Court Information

Date: December 12, 2017

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

Karen Adams and John Harkness

Before: Justice Michael G. March

Heard on: August 14, October 24 and November 7, 2017

Ruling on Charter Application released: December 12, 2017

Counsel

Timothy McCann — Counsel for the Federal Crown

Jodie Primeau — Counsel for the Accused, Karen Adams

Tyler Botten — Counsel for the Accused, John Harkness

Judgment

March, J.:

Introduction

[1] On September 26, 2016, the accused, Karen Adams ("Adams") was charged with possession of oxycodone contrary to Section 4(1) of the Controlled Drugs and Substances Act ("CDSA"), and the co-accused, John Harkness ("Harkness") was charged with possession for the purpose of and trafficking in oxycodone contrary to Section 5(1) and Section 5(2) of the CDSA, respectively.

[2] Adams and Harkness contend that their constitutional rights were infringed upon arrest and as a result of seizures made by police. By agreement of counsel, the Crown's case was called in a blended voir dire/trial. The defence chose not to lead any evidence on the hearing of the Charter Application within the voir dire. What follows is my ruling on the Charter arguments raised by the defence.

Relevant Facts

[3] On September 26, 2016, Adams and Harkness were stopped while travelling together in a vehicle, a silver Mazda. They were immediately arrested and searched incident to their arrest.

[4] The sole basis for the arrest was a tip provided by a confidential informant ("CI"). Detective Constable Hicks ("Hicks") spoke to the CI shortly before the arrest was effected. Hicks believed Adams and Harkness to be in possession of cocaine and oxycodone following a car trip the two were in the process of taking from Ottawa to Portage Road in Petawawa some hours later.

[5] Hicks directed a fellow officer, Cst. Souci ("Souci") to effect their arrest. He did so at 14:45.

[6] Souci testified that he identified the driver, Adams, by obtaining her driver's licence. Souci stated it was his practice to ask for the driver's licence, but he made no note of having asked for it. He said he knew Harkness from prior dealings as an officer of 30 years' experience previously assigned to duties in Carleton Place.

[7] Souci contended that he read rights to counsel to Harkness and Adams together in front of Harkness' house on Portage Road in Petawawa. The officer said he did so while Harkness was seated on a lawn chair. Adams was on the doorstop of Harkness' residence.

[8] Souci located an oxycodone pill in Adams' purse during a search incident to her arrest. In Harkness' pocket, he located 52 eight milligram tablets of oxycodone in a pill bottle for which his son, John A.D. Harkness, had been prescribed 42 such pills that same day in Ottawa (i.e. July 26th, 2017).

[9] Souci transported Harkness to the police detachment. Upon arrival of a female officer, on scene, one Cst. Kutschke, likewise Adams was taken to the detachment.

[10] There, Adams and Harkness were interviewed by Hicks. During the statement taken from Adams, which was video and audio recorded, Adams claimed that she did not understand her right to speak to a lawyer. Hicks continued his questioning of her in any event.

[11] From the impounded vehicle, Hicks seized a cell phone off the passenger seat. He believed the cell phone belonged to Harkness. The officer conducted what he characterized as a 'cursory search' of the phone, which was not password protected.

[12] Hicks photographed 8 texts over the span of approximately four minutes between 5:26 and 5:30 p.m. One of the texts received September 21st read as follows:

"I guess that's a no eh. All out for now?"

The next text sent from that phone on September 21st read as follows:

"Mike u owe me a few bucks bud it was 200, B4 last batch from Greg and B4 Jack."

[13] This text exchange was set out in an Information to Obtain a Warrant to Search pursuant to s. 487 of the Criminal Code dated December 12, 2016. Hicks sought the warrant in order to search the phone more fully – believing its contents would afford evidence of trafficking by both Harkness and his son, John A.D. Harkness. The Warrant to Search was granted on December 13, 2016.

[14] Hicks prepared a Report to a Justice dated October 11, 2016 for the property seized from Harkness on September 26, 2016 – the date of his arrest.

[15] Hicks filed a second Report to a Justice on May 2, 2017. He explained that on December 13, 2016, he did a search of the cell phone. Photos of text messages displayed on the phone were taken. Any available data on the phone was also downloaded.

Issues

[16] In the blended Charter Application voir dire/trial, counsel for Adams and Harkness challenged the basis for the arrest of both co-accused. Counsel for Adams argued that:

a) there were no reasonable and probable grounds for Adams' arrest;

b) the search of her purse as an incident to Adams' arrest was in violation of her sections 8 and 9 Charter rights – to be free from unreasonable search and seizure and not to be arbitrarily detained, and

c) the s. 10(b) Charter right to counsel of Adams was violated when Cst. Hicks continued questioning her at the detachment, when she claimed she did not understand her right to counsel.

[17] Counsel for Harkness contended that:

a) The arrest of Harkness was unlawful as it lacked reasonable and probable grounds to underpin it;

b) The search of the cell phone was warrantless and thus unreasonable as it was not a search truly incidental to arrest;

c) The warrant to search the phone ought not to have been granted, since without the warrantless 'cursory' search, the grounds to issue the warrant would not exist; and

d) The failure to file Reports to Justice as soon as practicable resulted in further s. 8 Charter violations for Harkness.

