Court of Appeal for Ontario

Date: 20220718 Docket: C68204

Before: Trotter, Harvison Young and Thorburn JJ.A.

Between: Her Majesty the Queen, Respondent And: Kester Ellis, Appellant

Counsel: Hilary Dudding, for the appellant Bari Crackower and Amanda Webb, for the respondent

Heard: June 13, 2022

On appeal from the conviction entered on February 12, 2019 by Justice Susan Woodley of the Superior Court of Justice, sitting with a jury, with reasons on the Charter ruling at 2019 ONSC 317, dated January 18, 2019.

Reasons for Decision

Relief Sought

[1] The appellant, Kester Ellis, appeals from his conviction on a single count of possession of cocaine for the purpose of trafficking. He was arrested by police who had obtained a tracking warrant and were tracking his mobile telephone.

[2] Police searched the appellant’s car incident to arrest and found concealed cocaine. The appellant claims that:

a. The location tracking data was inadmissible such that the drug evidence should have been excluded pursuant to s. 24(2) of the Charter; and

b. The narrative evidence in the Crown’s opening was improper or unfairly prejudicial and no limiting instruction was given to the jury, rendering the trial unfair.

[3] The central issue on both grounds is the trial judge’s treatment of location tracking data evidence.

[4] For the reasons that follow, the appeal is dismissed.

Background

[5] In May of 2016, the police received information from two confidential informants that a male by the name of “CJ” was attending Peterborough many times a week to traffic cocaine. Both sources advised that the male drove a rental vehicle and provided police with his cell phone number.

[6] On May 11, 2016, the police applied for a warrant to track the person carrying the cell phone with the number provided by the confidential informants. The tracking warrant and related assistance warrant was sought to grant authority to track the location and movement of the mobile phone.

[7] However, the warrant which was actually issued to police authorized a peace officer to obtain tracking data “in relation to the vehicle(s) named in this warrant.” This would be accomplished, for example, by a GPS device connected to the vehicle. It was clear from the Information to Obtain that the police had sought to obtain a warrant to authorize tracking the cell phone. It appears that neither the ITO affiant nor the issuing justice caught the drafting error which sought the warrant to track a vehicle rather than the mobile phone. The mobile phone number, along with the name CJ, was the only specific identifying information known to the police about the person regularly going to Peterborough to traffic drugs.

[8] On May 12, relying on that warrant, the police tracked the cell phone to a vehicle and found that it was travelling east and “pinging” in the location of Port Hope and Cobourg. Police spotted a male driving a vehicle whom police believed matched the description of “CJ”. The appellant was the only occupant of the vehicle. When the vehicle was stopped, the occupant fled but was quickly arrested.

[9] When the vehicle was searched, police found 359 grams of cocaine. Police later determined that the cell phone they had been tracking belonged to the appellant.

[10] The appellant brought an application alleging that the authorization and issuance of the tracking warrant violated his rights under s. 8 of the Canadian Charter of Rights and Freedoms. The appellant argued that the warrant was facially invalid as it authorized a peace officer to obtain tracking data “in relation to the vehicle(s) named in this warrant” rather than tracking the location of the cell phone. The Crown conceded a s. 8 Charter breach resulting from this facial error. The Crown took the position however that the evidence should be admitted under section 24(2) of the Charter.

[11] The application judge held that the facial error rendered the warrant invalid and therefore constituted a breach of the appellant’s section 8 Charter rights.

[12] However, she held that (a) the drafting error by the issuing justice (which had not been noticed by the affiant, issuing justice, or counsel for the applicant until she was making submissions) was unintentional, inadvertent and therefore not serious; (b) there was sufficient reliable information in the Information to Obtain that the tracking warrant could have issued “but for” the unintentional drafting error; (c) the impact of the infringement of the applicant’s privacy rights under s. 8 of the Charter was minimal because of his low privacy interest in his geographical location; and (d) excluding the drug evidence would be contrary to the public interest. She therefore concluded that the exclusion of the evidence, rather than its admission, would bring the administration of justice into disrepute.

[13] Thereafter, the Crown delivered a brief opening statement in which the Crown said that police began investigating an unknown male believed to be a drug trafficker involved in the drug trade in Peterborough, police tracked a phone and “relayed that” to the appellant, and police located the appellant entering Peterborough in a motor vehicle.

[14] The appellant brought an application for a mistrial arguing that the Crown’s opening constituted inadmissible hearsay that was highly prejudicial.

