Court File and Parties

Court File No.: 11-A11828 Region: Durham Ontario Court of Justice

Between:

Her Majesty the Queen Respondent

— And —

Janet Ormston Applicant

Reasons for Dismissing the s. 8 Charter Application

Before: Justice Susan C. MacLean

Heard on: May 28 and 29, 2013

Reasons for Ruling delivered on: August 7, 2013

Counsel:

• Ms. Melissa McCormick, for the Crown/Respondent
• Mr. Paul Lewin, for the Accused/Applicant

MacLean S.C., J.:

Introduction

[1] The Accused/Applicant, Janet Ormston, submits that her rights pursuant to section 8 of the Canadian Charter of Rights and Freedoms were infringed when the police searched Jeanette Nolan's cell phone (after Ms. Nolan was arrested on drug charges on April 19, 2011) and they found text messages that Ms. Ormston had sent to Ms. Nolan that day. The Crown relies on these text messages as evidence that Janet Ormston was trafficking in crack cocaine and that Jeanette Nolan purchased drugs from her that day. Janet Ormston has applied for the exclusion of those text messages from the evidence at this trial pursuant to section 24(2) of the Charter. One of the main issues is whether Ms. Ormston has a reasonable expectation of privacy in the text messages found on the cell phone of another person. A related and significant issue is whether the cell phone was in fact searched for a permissible purpose incident to the arrest of Jeanette Nolan.

[2] The evidence on this Charter Application was heard on May 28 and 29, 2013. Due to the complexity of the issues to be determined, transcripts were ordered, and written submissions were filed by both parties in July. Counsel had advised me that they estimated that an additional 1½ days would be required to complete this trial if this Application were to be denied. Out of concern to minimize any potential s. 11(b) delay, on May 29th I requested that Crown and Defence Counsel speak to the Trial Coordinator to schedule targeted dates for this trial to continue (which could be vacated if this Application was granted). Today I was informed that, pursuant to my direction, continuing trial dates on September 30th and October 1, 2013 have been scheduled.

[3] For the following Reasons, I dismiss this Application and find that the text messages are admissible in evidence at this trial. I also direct that the trial continue on the dates scheduled.

Overview of the Case

[4] Janet Ormston was arrested by the Durham Regional Police Service and charged with two counts of trafficking in cocaine, however, on the first date of trial the Crown withdrew one count that related to April 15, 2011, leaving one count of trafficking to be tried relating to April 19, 2011.

[5] Based on the decision of Justice Nordheimer in R. v. S.M., 2012 ONSC 2949, the Crown in this case conceded that Janet Ormston has standing to argue a Charter breach in relation to messages that she sent but which were found on Jeanette Nolan's cell phone which was seized incident to Ms. Nolan's arrest. Since the issue of standing was not litigated before me, this Ruling should not be considered as having determined the issue of whether the sender of text messages has standing in circumstances where the police find those messages on someone else's cell phone.

The Evidence in this Case

[6] The parties filed an Agreed Statement of Facts with the Court that is Exhibit 1 on this Application (at this point in the trial these are admitted facts for the purpose of the Charter voir dire only). It reads as follows:

An investigation began into Ms. Ormston in April 2011 when officers received information that she was trafficking cocaine in the Durham Region. The officers received this information prior to April 15, 2011. The Durham Region Drug Enforcement Unit began conducting surveillance on Ms. Ormston on April 15, 2011. They had an address that they believed was her residence. That address was 26 Salmon Way in Whitby. They believed that she was employed by GM Canada.

There were 2 days of surveillance prior to the date in question. Officers conducted surveillance on April 15, 2011. On April 19, 2011, a briefing took place in relation to the investigation into Ms. Ormston at 22:15 and ended at 22:18. Officers again set up surveillance and located her vehicle outside of GM. At 22:40, Ms. Ormston is observed attending at the vehicle, and is followed into the Whitby area, and ultimately back to 26 Salmon Way.

At 23:09 she is observed leaving the residence at 26 Salmon Way, getting into her vehicle, and she is subsequently followed through the Whitby area. She is observed attending at that Kiss'n Ride located at Mary Street, west of Garden and is ultimately followed to a parking lot in the area of 580 Mary Street. During the course of the officers' surveillance in this matter, Ms. Ormston is observed to be the only occupant in the vehicle that she is operating.

While she is in the area of 580 Mary Street, officers observe a white female exit a blue Honda, attend at Ms. Ormston's vehicle, and ultimately enters on the front passenger side of Ms. Ormston's vehicle. After a brief meeting, the parties separate and drive out of the lot. Both vehicles are followed by members of the Drug Enforcement Unit. Ms. Ormston is followed back to the 26 Salmon Way address. The driver of the Honda was followed and a traffic stop was initiated at Garden Street and Rossland Road in the Town of Whitby.

The female, later identified as Jeanette Nolan, was directed out of the vehicle, arrested for possession of a controlled substance and searched incident to arrest. A small vial with white residue was found on her person in her right jacket pocket. Ms. Nolan's vehicle and purse were also searched. Inside Ms. Nolan's purse, officers located a crack pipe and steel wool. It should be noted as well that Ms. Nolan was searched in more detail at the police station and was found to be concealing ½ a tablet of Oxycontin in her bra. A further search of the area where Ms. Nolan was directed out of the vehicle ultimately yielded 2.1 grams of crack cocaine. This substance was located by the driver's door of Ms. Nolan's vehicle, on the paved road.

A passenger was also in Ms. Nolan's vehicle at the time of the traffic stop. A male, later identified as Mark Monkman, was also arrested for possession of a controlled substance and searched incident to arrest. Officers located on his person a piece of steel wool, as well as $100.00 in cash.

Based on the arrest of Ms. Nolan, as well as other factors relating to the investigation, the Drug Enforcement Unit applied for a search warrant for 26 Salmon Way. The warrant was ultimately granted, and entry was gained in the early morning hours of April 20, 2011. While conducting the search, officers find inside the unit:

(1) $1,200.00 in the master bedroom in the top drawer of a night stand at the end of the bed;

(2) $200.00 in the master bedroom in the north dresser, top drawer;

(3) $1,795.00 in the master bedroom in the northwest dresser in the 6th of 8 drawers in a pants pocket;

(4) $1,480.00 in the master bedroom in the northwest dresser in the 6th of 8 drawers in the crotch area of a pair of pants;

(5) A green LG Cell Phone with a phone number of 289-987-4296 on the kitchen counter;

(6) A black LG Cell Phone with a phone number of 289-987-0935 on the kitchen counter;

(7) A Blue Pontiac G5 was located in the driveway, which was the vehicle Ms. Ormston had been observed in earlier in the investigation;

(8) Cheques in the name of Maurice Emil located in the master bedroom in the top drawer of the armoire;

(9) A photo of Ms. Ormston and an adult male was located in the master bedroom on top of a long dresser;

(10) Sandwich bags with one that had been ripped in the kitchen in the bottom drawer to the left of the stove;

(11) A Starfrit digital scale on the kitchen counter; and

(12) A Diamond Serious A04 digital scale in the kitchen on the counter beside the microwave.

Officers also located in the course of their search a quantity of male clothing in the master bedroom.

[7] Det. Cst. Dave Davies of the Durham Regional Police Service also testified on this Charter Application. He has been employed as a police officer since 1999 and is a member of the Drug Enforcement Unit. His duties in relation to this investigation commenced on April 19, 2011 around 22:15 hours. He was part of the surveillance team observing the activities of Janet Ormston. They believed she was trafficking in cocaine and she was their primary target. Det. Cst. Davies was eventually assigned to go with a separate surveillance team following Jeanette Nolan, who was believed to be Janet Ormston's customer. He was one of four officers who participated in a traffic stop of a blue Honda with license plate BJFV 868 and the arrest of Ms. Nolan. Det. Cst. Davies arrested the passenger, Mark Monkman at 23:39 hours while another officer arrested the driver, Jeanette Nolan. Det. Cst. Davies searched Mr. Monkman and located money in his right front pocket. In the same pocket he located white residue in a container and steel wool.

[8] At some point Det. Cst. Davies was assigned to be the exhibits officer for this investigation. At the police station officers were attending with articles found at the scene and turning them over to him. The Honda motor vehicle had also been seized. Det. Cst. Davies had personally seized from Mr. Monkman $100.00 cash, steel wool, and a container with white residue. The items seized by other officers included the crack cocaine located on the roadway by Det. Cst. Williamson, a "drug-kit" which had been located in the car, a clear cylinder with a red cap located in Ms. Nolan's jacket, and half of an "Oxy 60" Oxycontin tablet found when Jeanette Nolan was searched at the police station by a female officer. The crack cocaine weighed 2.1 grams and Det. Cst. Davies placed it in a sealed envelope to be sent to Health Canada for analysis. Continuity of the crack cocaine is conceded for this trial.

