is clearly wrong. In Pires, at para. 40, the Supreme Court confirmed that the test is neither "strict" nor "onerous"; all that is required is a showing of a "reasonable likelihood that [cross-examination] will assist the court to determine a material issue".

[25] Second, the appellant argues that the motion judge erred in requiring "prima facie evidence of bad faith or deliberate misleading by the affiant or sub-affiant" in order to support a request for leave to cross-examine. The Supreme Court of Canada rejected such a strict requirement in R. v. Garofoli, noting, at p. 1464, that cross-examination is unnecessary where a prima facie case of bad faith is made out without it.

[26] We do not accept these submissions. Read in context, the motion judge's statement that the test for obtaining leave to cross-examine is "quite a rigorous one to meet" was no more than a reference to the fact that the permissible scope of cross-examining the affiant of an ITO is narrow.

[27] To obtain leave to cross-examine the affiant of an ITO, it is necessary to demonstrate that the proposed questions will be relevant to the determination of whether there was a basis upon which the warrant could have issued. As the motion judge correctly noted, the "focus of the cross-examination is limited to questions directed to establish that there was no basis upon which the warrant could have been granted." See Garofoli, at p. 1465.

[28] The motion judge went on to quote from para. 41 of Pires, where the Supreme Court observed that demonstrating false information in an ITO is unlikely to be useful unless it can support an inference the affiant knew or ought to have known the information was false:

[C]ross-examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false. … At this stage, a reasonable belief in the existence of the requisite statutory grounds will suffice for the granting of an authorization. Upon further investigation, the grounds relied upon in support of the authorization may prove to be false. That fact does not retroactively invalidate what was an otherwise valid authorization. [Emphasis added.]

[29] From the appellant's perspective the nature of the inaccuracies in the ITO demonstrated bad faith: no reasonable person could have watched the videotaped statements and made the errors that were present. Contrary to the statements in the ITO, neither witness observed either perpetrator use a cell phone to communicate, and viewed as a whole, the video statements were not capable of supporting an inference of cell phone use. The appellant wanted leave to cross-examine so she could explore how the errors in the ITO came about.

[30] However, as the motion judge's reasons on the s. 8 application more fully demonstrate, she took a broader view of the inferences available from the videotaped statements than does the appellant and a more benign view of the inaccuracies in the ITO. The motion judge concluded, at least implicitly, that Mr. Asselin's evidence supported Ms. Devries' inference that an accomplice was alerted by a phone call or a text message to come to the back of the store. Although the ITO was not precise in setting out the two employees' evidence, in the motion judge's view, the nature of the inaccuracies did not, in all the circumstances, raise any issue of bad faith.

[31] Concerning the motion judge's use of the terminology "prima facie case", based on our review of the record, the motion judge was simply responding to the appellant's position advanced in oral argument. The motion judge ultimately decided that the nature of the inaccuracies did not raise any issue of bad faith and therefore did not support the appellant's request for leave to cross-examine.

[32] Although we consider that another judge could have reached a different conclusion concerning whether to grant leave to cross-examine, we are not satisfied that the motion judge misstated the test for granting leave or erred in its application. Her decision on this issue is entitled to deference: see Pires, at paras. 46-47.

(ii) Did the Motion Judge Err in Dismissing the Appellant's Charter Application?

[33] While acknowledging that a motion judge's assessment of whether an issuing judge could have issued a production order is entitled to deference (see e.g. R. v. Ebanks, 2009 ONCA 851, 97 OR (3d) 721, at para. 22), the appellant argues that the motion judge in this case made three errors, each of which would enable this court to set aside the motion judge's decision.

[34] The first two alleged errors are interrelated. We will address them together. First, the appellant argues that the motion judge misapprehended the store employees' evidence by concluding "there was reliable direct and circumstantial evidence, upon which a Justice of the Peace acting judicially could find that a cell phone transmission of some kind was made at the time of the robbery."

[35] The appellant argues that, although both employees saw a cell phone, neither saw one of the perpetrators use a cell phone. According to the appellant, Ms. Devries' claim that she heard a transmission of a call or a text was nothing more than speculation – a conclusion that Mr. Asselin acknowledged. The motion judge's finding that the evidence was equivocal as to whether Ms. Devries maintained her original belief that one of the perpetrators made a call or sent a text message was therefore irrelevant; either way Ms. Devries was speculating. Once the false statements about the store employees observing cell phone use were excised, there was no basis left on which the authorizing judge could have issued the production orders.