[15] The trial judge dismissed the appellant’s application for a mistrial, holding that the disputed section was “an overview of the narrative of the Crown’s case” that was not “objectionable or inadmissible” and that the Crown committed no error that required a limiting instruction.

Analysis of the Trial Judge’s Rulings

Whether the evidence of cellphone location tracking have been excluded under s. 24(2) of the Charter as a breach of privacy

[16] The appellant’s first ground of appeal is that the evidence of cell phone location tracking should have been excluded, because it was obtained in violation of his s. 8 privacy rights and its admission brought the administration of justice into disrepute pursuant to s. 24(2) of the Charter.

[17] In deciding whether to admit evidence obtained by a Charter breach, the court must consider the three following factors: (1) the seriousness of the Charter‑breaching state conduct, (2) the impact of the breach on the Charter-protected interests of the accused, and (3) society’s interest in adjudication of the case on its merits: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.

[18] When a judge has considered the proper factors, the s. 24(2) Charter analysis is entitled to considerable deference on appeal: Grant, at para. 86.

[19] On the evidence it is clear that,

a. While the warrant was technically deficient, police acted on reasonable and probable grounds that were set out in the Information to Obtain;

b. A tracking warrant for the cell phone would have issued but for the unintentional drafting error in the Information to Obtain;

c. There was no intention to mislead the issuing justice; rather, the request for a warrant for the location of the vehicle rather than the cell phone in the vehicle was an inadvertent error;

d. The trial judge recognized that there is a privacy interest in a cell phone but noted that: “The search of the mobile telephone did not include informational searches and was limited to tracking the location of the mobile phone in order to track the movements of telephone user.” The only information that was sought or obtained was the location of the cell phone itself. This was the very same information that would have been obtained by tracking the vehicle, that is, locating and seeing the movement of the vehicle. While cell phones are repositories for a great deal of personal information, in this case, no visual or audio record of the contents of the cell phone were sought or obtained. As such, the privacy interest was minimal; and

e. The tracking of the cell phone was for a very brief period while the vehicle in which the cell phone was found was on the highway.

[20] The search of appellant’s car following his arrest is premised on the warrant and had the warrant been valid, so would the search incident to arrest.

[21] For these reasons, we see no error in the trial judge’s determination that the warrant for the cell phone could have issued, police conduct did not affect trial fairness, and in these circumstances, there was a societal interest in a determination of this drug trafficking charge on the merits, such that exclusion of the drug evidence would bring the administration of justice into disrepute.

[22] We therefore dismiss this ground of appeal.

Did the trial judge err in permitting the Crown to adduce investigative hearsay in the Crown Opening?

[23] In his opening remarks to the jury, the Crown told the jury that the police were investigating an unknown male whom they believed to be a drug trafficker in Peterborough. The Crown then said that police tracked a cell phone and “relayed it” to the appellant, finding him entering the city of Peterborough.

[24] The appellant submits that the trial judge erred in permitting the Crown opening to proceed without limiting instruction, because both the results of the cell phone tracking and the comments that the person who owned the phone was a drug trafficker were inadmissible hearsay and thus, improper.

[25] We disagree.

[26] Narrative evidence that is necessary to understand the sequence of events surrounding an alleged offence and is not tendered for the truth of its contents is permitted: R. v. Camara, 2021 ONCA 79, 400 C.C.C. (3d) 490, at para. 55.

[27] This was not hearsay or opinion evidence: it was narrative evidence that was neither improper nor unfairly prejudicial. The Crown was simply outlining the evidence that would be adduced (and was adduced) at trial so that the jury would understand the sequence of events that would be unfolded.

[28] The Crown drew no explicit link between the investigation and the appellant’s phone number. The narrative evidence simply outlined that police were engaged in a drug trafficking investigation, were tracking a cell phone, and at some point, they focussed on the appellant. The Crown never adduced evidence that the appellant was the subject of the tip or that he was found with the cell phone belonging to the drug trafficker.

[29] On the contrary, it was the appellant’s trial counsel who attempted to establish that he was not the subject of the confidential informant information.

[30] Moreover, the appellant’s trial counsel did not ask for a limiting instruction and, in any event, the jury was repeatedly told that counsel were not presenting evidence in their openings, including minutes before the impugned statement.

[31] For these reasons, the Crown’s opening statement occasioned no irregularity requiring a mistrial or a limiting instruction as it did not prejudice the appellant’s defence.

[32] The appeal is therefore dismissed.

“Gary Trotter J.A.”

“A. Harvison Young J.A.”

“J.A. Thorburn J.A.”