[9] At the Oshawa police station Det. Cst. Davies also received a cell phone with phone number 905-903-2916 from Det. Cst. Thomson who told him that it had been found on the driver's seat of the vehicle (which Det. Cst. Davies knew had been driven by Jeanette Nolan). Det. Cst. Davies clearly believed that it was Jeanette Nolan's cell phone. Additional admitted facts were placed before me with respect to Det. Cst. Thomson's evidence to the effect that: he was one of the officers who searched Ms. Nolan's car and he found the cell phone on the driver's seat and seized it; he did not examine the cell phone; he turned the cell phone over to Det. Cst. Davies but did not instruct him to do anything with the cell phone.

[10] Det. Cst. Davies testified that he conducted a "tertiary" search of the phone. He used the word "tertiary" several times in his evidence but later clarified that he meant a "cursory", very quick search of the phone. I am satisfied that he misspoke and does in fact understand what is meant by the word "cursory". He did not consult with any other officer before searching the cell phone. He was looking for evidence of the meeting and the drug transaction that he believed had occurred between Janet Ormston and Jeanette Nolan. The evidence before me does not disclose the time at which Det. Cst. Davies received the phone from Det. Cst. Thomson, the time at which the searched commenced or how long it took to conduct his cursory search of it. From the totality of his evidence, however, I conclude that the search was done shortly after he received the cell phone and that the search was in fact brief and cursory as he looked for the specific information described.

[11] Jeanette Nolan's cell phone was already turned on when it was provided to Det. Cst. Davies and it was neither locked nor password protected. He testified that he accessed what he was looking for on the cell phone "very easily". He went into the system part of the phone associated to a SIM card or processor inside the phone which identified the phone number for that cell phone as 905-903-2916. He did not get the name associated with that cell phone number. Det. Cst. Davies also went into the Contacts list of the cell phone and located "Janet" and the phone number 289-987-4296. Although it did not list Janet Ormston's surname he believed that this was in fact her cell phone number. The officer also went through the menu function to acquire text messages and "saw that there was evidence relating to the meeting and I obtained those text messages specifically only for the meeting. There was other messages that were in the context which I did not record because it was not relevant to our investigation…"

[12] Det. Cst. Davies was specifically looking for, and found what he believed to be text messages relating to the meeting between Janet Ormston and Jeanette Nolan that had taken place on April 19, 2011. There were other text messages interspersed with the messages exchanged between Janet Ormston and Jeanette Nolan that he read to see if they were relevant. He "discarded" them as not being involved in the investigation (he did not delete them), and did not document or record them in any way. He does not know how many other text messages he read because he did not document them. Det. Cst. Davies believed that only the messages with the name "Janet" were relevant as being connected to the meeting with Janet Ormston that day. He only read those messages commencing at 7:01 p.m. because it was more related to the time of the meeting and he did not look to see if there were any messages from Janet Ormston earlier that day. He believed that Janet Ormston had only one phone number that Jeanette Nolan knew. I accept that Det. Cst. Davies specifically ignored other unrelated text messages, did not search the cell phone for any images or photographs, and sought only to locate those text messages which related to the meeting between Janet Ormston and Jeanette Nolan.

[13] Det. Cst. Davies believed that when he searched Jeanette Nolan's cell phone contents that he had the right to do so pursuant to a search incident to the arrest of Ms. Nolan. He believed that he could do a cursory search of a cell phone that was case specific, relating to messages sent prior to a drug buy meeting that would provide a context for why they were meeting, when the meeting occurred, etc. He would look for messages that might provide evidence relating to the investigation including evidence against both the purchaser and the person selling the drugs. To me this is simply common sense, because the evidence against the purchaser would normally be the identical evidence against the seller (as messages are exchanged about the drug buy). He also believed that it was also lawful to obtain text messages specific to the police investigation that might assist in other parts of the investigation. When he searched the cell phone there was no urgency. Det. Cst. Davies knew no other officer had done it yet so thought he should search it. He never thought about obtaining a search warrant to examine the cell phone's contents.

[14] In cross-examination Det. Cst. Davies agreed that Janet Ormston was the target of the police investigation and that he had also been part of a surveillance team watching her on an earlier date. When Det. Cst. Davies was searching Ms. Nolan's cell phone he was thought that he would find evidence that could be used against both Jeanette Nolan and Janet Ormston. Det. Cst. Davies made no notes about why he searched the cell phone. He believed that the search of Jeanette Nolan's cell phone text messages would assist in the investigation against Ms. Nolan by knowing what drugs she had ordered from Janet Ormston, to confirm that she had picked up the drugs from Ms. Ormston and to provide context for the meeting. It would also help with the police investigation of the trafficking by Janet Ormston. Contrary to his earlier evidence, it is important to note that at the end of his cross-examination, Det. Cst. Davies agreed with the suggestion that when he searched Jeanette Nolan's cell phone he did it for the sole purpose of gathering evidence against Ms. Ormston. This answer is examined in greater detail commencing at paragraph 33 below.

[15] While Det. Cst. Davies completed his initial cursory search of Jeanette Nolan's cell phone shortly after receiving it, before he could make any written record of the relevant text messages, he was assigned to other important duties that had him back out on the road until 4:00 a.m. (because his unit was short-handed he had to assist with duties such as obtaining a search warrant for Janet Ormston's residence). When he returned to his next shift at 12:00 p.m., he first had to search Janet Ormston's motor vehicle at the Durham Regional Police Property Bureau in Courtice before returning to his desk. It was only at that time that he first had the opportunity to type out the text messages that he had already found the night before. It appears that he did not search for nor find any additional evidence on the cell phone at that time.

[16] Det. Cst. Davies typed the text messages exchanged between Jeanette Nolan and Janet Ormston verbatim into a Word document/chart (see Exhibit A) as he was reading the messages directly off of the cell phone (he did not capture the screen image in any other way). I have summarized the sender/receiver part of this chart to simplify it, but have reproduced the contents of the text messages verbatim:

7:01 p.m. sent from Jeanette Nolan's cell phone: I have that for u

7:03 p.m. sent from Janet Ormston's cell phone: Yahoo shit im at w2ork can I see u at 10:30 p.m.

7:23 p.m. sent from Jeanette Nolan's cell phone: We will not spend it this time hun

7:25 p.m. sent from Janet Ormston's cell phone: In Oh good thanku I will call u at 10:30 p.m.

10:03 p.m. sent from Jeanette Nolan's cell phone: How much do I owe

10:04 p.m. sent from Janet Ormston's cell phone: 120

10:04 p.m. sent from Jeanette Nolan's cell phone: k

10:21 p.m. sent from Jeanette Nolan's cell phone: make it 2 hb instead of one whole pls

10:25 p.m. sent from Janet Ormston's cell phone: k cool

11:27 p.m. sent from Jeanette Nolan's cell phone: here in visitors at back

[17] Det. Cst. Davies testified in cross-examination that he believed the permissible purposes of a search incident to arrest are "to assist in an investigation, to collect evidence, to put it in context" and that "obviously case law changes and new things come out, new practices exist and we change our ways with case law". He advised that the evidence must be evidence that "can be" used at the arrestee's trial, but that it doesn't have to be.

[18] Det. Cst. Davies has believed these to be the purposes of a search incident to arrest since he first started policing in 1999 and he is "comfortable" with his practices in this regard. Det. Cst. Davies testified that he received training on this issue at the Ontario Police College when he first became an officer, and later at Osgoode Hall when learning about search warrant drafting (which included search incident to arrest as part of the proper grounds when writing an information to obtain a search warrant). He attended drug investigation courses three or four years ago that taught him that search incident to arrest is to obtain evidence that could be used at the arrestee's trial. He has also had on-the-job training because it comes up a lot in police work. He has learned from more experienced officers and it is all "situational because every investigation is unique". He has also learned by being involved in court cases. Det. Cst. Davies has not heard of the R. v. Caslake decision which deals with search incident to arrest. He does not know if the law regarding search incident to arrest arose from caselaw or the Criminal Code.

[19] Det. Cst. Davies testified that, "when we arrest people or charge people or investigate people and lay charges against them, once we arrest them, if we find evidence relating to them or others, we will seize it and bring it before the Court as evidence". He believes that the evidence seized does not have to be evidence on the arrestee's trial.

[20] The officer also disagreed that reading text messages is like listening in on a conversation "because I'm acting in good faith and I'm doing a [cursory] search to support my investigation and I was very case specific in what I was obtaining". Det. Cst. Davies did agree eventually, however, that text messages are like a digital conversation but he continued to firmly maintain his belief that reading them is not the same as listening in on a spoken conversation. He explained that he uses the messages as investigative tools and it is very case specific.

[21] During cross-examination the officer struggled with coming to an understanding that spoken conversations and text messages are comparable in terms of being private communications. He disagreed that it's an "intrusive invasion of privacy to look at private communications contained in text messages":

Because I feel that in text messages once they're sent from one phone to another, all their rights are gone. They've gone to another phone you don't know who's the carrier of the other phone…you're only relying on two phone numbers if you're communicating with two people. You know once it's gone, it's gone, it's into another phone, you're relying that the person on the other end has that phone and sending it back and forth as a two-way conversation.