[36] Second, the appellant argues that the motion judge erred in distinguishing R. v. Morelli. The appellant asserts that, just as in Morelli, the misleading statements in, and omissions from, the ITO went to the basis for the authorization. Moreover, they left the misleading impression that the store employees observed cell phone use, when there was no evidentiary basis to support a finding of cell phone use. In any event, amplification was not available – the errors and omissions were not minor, technical errors – and, absent cross-examination, a finding of good faith was not available.

[37] We reject the appellant's argument that drawing an inference of cell phone use from the witnesses' video statements amounted to speculation. The evidence of the two employees disclosed that the perpetrators came in the front door of the store and supported the reasonable inference that the perpetrators went out the back door (because the employees heard the back door alarm). Both employees saw one of the perpetrators with a cell phone. Ms. Devries' video statement included the following excerpts:

[T]he shorter guy pulled out his cell phone. It was an L.G. and he looked like he was about to make a phone call…

Actually he – now that I'm thinking – I heard him say pull around back but I don't know if he was saying that into the phone or if it was the one guy telling the other guy to text him and say pull around back, but I would assume they would call just to get it over with. All I saw was that he had his phone in his hands … and then they closed the door and I heard just pull around back, just pull around back…

It might not have been a phone call. I didn't hear any numbers dialed now that I think about it, but he could have had it on silent.

[38] The inference that one of the perpetrators used a cell phone to communicate during the robbery was compelling on this evidence. This factor, in itself, distinguishes this case from R. v. Morelli in which the Supreme Court found that an affiant's statements that a computer technician had seen pornography on a computer and had subsequently noted that the pornography had been removed were incorrect and that a corrected ITO could not support an inference that the accused was in possession of child pornography: Morelli, at paras. 44.

[39] In this case, the motion judge corrected the ITO by excising the erroneous statements about direct observations of cell phone use and substituting the witnesses' observations of the perpetrator handling a cell phone. The motion judge also added Ms. Devries' clarification that, on reflection, what she originally believed was a cell phone call may have been a text telling a third person to pull around back. These were permissible amplifications. See R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 54-59; R. v. Plant, [1993] 3 S.C.R. 281, at pp. 298-99. The motion judge found no evidence of bad faith on the part of the police. The amplifications simply presented a more accurate picture of the evidence the affiant had in her possession when she swore the ITO. Rather than inferences made from direct observations, the amplifications were limited to the underlying evidence. Nonetheless, the amplifications gave rise to a reasonable inference of cell phone use during the robbery. Thus, there was evidence based upon which the issuing justice could have found that a cell phone transmission of some kind was made during the robbery and that the cell phone tower records would afford evidence of that crime.

[40] The appellant's third argument is that the motion judge erred in concluding that the authorizing judge could have properly balanced the intrusiveness of the state's conduct against society's interest in solving crimes. We see no merit in this argument. The motion judge correctly recognized that Ms. Devries' evidence supported the request for records of text messages as well as cell phone calls. Moreover, the reasonableness of the request could properly be assessed based on the requested time frame and the number of cell phone towers from which records were sought. As the motion judge correctly observed, in R. v. Mahmood, 2011 ONCA 693, 107 OR (3d) 641, this court held that there is a reduced expectation of privacy in the type of records sought. The motion judge pointed out that the issuing justice is presumed to know that the cell tower records produced would interfere with the privacy rights of uninvolved third parties and to have weighed the competing privacy interests with the state's interests in solving serious crimes. She found no evidence that the issuing justice balanced these interests unreasonably. We see no basis on which to interfere with the motion judge's determination.

Disposition

[41] Based on the foregoing reasons, the appeal is dismissed.

"Janet Simmons J.A."

"P. Lauwers J.A."

"G.T. Trotter J.A."

Footnote

[1] As noted at para. 61 of the motion judge's reasons, Mr. Asselin saw one of the perpetrators with a cell phone that was sufficiently operational to reveal the time. He also reported that the perpetrators went out the back door of the store, having entered through the front.