[22] It is clear from this evidence that Det. Cst. Davies believes that the reasonable expectation of privacy for the sender is diminished once a text message has been sent to another person's cell phone, because it depends on what the receiver does with it.

[23] There was no other evidence called on this Application although Jeanette Nolan did testify on the trial proper. The Applicant, Janet Ormston, elected not to testify on this voir dire. I am mindful that she is not required to testify and that the Crown bears the burden of proof on this Application because there was a warrantless search of the cell phone.

The Law with Respect to Search Incident to Arrest

[24] The Applicant argues that when searching Jeanette Nolan's cell phone, that Det. Cst. Davies was acting outside the permissible scope of search incident to arrest. It is argued that, based on his final answer in cross-examination, that the officer's sole purpose in searching the cell phone was to gather evidence against Janet Ormston rather than against the arrestee, Jeanette Nolan.

[25] To be reasonable under s. 8 of the Charter, a search must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner. A warrantless search is prima facie unreasonable, so in those circumstances the Crown has the burden of showing that the search was, on the balance of probabilities, reasonable.

[26] In Caslake, the Supreme Court of Canada clarified the law with respect to the common law power of the police to conduct a search incident to arrest. This was considered in the context of an inventory search of the accused's motor vehicle following an arrest. Search incident to arrest is an exception to the ordinary requirements for a reasonable search. The police do not need reasonable and probable grounds to conduct a search on this basis, however, they must subjectively have some reason related to the arrest for conducting the search at the time the search is carried out, and that reason must be objectively reasonable. The right to search arises from the fact of the arrest, which in itself must arise from either an arrest warrant or reasonable and probable grounds to arrest. For this type of search to be legal, the arrest must also be legal and the search must be truly incidental to that arrest. The Court discussed the objective and scope of a search incident to arrest and clarified the permissible purposes for such a search. The police must not only objectively search within the permissible scope but also turn their mind to this scope before searching.

[27] In Caslake the Court concluded that while the motor vehicle in that case could in fact have been searched incident to arrest, that since the stated purpose of the search was to inventory the contents of the motor vehicle that it fell outside the boundaries of the legitimate purposes of search incident to arrest. The evidence discovered in the motor vehicle was not, however, excluded under a s. 24(2) analysis because, applying the pre-Grant, 2009 SCC 32 factors the Court concluded that: 1) the evidence was non-conscriptive and would have no effect on the fairness of the trial; 2) the breach was not serious, there was a low expectation of privacy in the area searched, the police acted in good faith and had reasonable and probable grounds, all of which favoured admission of the evidence; and 3) since the prosecution had no case without the evidence, that the exclusion of it would have a more serious impact on the repute of the administration of justice than admitting it.

[28] Chief Justice Lamer, in writing for the majority in Caslake, at paragraphs 14 to 25 clarified the scope of search incident to arrest:

14 In Cloutier, L'Heureux-Dubé J. also recognized the potential breadth of this police power. She held that the court must balance the state's interests in law enforcement and the protection of the police against the arrested person's interest in privacy in order to determine whether a search was a reasonable and justifiable use of the police power. She then set out three important limits on the power to search incident to arrest (at p. 186):

1. This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search. They must be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives.

2. The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case for example if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions.

3. The search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.

If all three of these conditions are met, and the arrest itself is lawful, the search will be "authorized by law" for the purposes of s. 8 of the Charter. In the case at bar there is no allegation that the arrest was unlawful or that the search was abusive. Rather, the problem in this case is that the objective and scope of the search exceeded its permissible limits.

C. The Scope of Search Incident to Arrest

15 Since search incident to arrest is a common-law power, there are no readily ascertainable limits on its scope. It is therefore the courts' responsibility to set boundaries which allow the state to pursue its legitimate interests, while vigorously protecting individuals' right to privacy…

16 Scope can also refer to temporal limits on the power of search, which are at the core of the case at bar…In my opinion, the Court should be reluctant to set a strict limit on the amount of time that can elapse between the time of search and the time of arrest.

17 In my view, all of the limits on search incident to arrest are derived from the justification for the common law power itself: searches which derive their legal authority from the fact of arrest must be truly incidental to the arrest in question. The authority for the search does not arise as a result of a reduced expectation of privacy of the arrested individual. Rather, it arises out of a need for the law enforcement authorities to gain control of things or information which outweighs the individual's interest in privacy … This means, simply put, that the search is only justifiable if the purpose of the search is related to the purpose of the arrest.

19 As L'Heureux-Dubé J. stated in Cloutier, the three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee's trial. The restriction that the search must be "truly incidental" to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer's belief that this purpose will be served by the search must be a reasonable one.

20 To be clear, this is not a standard of reasonable and probable grounds, the normal threshold that must be surpassed before a search can be conducted. Here, the only requirement is that there be some reasonable basis for doing what the police officer did …The police have considerable leeway in the circumstances of an arrest which they do not have in other situations. At the same time, in keeping with the criteria in Cloutier, there must be a "valid objective" served by the search. An objective cannot be valid if it is not reasonable to pursue it in the circumstances of the arrest.

21 In my view, it would be contrary to the spirit of the Charter's s. 8 guarantee of security against unreasonable searches or seizures to allow searches incident to arrest which do not meet both the subjective and objective criteria. This Court cannot characterize a search as being incidental to an arrest when the officer is actually acting for purposes unrelated to the arrest. That is the reason for the subjective element of the test. The objective element ensures that the police officer's belief that he or she has a legitimate reason to search is reasonable in the circumstances.

22 Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested. For example, when the arrest is for traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching any further (see Belnavis, supra).

24 The temporal limits on search incident to arrest will also be derived from the same principles. There is no need to set a firm deadline on the amount of time that may elapse before the search can no longer said to be incidental to arrest….

25 In summary, searches must be authorized by law. If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a proper explanation.

[Emphasis added by the Court]

[29] The parties in this case agree that the law with respect to search incident to arrest has not changed since Caslake.

[30] In R. v. Fearon, 2013 ONCA 106, the Court refers to the decision of Justice Trafford in R. v. Polius with respect to what amounts to a "cursory" search of a cell phone incident to arrest (see paragraphs 50 to 51 of Fearon):

50 Trafford J. discussed the notion of a "cursory" inspection of an item seized as incident to arrest, at para. 41 of his reasons:

In my view, the power to SITA [i.e., search incident to arrest] includes a power to conduct a cursory inspection of an item to determine whether there is a reasonable basis to believe it may be evidence of the crime for which the arrest was made. However, any examination of an item beyond a cursory examination of it is not within the scope of the power to SITA. Using other words, the evidentiary value of the item must be reasonably apparent on its face, in the context of all of the information known by the arresting officer. Where the purpose of a SITA is to find evidence of the crime, the standard governing the manner and scope of the search is a "... reasonable prospect of securing evidence ...". See R. v. Caslake, supra, at para. 21. The police "... must be in a position to assess the circumstances of the case so as to determine whether a search meets the underlying objectives ..." of the SITA. See Cloutier v. Langlois, supra, at paras. 60-62.

[Emphasis added by the Court]

[31] In this case I must examine whether the search of the cell phone was for any of the purposes permitted by the common law doctrine of search incident to arrest and whether it was limited to a cursory search.

Was the Search of Jeanette Nolan's Cell Phone Incident to Her Arrest?

[32] As indicated earlier, the police arrested Jeanette Nolan for possession of drugs because their surveillance observations led them to believe that she had purchased them from Janet Ormston. Upon stopping the vehicle which Jeanette Nolan was driving, 2.1 grams of crack cocaine were located on the road by her driver's door. Upon search incident to arrest at the scene the police located a small vial with white residue in her jacket pocket and a crack pipe and steel wool were located in her purse and her cell phone on the driver's seat. This information was known to Det. Cst. Davies before any search of Jeanette Nolan's cell phone was conducted. At the police station ½ of an Oxycontin tablet was found on her person. It is not clear from the evidence whether Det. Cst. Davies knew this before the cell phone search. No issue has been taken with respect to the legality of Jeanette Nolan's arrest or the lawfulness of the search incident to arrest, apart from the search of her cell phone at the police station.

[33] As indicated earlier, the only issue raised by the Applicant is whether Det. Cst. Davies was searching Jeanette Nolan's cell phone for a permissible purpose as authorized pursuant to the search incident to arrest power. The Defence argues that the sole reason that the officer searched the cell phone was to look for evidence against Janet Ormston and that it was not related in any way to a search for evidence against the person under arrest, Jeanette Nolan. I do not agree with the Defence submissions on this point.

[34] I accept that Det. Cst. Davies honestly believed that he had the right to conduct a cursory search of the cell phone pursuant to a search incident to the arrest of Ms. Nolan, for text messages that might provide evidence relating to the investigation, including evidence against both of the persons whom he believed were involved with purchasing drugs (Jeanette Nolan) and selling them (Janet Ormston). He honestly believed that it was also lawful to obtain text messages specific to the police investigation that might assist in other parts of the overall investigation.

[35] Det. Cst. Davies agreed at the end of a lengthy cross-examination that went into a second day (during which the officer was obviously confused about Defence Counsel's questions at many points) that when he searched Jeanette Nolan's cell phone he did it for the "sole purpose" of gathering evidence against Ms. Ormston:

Q. Officer I'm going to suggest to you that this investigation right from the beginning, right to the very end was all about Janet Ormston? And when you search Ms. Nolan's phone, you did that for the sole purpose of gathering evidence against Ms. Ormston, just like you were instructed to do at the briefing, gather evidence against Ms. Ormston?

A. Yup.

Q. I'm correct?

A. Yup.

[36] The Defence submissions rely upon this single answer to found its argument that this was the only purpose that Det. Cst. Davies had for searching the cell phone. I find, however, that it is completely unfair to the totality of Det. Cst. Davies' evidence to view this answer in isolation. In other parts of his evidence it is clear that Det. Cst. Davies was searching Ms. Nolan's cell phone for evidence that could be used against both Jeanette Nolan and Janet Ormston. As described earlier, I accept the officer's evidence that he believed that the search of the text messages would assist in the investigation against Ms. Nolan by: 1) knowing what drugs she had ordered from Janet Ormston; 2) to confirm that she had picked up the drugs from Ms. Ormston; and 3) to provide context for the alleged drug transaction meeting that had taken place between Janet Ormston and Jeanette Nolan. It would also obviously help with the police investigation of the trafficking by Janet Ormston if they could find messages that Jeanette Nolan had bought drugs from Janet Ormston. As indicated earlier, it is simply common sense that evidence against the purchaser might also provide evidence against the seller of the same drugs. The following portions of Det. Cst. Davies' evidence are important in coming to these conclusions:

Examination-in-Chief

A. I was doing a [cursory] search of the phone 'cause it hadn't been completed. I – as part of the investigation I was looking for conversation that was related specifically with the meet and the transaction that had occurred…

Q. What was the practice in terms of searching phones that are seized as offence-related property in your unit at that time?

A. Ah we just did [cursory] searches only case specific, so if we had an incident similar to this one. If we had a meeting and we arrested the customer, we would look into the phone only specifically to the times that the meeting occurred and the times of the arrest, that's all we would record. In this case…there was actually some text messages that had been sent previously to the meeting that gives the context of…why they were meeting and when the meeting occurred and so forth.

Cross-Examination

Q. Officer you were telling us about the practice in your unit if a customer's arrested, the times of meeting and the times of arrest you might look – go into a cell phone to determine those things Did I understand you correctly?

A. Yeah.

Q. Okay and that would be I take it to try and gain information about the seller, potentially evidence that could be used against the seller?

A. Like it's related to the investigation yes, it's case specific.

Q. Right, each case is a little bit different?

A. Yes.

Q. Okay, but it's to try and potentially get some evidence against the seller who's selling – the dealer who's selling drugs?

A. As well as the purchaser as well, both.

Q. …and you thought when you searched Jeanette Nolan's phone, you would find evidence that could be used against Ms. Ormston?

A. As well as Ms. Nolan, both.

Q….so how is it that searching Ms. Nolan's phone is going to assist with the investigation of Ms. Nolan [as a purchaser]?...

A. We know what she ordered…from Ms. Ormston…from the context of the text message…

Q. …and how would that assist?

A. Because it tells us that she picked up drugs from Ms. Ormston.

Q. …how does it matter who she got the drugs from on a simple possession?

A. Because it helps…with the investigation of the trafficking as well.

Q. But on the investigation of the trafficking against Ms. Ormston?

A. As well, yes.

Q. How does it help with the investigation against Ms. Nolan…where she got the drugs from?...

A. Because it puts it in context right, like it makes a scenario, it helps with our scenario

A. It helps also in the trafficking investigation against Ms. Ormston.

[37] It is clear from these answers that one of the purposes for which Det. Cst. Davies searched Jeanette Nolan's cell phone was to find text messages providing evidence relating to the meeting during which she is alleged to have bought crack cocaine from Janet Ormston. This would be evidence against Jeanette Nolan to prove that she possessed the crack cocaine found on the road by her car.

[38] As indicated above, Det. Cst. Davies testified in cross-examination that he believed the permissible purposes of a search incident to arrest are "to assist in an investigation, to collect evidence, to put it in context" and that "obviously case law changes and new things come out, new practices exist and we change our ways with case law". He advised that the evidence must be evidence that "can be" used at the arrestee's trial, but it doesn't have to be. Det. Cst. Davies also testified that, "when we arrest people or charge people or investigate people and lay charges against them, once we arrest them, if we find evidence relating to them or others, we will seize it and bring it before the Court as evidence".

[39] It is clear from his evidence that Det. Cst. Davies requires additional training with respect to the permissible scope and limitations of search incident to arrest. He also needs to be educated about the current state of the law which equates text messages with spoken conversations in the context of privacy issues. He and other officers must continue to educate themselves about the lawful search of cell phones, as cases such as Fearon, supra, currently before the Supreme Court of Canada, are decided. While Det. Cst. Davies has a correct understanding that one ground for searching someone incident to arrest is to gather evidence against them, he was unable to articulate that there are three specific purposes for conducting a search incident to arrest:

1. To ensure the safety of the police and the public;
2. To protect evidence from destruction at the hands of the arrestee or others; and
3. To discover evidence that can be used at the arrestee's trial.

(See Caslake, supra)

[40] In some cases, instead of searching cell phones, the police might have the grounds to obtain prior judicial authorization to search the records of internet service providers for text messages sent or received by subscribers (the form of authorization may vary depending on whether it is for existing records or the prospective production of future private communications – i.e. search warrant or wiretap): see R. v. Telus, 2013 SCC 16. When considering searches of cell phones incident to arrest, however, it is important to note (when considering the second grounds - to prevent destruction of evidence), that text messages, photographs and other content can be easily deleted from cell phones with the press of one command. With the rapid advance in technology permitting control of electronic devices from a remote location (e.g. remote locking and deleting of all data from iPhones, apps to control thermostats remotely, accessing and deleting voicemail remotely, etc.), it may be that in the near future parties will be able to delete text messages or images from all types of cell phones remotely. This would mean that even if a cell phone was seized without being searched immediately, by the time the police could obtain a search warrant, the evidence might be lost by being deleted by the accused or someone assisting him/her. While the potential destruction of this type of evidence was not a factor in the case before me, it is important for courts to be mindful of this issue when considering whether the police are acting for the purpose of protecting evidence from being destroyed when searching cell phones incident to arrest.

[41] Although he did not articulate it as being connected to search incident to arrest, I would be very surprised (especially given that he is a member of the Drug Enforcement Unit), if Det. Cst. Davies was completely unaware that he has a right to search someone for weapons where the safety of an officer or the public is in issue. This is a basic police training issue. Perhaps he does not realize that this is connected to search incident to arrest police powers. It is clear, however, that in the case before me there is no evidence that there were any safety concerns that would have provided grounds for searching the cell phone. There may be such concerns in other cases, for example, where weapons or explosives are believed to be involved in a crime.

[42] In spite of Det. Cst. Davies' incomplete understanding of the scope of search incident to arrest, I find that he acted in good faith when he searched for text messages on Jeanette Nolan's cell phone. I conclude that it was both subjectively and objectively reasonable for him to search for evidence relating to the meeting that had just taken place, during which he believed Jeanette Nolan bought drugs from Janet Ormston. I accept that this was done in order to gather relevant potential evidence against Jeanette Nolan on a possession of crack cocaine charge. Contrary to Defence Counsel's submission, the fact that Jeanette Nolan was being charged with simple possession of drugs does not mean that the case against her wouldn't benefit from having evidence that she had in fact purchased them (especially in a case such as this where the crack cocaine was found on the roadway near the driver's door, and not on her person). I disagree with the Defence submission that "the text messages would be irrelevant to Ms. Nolan's trial". Evidence connecting Jeanette Nolan as the buyer of the drugs found would clearly be relevant as to whether she knew of or had control over those drugs. Whether the text message evidence could also be used against Janet Ormston is irrelevant to whether Det. Cst. Davies was conducting a valid search incident to arrest, so long as one of the officer's purposes was to gather evidence against Jeanette Nolan in relation to the drug buy. I accept that one of his purposes in searching the cell phone was in fact to gather evidence against Jeanette Nolan and do not accept that it was done solely to gather evidence against Janet Ormston.

[43] I also accept that the search of the cell phone contents by Det. Cst. Davies was a cursory one within the meaning of Polius, supra, at paragraph 41. The officer looked only for those text messages relating to the meeting that had taken place between Janet Ormston and Jeanette Nolan and for the phone number connected to "Janet" listed in Contacts. It is significant that all text messages unrelated to the meeting that had taken place that day were "discarded"/ignored. The evidentiary value of the text messages as relating to a drug buy was reasonably apparent on a reading of them in the context of the rest of the investigation (especially the surveillance evidence). This is apparent in particular in the following messages: Jeanette Nolan: How much do I owe; Janet Ormston: 120; and later, Jeanette Nolan: make it 2 hb instead of one whole pls; Janet Ormston: k cool".

[44] Applying the Caslake, supra, principles to the facts of this case, I conclude that Det. Cst. Davies was acting within the scope of permissible authority when he searched Jeanette Nolan's cell phone pursuant to her arrest, so there is no breach of Janet Ormston's s. 8 Charter rights on this basis. There still remains the additional issue of whether the search of the contents of the cell phone amounted to a breach of s. 8 because it was done without a search warrant.

The Law with Respect to the Search of Cell Phone Contents

[45] On February 20, 2013, the Ontario Court of Appeal released its decision which deals with the issue of the search of cell phones incident to arrest in Fearon, supra. On July 11, 2013, the Supreme Court of Canada granted leave to appeal from that decision, limiting the issue on appeal to the cell phone search. This means that the law in this area remains unsettled until the Supreme Court decides the issue. I must make my decision based on the law as it exists today and I am bound by the reasons of the Ontario Court of Appeal.

[46] The Fearon case dealt with the search of a cell phone which had been seized during a pat down search incident to arrest for robbery with a firearm. The cell phone was not locked or password protected. The photographs and text message were not in plain view, and the officer had to go into the contents of the phone to retrieve them. When the police officer searched the cell phone at the time of the arrest he found an incriminating text message as well as photographs of guns and cash. A gun matching the photograph was later found in the getaway car. Although the cell phone was searched several more times at the police station, no further evidence was found on it. Several months later the police obtained a search warrant to examine the contents of the phone again believing that the case law now required it (no challenge was taken to the search warrant at trial). The cell phone images and text message were admitted into evidence by the trial judge.

[47] On appeal it was argued that a warrantless search of cell phone contents incident to arrest, that goes beyond a cursory search to look for evidence connected to the crime, breaches s. 8 of the Charter unless there are exigent circumstances. The Canadian Civil Liberties Association argued that the police should not be permitted to conduct even a cursory search of a cell phone except in exigent circumstances. The Court was asked, but declined to carve out a cell phone exception to the common law doctrine of search incident to arrest.

[48] The Ontario Court of Appeal found that the search of Mr. Fearon's cell phone at the scene of the arrest satisfied the criteria for the common law doctrine of search incident to arrest to apply, because the police reasonably believed that a cursory examination of the contents of the cell phone would yield evidence relevant to the robbery. At paragraph 57 they concluded as follows:

57 …I cannot conclude, in the circumstances of this case, that the original examination of the contents of the cell phone fell outside the ambit of the common law doctrine of search incident to arrest. Apparently, the cell phone was turned "on" and it was not password protected or otherwise "locked" to users other than the appellant. The police officers had a reasonable belief that they might find photographs and text messages relevant to the robbery. The initial search at the time of the arrest involved a cursory look through the contents of the cell phone to ascertain if it contained such evidence.

[49] The Court came to a different conclusion regarding the additional searches of the cell phone at the police station, indicating that the police should have stopped the search and obtained a search warrant before examining the cell phone again at the police station. On this issue the Court of Appeal stated the following at paragraphs 58 to 60:

58 The subsequent examinations of the contents of the cell phone at the police station are more difficult to analyze. Arguably, those examinations went beyond the limits for a search incident to arrest. See Caslake, at para. 25. In my view, the proper course for the police was to stop the examination of the contents of the cell phone when they took the appellant to the police station and then proceed to obtain a search warrant. Detective Abdel-Malik agreed that there was no urgency to search through the cell phone. There is no evidence that it would have been impracticable to appear before a justice to obtain a search warrant in the usual manner. If it was impracticable for an officer to appear before a justice to obtain a search warrant, the police could have proceeded to obtain a telewarrant under s. 487.1 of the Criminal Code. That said, the trial judge concluded that the examination of the contents of the cell phone at the police station were connected to the search at the scene of the arrest. Although some time and distance had passed from the arrest, the trial judge found that the police were still looking for evidence of the location of the jewellery and the gun as well as for contacts among the parties to the offences. These were findings of fact made by the trial judge. While I would have come to a different conclusion, I cannot say that these factual findings reflect palpable and overriding error.

59 There is also another observation to make about the search of the cell phone at the police station. No additional evidence appears to have been discovered by the police and none was tendered in evidence from that search. Even if the search at the police station went beyond the limits of Caslake s. 24(2) is not engaged.

60 In the result, I conclude that the trial judge did not err in her finding that the examination of the contents of the cell phone at the time and place of arrest and later at the police station were within the ambit of the common law doctrine of search incident to arrest.

[Emphasis added by the Court]

[50] In concluding that the search of Mr. Fearon's cell phone did not breach his s. 8 Charter rights the Court of Appeal declined to cut out an exception for cell phones from search incident to arrest. Justice Armstrong states at paragraphs 69 to 77 that:

iv. Conclusion on the proposed cell phone exception

69 Much of the argument in this case, both here and in the court below, focused on Polius. The appellant argued that the reasoning in Polius should apply in this case. Counsel for the respondent distinguished Polius from the case at bar. The Director of Public Prosecutions, on the other hand, took the position that Polius was wrongly decided.

70 I agree that Polius is distinguishable from this case. In Polius, the arresting officer received his instructions from a senior officer who did not brief him on the circumstances of the alleged offence. When the cell phone was seized on arrest, the arresting officer had no instructions to seize it and no reason to believe that it would contain relevant evidence.

71 The cell phone in Polius was turned over the next day to a technician of the Toronto Police Service who conducted an examination of the phone over two or three days without obtaining a search warrant. The technician prepared a 15 page report that included an appendix of over 200 pages of the information in the defendant's cell phone. Given the facts of Polius, it is not surprising that Trafford J. concluded it was a case that called for a search warrant.

72 The problem I have with the appellant's position and, in particular, the position of the Canadian Civil Liberties Association, is that it would appear to mark a significant departure from the existing state of the law on the basis of a record that does not suggest it is necessary. While I appreciate the highly personal and sensitive nature of the contents of a cell phone and the high expectation of privacy that they may attract, I am of the view that it is difficult to generalize and create an exception based on the facts of this case. The facts of this case, with the correct application of the existing law, suggest that the search and seizure of the cell phone at the scene of the arrest were carried out appropriately and within the limits of the law articulated by the Supreme Court in Caslake.

73 In this case, it is significant that the cell phone was apparently not password protected or otherwise "locked" to users other than the appellant when it was seized. Furthermore, the police had a reasonable belief that it would contain relevant evidence. The police, in my view, were within the limits of Caslake to examine the contents of the cell phone in a cursory fashion to ascertain if it contained evidence relevant to the alleged crime. If a cursory examination did not reveal any such evidence, then at that point the search incident to arrest should have ceased.

74 The appellant directed this court to statements made by the trial judge in Little, where she concluded at para. 147 that the cell phone in issue "functioned as a mini-computer". Furthermore, the court in Little found that the contents of the cell phone "were not immediately visible to the eye" and were "extracted by a police officer with specialized skills using specialized equipment." There was no suggestion in this case that this particular cell phone functioned as a "mini-computer" nor that its contents were not "immediately visible to the eye". Rather, because the phone was not password protected, the photos and the text message were readily available to other users.

75 If the cell phone had been password protected or otherwise "locked" to users other than the appellant, it would not have been appropriate to take steps to open the cell phone and examine its contents without first obtaining a search warrant.

76 In short, I find myself in the same position as this court found itself in Manley. To quote from the reasons of Sharpe J.A. again, it is "neither necessary nor desirable to attempt to provide a comprehensive definition of the powers of the police to search the stored data in cell phones seized upon arrest."

77 It may be that some future case will produce a factual matrix that will lead the court to carve out a cell phone exception to the law as articulated in Caslake. This is not that case. To put it in the modern vernacular: "If it ain't broke, don't fix it."

[Emphasis added by the Court]

[51] In S.M., supra, decided in 2012 prior to Fearon, Justice Nordheimer found that the non-owner of a cell phone has an, "ongoing and important privacy interest" in the text messages stored on another person's cell phone. In considering the issue of standing to challenge cell phone searches, the important privacy concerns that attach to the contents of cell phones was addressed at length at paragraphs 15 to 25:

15 …Long gone are the days when a phone was simply used to make or receive calls with others. Nowadays, cell phones can, and usually do, contain vast amounts of personal information. Cell phones not only make and receive what I might refer to as traditional forms of telephone calls, they also act as recording devices (both audio and video), cameras and depositories of other forms of communications such as emails and, more importantly in this case, text messages. That reality in turn requires an analysis of the type of information that the police obtained through the searches of the cell phones because, depending on the nature of that information, different conclusions arise regarding any privacy interest in the information.

16 The prosecution is correct that S.M. has no standing to challenge the searches of other persons' cell phones with respect to certain forms of information. For example, S.M. has an insufficient privacy interest in the contact list in another person's cell phone such as to have standing to challenge a search and seizure of a cell phone and the discovery of that information. While the information contained in a contact list will involve private information belonging to each contact, in this case S.M.'s nickname and his phone number, any privacy interest the contact has in that information is significantly reduced once that person communicates that information to other persons knowing that those persons may record it and/or share it with others. Similarly, in the normal instance, the non-owner of a cell phone would not have any privacy interest in photos or recordings that might be contained within that cell phone and that were, presumably, created by or on behalf of the owner of the cell phone. I conclude, therefore, that S.M. has no standing to challenge the search and seizure of either Mr. Skeete's cell phone or K.R.'s cell phone insofar as the prosecution seeks to rely on the contents of the contact lists found therein.

17 Conversely, I conclude that the non-owner of a cell phone does have an ongoing and important privacy interest in other information that might be obtained from another person's cell phone. In particular, the non-owner of a cell phone has an ongoing privacy interest in text messages that are either contained in a cell phone or that can be obtained from the records of the carrier for that cell phone. I reach that conclusion for the following reasons.

18 Text messages are a relatively recent phenomenon but their increasing use as a method of communication between individuals cannot be denied. Text messages are instantaneously transmitted and it is generally expected that text messages will receive an equally timely response. The contents of the text messages in this case demonstrate that reality. Text messages are not like email messages where an immediate response is not an expectation inherent in the mode of communication used - although a quick response may nonetheless be wanted. Text messages occur very much more in "real time". Indeed, text messages are often a substitute for an actual conversation and thus are much more akin to a traditional telephone conversation than they are to other modes of communication. Emails, on the other hand, are more akin to an electronic version of a letter.

19 I recognize that there are still differences between a telephone conversation and a text message. Principal among those differences is that there is generally no record of the contents of a telephone call whereas there is a record of the contents of a text message. This distinction is important because it serves to take text messages outside the scope of the provisions of Part VI of the Criminal Code dealing with the interception of private communications. While a text message would fall within the definition of "private communication" contained in s. 183, I agree with the conclusion that others have reached that the prohibition against the interception of private communications involves a contemporaneous interception of the communication, not a later seizure of that same communication - see, for example, R. v. Finlay, at para. 66. By way of example, if a person happened to record all of their telephone conversations, the police would not need an authorization under Part VI to seize those existing records. Rather, they would obtain a search warrant under s. 487 for the records.

21 The conclusion that text messages are not covered by Part VI of the Criminal Code does not carry with it, however, the corollary conclusion that the non-owner of the cell phone, who is a party to a text message retrieved either directly or indirectly from the cell phone, does not have any privacy interest to protect in the state's seizure of that message. The scope of privacy interests does not depend on the nature of the authorization by which the authorities seize private communications.

23 With text messages, the state is not technically making a permanent record of private communications. Both the originator and the recipient of the message each make a record of it through the means utilized to communicate the message. The originator maintains control of his/her copy of the message but never has control of the recipient's copy. That distinction does not, in my view, change the nature of the privacy interest. The reality is that we now live in a world where a great deal more of our daily actions are recorded than has been the case in the past. The advent of the "digital age" carries with it the creation of digital records of all types….

24 The fact that a digital record exists of a text message does not substantially change the privacy interest that arises from the nature of the message. It is still a private communication that the sender intends only for the recipient. While I accept that the fact that there is a record of that message beyond the control of the originator slightly lessens the privacy interest, in the sense that the originator must be alert to the possibility that the recipient might show or otherwise transmit the message to others, I believe that there is a qualitative difference between that risk and the risk that the state will seize the message. Again, the observations of La Forest J. in Duarte are apposite, at para. 30:

I am unable to see any similarity between the risk that someone will listen to one's words with the intention of repeating them and the risk involved when someone listens to them while simultaneously making a permanent electronic record of them. These risks are of a different order of magnitude. The one risk may, in the context of law enforcement, be viewed as a reasonable invasion of privacy, the other unreasonable. They involve different risks to the individual and the body politic. In other words, the law recognizes that we inherently have to bear the risk of the "tattletale" but draws the line at concluding that we must also bear, as the price of choosing to speak to another human being, the risk of having a permanent electronic recording made of our words.

25 I would amend the latter observation of La Forest J., given the realities of the world in which we now live more than twenty years later, to say that the law ought to draw the line between the risk of the "tattletale" who chooses to show a text message to a third party and the seizure by the state of text messages as the price of someone choosing to adopt this form of "new age" private communication over the traditional telephone call.

[Emphasis added by the Court]

[52] My colleague, Justice De Freitas, recently considered the issue of text messages on cell phones, in very similar circumstances to the case before me, in the decision of R. v. Terrence Andrew Knox (unreported, April 12, 2013, O.C.J.). Mr. Knox had sent a text message offering to sell cocaine to someone who, unbeknownst to him, was in police custody (the police had seized that person's cell phone upon arrest). The police replied to the message, arranging to meet with Mr. Knox to buy cocaine, and when he arrived at the pre-arranged time and location he was arrested and found to be in possession of 13 grams of cocaine and a small amount of marijuana. The cell phone was not password protected and the police did not have to take steps to break into the phone to access its contents. Justice De Freitas concluded that Mr. Knox did not have a reasonable expectation of privacy in the cell phone to which he sent the incriminating text message but that he did have a privacy interest in the content of the message itself:

However, the police were in lawful possession of the phone as it was seized incident to arrest. As a result, they have the authority to conduct a cursory review of the phone for the purpose of gathering evidence with respect to their investigation. In those circumstances, the search complied with s.8 of the Charter.

[53] I adopt Justice De Freitas' very persuasive analysis of the issues relating to the privacy issues relating to text messages found on another person's cell phone as follows:

Analysis

Has Mr Knox established a reasonable expectation of privacy in the text message sent to Crozier's phone?

There are two distinct questions which must be answered in any s.8 challenge. The first is whether the accused had a reasonable expectation of privacy. The second is whether the search was an unreasonable intrusion onto that right to privacy. The existence of a reasonable expectation of privacy is determined on the basis of the totality of the circumstances with reference to a number of factors including the existence of a subjective expectation of privacy and the objective reasonableness of that expectation. (See R. v. Edwards, at paragraphs 33 – 45.)

Mr. Knox chose not to testify. As a result, I have no evidence from him of his subjective expectation of privacy in the text message that he sent to Crozier.

That is not fatal to his privacy claim.

For more than two decades courts have struggled to define the parameters of privacy in the face of rapidly changing technology and forms of communication. Today, smart phones are ubiquitous. People call, e-mail, text, and "tweet" constantly. Since 2007 – an eternity in the rapidly evolving world of communication technology – courts have accepted that e-mails sent via smart-phone engender objectively reasonable expectations of privacy. (See R. v. Giles)

More recently, a court accepted that the sender of a text message has a privacy interest in a message sent to and retrieved from the cell phone of a third party.

[reference to Justice Nordheimer in S.M., supra omitted]

In R. v. Telus…the Court held that a wiretap authorization under Part 6 of the Criminal Code is required to authorize the prospective seizure of text messages from a database kept by a cell phone company. In that context, the court concluded that there is an expectation of privacy in a text message:

"Text messaging is, in essence, an electronic conversation. The only practical difference between text messaging and the traditional voice communications is the transmission process. This distinction should not take text messages outside the protection of private communications to which they are entitled in Part VI. Technical differences inherent in new technology should not determine the scope of protection afforded to private communications.

As all parties acknowledged, it is clear that text messages qualify as telecommunications under the definition in the Interpretation Act. They also acknowledged that these messages, like voice communications, are made under circumstances that attract a reasonable expectation of privacy and therefore constitute "private communication" within the meaning of s. 183."

(See R. v. Telus, at paragraphs 5 and 32)

While there is still some uncertainty as to the constitutionally appropriate method for seizing text messages, it is now clear that an accused has a reasonable expectation of privacy in them.

Was the warrantless search of the cell phone lawful?

The Crown relies in part on the common law doctrine of search incident to arrest to provide the legal authority for the search of Crozier's cell phone. A search is properly incidental to arrest where the police attempt to "achieve some valid purpose connected to the arrest" including the need to ensure officer safety, the protection of evidence from destruction, or the discovery of evidence which can be used at the arrestee's trial.

(See R. v. Caslake, at paragraph 13)

Officer Campbell testified that he seized two phones from Crozier on arrest. He examined the phones and confirmed that one of them – a Samsung - had been used to contact the undercover officer who had arranged to buy cocaine from Crozier. Officer Campbell seized the phone at 8:45 pm. By 9:50 pm he was at the police station processing the seized items and at 10:01 pm the incriminating text message was received on the Samsung phone.

When asked why he read the text message he testified:

A: …I've been involved in lots and lots of good investigations, and I know through my experience that drug traffickers ….use phones as the main tool of their trade….that's the way they do business is through phones, to set up meetings with people, to discuss drug pricing, and we just arrested Crosier for trying to sell drugs to an undercover officer, so my thought was that this text message could potentially have evidence to support our charges against Crozier".

I accept Officer Campbell's testimony. It establishes a clear nexus between the crime for which Crozier was arrested and Officer Campbell's decision to read Mr. Knox' text message. That finding suggests that the "seizure" of the message was justified by a valid search incident to arrest. However, as noted in the Crown factum, the weight of judicial authority is split on whether cell phones can be searched incident to arrest. In British Columbia there are few limits on the type of search that can be conducted once the phone is properly seized.

(See R. v. Giles)

In Ontario, only a cursory inspection is permitted. Anything more invasive requires a warrant.

(See R. v. Polius; R. v. Finnikin; R. v. Little; and R. v. Manley)

The most recent attempt to settle the parameters of search incident to arrest with respect to cell phones is the Ontario Court of Appeal's decision in R. v. Fearon…

The court refused the request to carve out a cell phone exception to the search incident to arrest power…

[reference to paragraphs 72 to 76 of Fearon omitted]

I am satisfied that Officer Campbell's reading of the text message was authorized as a valid search incident to arrest. Furthermore, Mr. Knox is one step removed from Mr. Fearon in that the phone searched by the police in this case was not his. While I've concluded that he had an expectation of privacy in the impugned text message, his privacy interest is attenuated by the fact that his message is stored on a phone belonging to someone else.

I accept the officer's evidence that the cellphone was not password protected nor did he have to use any special software to rummage through the content of the phone. In my view, the Crown has met it's onus of establishing on a balance of probabilities that the seizure of the text message was lawful.

The recent decision of the Supreme Court of Canada in Telus does not alter the analysis. At first blush, the decision appears to support Mr Hochberg's argument that the police required a wiretap authorization in order to read Mr. Knox's message.

However, the Telus court was dealing with the prospective seizure of text messages under the authority of a general warrant. The Court concluded that, in those circumstances, a wiretap authorization pursuant to Part VI of the Criminal Code was required. The Court did not address the seizure of historical text messages like the one at issue in this case nor consider whether those messages can be validly seized incident to a lawful arrest.

On my reading of the current state of the law, a police officer may conduct a cursory cell phone search incident to a lawful arrest.

[Emphasis added by the Court]

[54] I disagree with the submission of Defence Counsel that Justice De Freitas misread Telus, supra, and S.M., supra, in finding that that the privacy interest in a sent text message is attenuated because the message is stored on a phone belonging to someone else. This is simply common sense. While based on the caselaw I find (as did Justice De Freitas) that there is a reasonable expectation of privacy which attaches to every text message no matter where it is stored, the fact that the sender has no control over who views it once it is sent is simply stating the obvious. In fact that is precisely what happened to Mr. Knox when he sent his text message and it was read by a police officer. This is also exactly what Det. Cst. Davies meant when he testified in this case, "once it's gone, it's gone, it's into another phone, you're relying [on] the person on the other end". Whether the text message remains private to the intended recipient depends very much on who has access to their phone. This analysis in no way undermines the requirements of the police to access text messages on cell phones pursuant to lawful police powers or prior judicial authorization.

[55] I accept that the physical location of a text message does not drive the analysis of the expectation of privacy: see Telus, supra, at paragraph 7, when describing text messages stored on an internet service provider's computer database; also R. v. Ward at paragraph 77; and R. v. Shayesteh at paragraph 41.

The Application of the Law Concerning Cell Phones to the Facts of this Case

[56] An application of the caselaw to this case leads me to conclude that while Janet Ormston did have a reasonable expectation of privacy with respect to the text messages located on Jeanette Nolan's cell phone, that Det. Cst. Davies' search of the cell phone was not an unreasonable intrusion onto that right to privacy.

[57] I find that it was reasonable for Det. Cst. Davies to believe that he might secure evidence in relation to the offence for which Jeanette Nolan was being arrested when he searched her cell phone. It was reasonable for him to believe that the arrestee, Ms. Nolan, may have had communications with Janet Ormston prior to or during their meeting when Ms. Nolan was believed to have purchased crack cocaine from her. The first officer to examine the contents of the cell phone was Det. Cst. Davies at the police station shortly after the arrest. I conclude that the search was closely connected to the search incident to arrest at the scene. There was, however, no urgency to the situation that would justify searching the cell phone on the basis of exigent circumstances.

[58] It is very important for me to consider the direction given by the O.C.A. in Fearon, supra, in paragraph 58, that the police should have applied for a search warrant in that case before the search of Mr. Fearon's cell phone at the police station. The facts in Fearon are distinguishable from this case, however, because the police had already conducted a cursory search of Mr. Fearon's cell phone at the scene and then conducted an additional examination of it at the police station. I conclude that the Fearon case directs that, so long as a cursory search of a cell phone is conducted for one of the purposes permitted by search incident to arrest, then any subsequent searches should be done pursuant to a search warrant. The grounds for the information to obtain the search warrant would likely include reference to any evidence discovered during that cursory search. I do not take Fearon to mean that all cell phone searches done at police stations require a search warrant. Such an interpretation would fly in the face of the Supreme Court of Canada's decision in Caslake, supra, at paragraphs 24 and 25 where Chief Justice Lamer clearly stated that, "There is no need to set a firm deadline on the amount of time that may elapse before the search can no longer said to be incidental to arrest…Delay and distance do not automatically preclude a search from being incidental to arrest." Applying this law, it is my view that, so long as the police are conducting only a cursory search of a cell phone to see if there is any evidence relating to the offence for which that person was arrested, it can be done at the police station within a reasonable time after the arrest (the sooner the better, otherwise a negative inference might be drawn as to whether the search was truly incidental to the arrest). This will turn more on an analysis of what amounts to a "cursory" search and whether it is truly incidental to the arrest, than where it is done. I understand Fearon to mean that once a permissible cursory search has been completed/exhausted, the police are then obligated to obtain a search warrant if they wish to conduct any further and perhaps more thorough searches of cell phones.

[59] In this case Jeanette Nolan's cell phone was already turned on and not locked or password protected in any way when Det. Cst. Davies received it. I find that the initial search conducted by Det. Cst. Davies was cursory and done within a reasonable time of the arrest. The officer ignored all contents on the cell phone that were irrelevant to the alleged drug buy meeting and no record was kept of any other contents. There is no suggestion that this was an expansive or abusive search. As in Fearon, supra, this case is distinguishable from R. v. Polius, where Justice Trafford concluded that the arresting officer searched the cell phone without any regard for its connection to the murder for which the accused was arrested.

[60] In his submissions, Defence Counsel has not raised any issues about the timing of when the text messages were recorded by the officer. Neither has there been any argument that the notes in Exhibit A accurately reflect the actual text messages sent or received by Janet Ormston and Jeanette Nolan. In light of Fearon, supra, however, I feel obliged to address whether Det. Cst. Davies should have obtained a search warrant before returning to the cell phone the next day to make a record of the text messages. Ideally a "screen shot" (photograph) of the text messages on the cell phone could have been taken at the time of the cursory search or shortly after, in order to preserve the most accurate record of the text messages (the "best evidence" rule). This would have avoided the need for the officer to go back into the cell phone later to write down what he had seen. This would have the added benefit of precluding any suggestion that an officer has not accurately transcribed the text messages, or meeting any claim denying that such messages were sent. Once Det. Cst. Davies was obliged to leave his examination of the cell phone to perform other necessary police duties and then gone off-shift, it might have been preferable if he had obtained a search warrant before going back into the cell phone to make a record of what he had already observed. He could have included a summary of what he had read as part of his grounds to obtain the warrant. Another approach might have been to attempt to obtain a judicial authorization for the internet service provider's computer records of these text messages (assuming they would have been kept as in the Telus case). In spite of the timing of when the officer recorded the text messages in this case, I accept that when Det. Cst. Davies returned to work to make his notes the next day that he was simply recording the messages that he had already lawfully obtained pursuant to a search incident to arrest. I find that no additional search of the cell phone was undertaken at that time and that his sole purpose in going back into the cell phone was to record those messages already seen. I conclude that the timing of when he made that record does not alter my analysis in this case that there was no s. 8 Charter breach.

[61] In the circumstances before me, I conclude that there was no breach of Janet Ormston's s. 8 Charter rights when Det. Cst. Davies conducted a cursory search of the text messages that she had sent to Jeanette Nolan's cell phone on April 19, 2011.

Section 24(2) of the Charter

[62] Having found no breach of s.8 of the Charter it is not necessary for me to consider s. 24(2); however, I will do so in the event that my analysis in respect of the cell phone search incident to arrest proves to be wrong. If I had concluded that there was a s. 8 breach, I would not have excluded the evidence of the text messages on a s. 24(2) analysis applying the Supreme Court of Canada's decision in R. v. Grant, 2009 SCC 32.

[63] In Fearon, supra, the Ontario Court of Appeal agreed with the conclusion reached by the trial judge, that even if there was a breach of s. 8 of the Charter, that applying a s. 24(2) analysis, the admission of the evidence from the cell phone would not bring the administration of justice into disrepute. In Caslake, supra, even though the Court held that the search was not incidental to arrest, nevertheless, the evidence found in the motor vehicle was still admitted into evidence applying the pre-Grant standards to s. 24(2) of the Charter.

[64] In considering section 24(2) of the Charter, I am greatly assisted by the analysis engaged in by Justice De Freitas in Knox, supra:

Section 24(2)

If I'm wrong in concluding that the search did not infringe s.8 of the Charter, I would not exclude the evidence in this case. If the seizure of Mr. Knox text message did result in a breach of his s.8 Charter rights, it did so only by the barest of margins.

The test for exclusion is defined by the Supreme Court of Canada decision in R. v. Grant, 2009 SCC 32. In order to determine whether or not the admission of evidence would bring the administration of justice into disrepute, the court must assess and balance the following three lines of inquiry:

• The seriousness of the Charter-infringing state conduct;
• The impact on the defendant's Charter-protected interests; and
• Society's interest in an adjudication of the trial on its merits.

The seriousness of the Charter-infringing state conduct

The focus under the first branch of the analysis is the preservation of public confidence in the rule of law. In assessing the seriousness of the Charter breach, courts often rely on the metaphor of a spectrum in characterizing police conduct from blameless, through negligent to conduct demonstrating a blatant disregard for Charter rights. Charter infringing conduct by the Police that falls closer to the deliberate and egregious end of the spectrum will often – if not always – lead to exclusion.

In this case, if there was a breach, it does not fall towards the serious end of that spectrum. Officer Campbell acted in good faith. He believed – rightly in my view – that he had the authority to search Mr. Crozier incident to arrest for evidence relating to the reason for the arrest.

He was asked in examination-in-chief the following question:

Question: Explain why you believed you were able to [search the cell phone]

Answer: "…when the text message came in, my original thought was that this could be an opportunity to gain further evidence to support the charge against Mr. Crozier of drug trafficking ….if, for instance, this message was a customer wanting to purchase drugs from him, it would just support further that this person was a drug trafficker and it wasn't a one off situation with Detective Taylor…from my understanding I can search incident to arrest much as like a motor vehicle – to find anything that can be used as evidence – could be drug packaging, drugs things of that nature – which is similar in my mind as a cell phone. It's a tool used by a drug trafficker…looking at the text message is just another way of gathering evidence against a drug trafficker."

Officer Campbell's view of his authority finds support in the case law. As of today's date, even after the recent decisions in Fearon and Telus, there is no clear binding appellate authority that would have obligated the police to do anything other than what they did with Crozier's cell phone. Indeed, Officer Campbell testified that in the briefing held after he read Mr. Knox's message, one of his colleagues asked if they needed a warrant to pursue the investigation against the sender of the text:

"Q: When you saw that message did it occur to you at that time that you should apply for a search warrant of some sort for of prior judicial authorization?

A: Not at the time I saw the message. But during our briefing about what actions we were going to take, it was brought up. But I didn't think it was practical to try and get a search warrant. I don't even know what type of search warrant I would apply for. A general warrant? I don't know, to try and be able to use somebody's cell phone to make communication? I guess I could have applied for it, but by the time – but even the time that it would take to do something of that nature would kind of defeat the purpose of what was being investigated at the time. It would take too much time. I'm sure that, if these people know each other enough to have some drug relationship, if word were to get back that Mr. Crozier was in custody, the opportunity would be lost… I think it is something that had to be acted upon quickly."

Detective Campbell acted in accordance with the law as he understood it at the time. In my view, that bolsters my finding of good faith.

Impact of the breach on the Mr. Knox's Charter-protected interests

Consideration of the impact of the breach, "calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed." (See Grant, supra, at paragraph 76) For example, some breaches of the right to counsel will result in the extraction of an incriminating statement and certain violations of s. 8 might involve particularly intrusive searches or seizures such as a strip search or a seizure of psychiatric records. The clear wording of Grant, relating as it does to the extent to which the violation "actually undermined" protected interests, necessarily requires going beyond a mere categorization of the type of breach to consider the real-life effect of that breach on the underlying interests in a particular fact scenario.

I accept that cell phones contain highly personal and sensitive information that is subject to a high expectation of privacy. Had the police searched Mr. Knox's cellphone the impact of the breach would have had a significant impact on his Charter-protected privacy interest. They did not. It was not his phone. And that makes a difference. His privacy interest was limited to the content of the one text message he sent to Crozier. While I'm willing to accept he had an expectation that his offer to sell cocaine would not be read by the police, I'm not satisfied the search in this case actually undermined his privacy rights in any significant way.

There is no evidence of the nature of his relationship with Mr. Crozier. Was this simply an illicit business acquaintance or are they life-long friends? Did Knox think that Crozier's phone was password protected? Had he received assurances from Crozier that his drug related text messages would not be forwarded to others? On the record before me, I am simply not satisfied that Mr. Knox's privacy rights were impacted in any meaningful way. His dignity and bodily integrity were certainly not implicated by the search of Croziers cell phone.

Value of a trial on the merits

While each case must be considered on its own facts, it may be ventured in general that, where a Charter violation is serious and the impact on the accused's privacy, bodily integrity or dignity is high, evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, reliable evidence such as the drugs in this case may be admitted.

When I balance what I find to be a rather minor transgression by the state against the impact on Mr. Knox's Charter-protected interests relating to highly probative evidence that is essential to the Crown's case, I am not satisfied he has demonstrated on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute.

[65] I adopt the analysis engaged in by Justice De Freitas and apply it to the facts of the case before me. I conclude that even if the seizure of the text messages on Jeanette Nolan's cell phone did result in a breach of Janet Ormston's s.8 Charter rights that it did so only by the barest of margins.

[66] With respect to the seriousness of the alleged breach I find that it would fall at the lower end of the spectrum. Although his understanding of the law of search incident to arrest is incomplete, I accept that Det. Cst. Davies acted in in good faith and in accordance with the law regarding cell phone searches as he understood it at the time (in April of 2011 when the law was still unsettled in this area). I have found that while he may be mistaken about some things, the officer correctly believed that he had the right to search Jeanette Nolan's cell phone for evidence of her involvement in a meeting during which she allegedly bought crack cocaine from Janet Ormston. Once the officer had the right to search Jeanette Nolan's cell phone for this evidence against her, it would by necessity also result in evidence against Janet Ormston being obtained at the same time. Therefore the seriousness of any breach is minimal.

[67] In considering the impact of any breach of Ms. Ormston's Charter-protected interests I accept that cell phones contain information of a highly personal and sensitive nature which is subject to a high expectation of privacy. I agree with Justice De Freitas' conclusion that the fact that the text messages were found on another person's phone makes some difference to this issue. Janet Ormston had no privacy interests in Jeanette Nolan's cell phone beyond the content of the text messages she had sent. She had no control over what Jeanette Nolan would do with those messages once received, or who had access to that cell phone. If I were to consider the evidence of Jeanette Nolan on the trial (I don't recall any agreement that her evidence would apply to this Application) it lets me know that they were friends who socialized on a regular basis, that they had known each other for a few years and that they used crack cocaine together and would communicate over who was bringing drugs. I have no evidence that Janet Ormston believed that Jeanette Nolan's cell phone was password protected or that they had some agreement that the text messages would not be shown or forwarded to others. There was very likely an expectation by both of these women that any text messages relating to offers to sell or buy cocaine would not be read by the police. Ms. Ormston's dignity and bodily integrity were not compromised in any way by the cell phone search. I am not satisfied that the search in this case actually undermined Ms. Ormston's privacy rights in any significant way.

[68] With respect to the third branch of Grant concerning the value of a trial on the merits, as Justice De Freitas puts it, "where the violation is less egregious and the intrusion is less severe in terms of privacy, reliable evidence … may be admitted." The text message evidence obtained from the warrantless search in this case constitutes highly probative and cogent evidence of the very serious crime of trafficking in crack cocaine. This evidence is essential to the Crown's case against Janet Ormston. Defence Counsel argues that these text messages are capable of various inferences. At trial the Crown intends to call an expert witness to explain the content of the messages and confirm that they reflect that a drug transaction was to occur. The interpretation of, and weight to be attached to the text messages is an issue which remains for the trial. This does not, however, undermine the Crown's position that the messages are very important to their case against Janet Ormston.

[69] In balancing the factors which I must consider when applying these three branches as articulated in the Grant case, I conclude that even if there had been a s. 8 Charter breach in this case, I am not satisfied that the admission of the text message evidence in this case would bring the administration of justice into disrepute.

Result

[70] In my view the Crown has met its onus of establishing on a balance of probabilities that the seizure of the text messages on Jeanette Nolan's cell phone was lawful and reasonable. I conclude that section 8 of the Charter has not been infringed and therefore no evidence will be excluded. This Application is dismissed and the trial will continue on September 30th and October 1, 2013.

Released on: August 7, 2013

Signed: "Justice S. C. MacLean"