[18] The Crown countered that:

a) Hicks directed the arrest by Souci, who properly confirmed he was apprehending his intended targets;

b) Hicks had formed reasonable and probable grounds to order the arrest of Adams and Harkness based on the tip supplied by the C.I;

c) the tip was compelling;

d) the C.I. was credible; and

e) the information the C.I. provided was corroborated.

[19] The Court is thus called upon to resolve the following issues:

a) Did Souci/Hicks have reasonable and probable grounds to arrest Adams and Harkness?

b) Was the information supplied by the C.I. compelling?

c) Was the C.I. credible?

d) Was the information supplied by the C.I. corroborated?

e) Was Adams' right to counsel violated?

f) Was the warrantless search of the cell phone truly incidental to arrest?

g) Assuming his arrest was unlawful, would reasonable grounds have existed in any event to issue a Warrant to Search the phone?

h) What was the effect of any failure to file the Reports to Justice as soon as practicable?

i) If Adams' and Harkness' Charter rights were violated, should the evidence obtained as a result be excluded under s. 24(2) of the Charter?

The Law

Reasonable and Probable Grounds to Arrest

[20] The seminal case for understanding the meaning of reasonable and probable grounds to arrest is R. v. Storrey, [1990] 1 S.C.R. 241. Cory J. explained at paragraph 16:

[16] There is an additional safeguard against arbitrary arrest. It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest. See R. v. Brown 1987), 33 C.C.C. (3d) 54 (N.S.C.A.), at p. 66; Liversidge v. Anderson, [1942] A.C. 206 (H.L.), at p. 228.

[21] In this case, the sole basis for the arrest and search of Adams and Harkness is the information received from the CI by Hicks and relayed to Souci. In such a situation, Wilson J. framed the analysis for testing the CI tip in R. v. Debot, [1989] 2 SCR 1140 at paragraph 53 as follows:

[53] In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

Was the Tip Compelling?

[22] At paragraph 55 of Debot (supra), Wilson J. listed a number of factors for consideration in determining whether a tip is "compelling." They include:

a) Was it sufficiently specific to warrant the attention of the authorities?

b) Did it identify the participants and/or the courier?

c) Did it name the location of the transaction?

d) Did it provide the time of day when the transaction was to occur?

e) Did it supply the basis for the assertions?

f) Did it take the form of bald conclusory statements?

g) Did it rise above 'mere rumour of gossip'?

[23] In R. v. Basset [2008] O.J. No. 3456 (SCJ), Pomerance J. addressed the inherent weakness in a CI tip where possession of a particular item is but a "possibility." Her Honour wrote at paragraph 16:

[16] Was the tip in this case compelling? Constable Cox had information that was at least two days old indicating that there was a "possibility" that the accused might be in possession of a firearm. This information was vague, speculative and lacking in detail. It was impossible for the officer to discern whether it was based on concrete knowledge or rumour and gossip. Moreover, the tipster spoke of the "possibility" that the accused was in possession of a weapon. The police are not entitled to act on possibilities. The standard for arrest - reasonable grounds to believe - requires a showing of credibly based probability. This standard could not be met given the very language of the tip.

The Credibility of the CI

[24] In R. v. Debot (supra), Wilson J. at paragraph 59 posited the following line of inquiry to assess the CI's credibility:

a) Was the CI paid for the information?

b) Did the CI have pending charges or an outstanding investigation?

c) Did the CI have a track record for helpful information leading to arrest and conviction of those implicated?

[25] Pomerance J. in R. v. Basset (supra) at paragraphs 20–21 offered her own cogent observations on assessing a CI's credibility. Her Honour reasoned:

[20] The last criterion to be discussed is the credibility of the source. This is the only criterion that has any potential application in this case. The Crown argued that Constable Cox was entitled to rely on the tip because the informant had provided reliable information in the past. It is not clear to me that an informant's "track record," standing alone, can elevate a vague and unconfirmed tip to the status of reasonable grounds. In any event, there was no evidence to indicate the nature and extent of the informant's prior cooperation with the police, and therefore, no ability to conduct an independent assessment of the issue. The assertion of past reliability was, itself, a conclusory statement that did little to buttress the reliability of the tip.

[21] Even if the informant was a credible person, there was nothing to indicate that the report was based on firsthand knowledge as opposed to information passed on by others. In other words, the officer knew the identity of the messenger, but he did not know the identity of the source. Credibility cannot be assessed if the origin of information is unknown. For this reason, even the credibility criterion cannot justify reliance on the tip in this case.

[26] In certain instances, a CI's past reliability can weigh in favour of his or her credibility relating to a 'triggering' tip. A pointed out by the Court of Appeal for Ontario in R. v. Zettler [2015] ONCA 613, some tipsters are truly "top notch," thus their supplied information may not demand the same level of verification:

Tips from proven reliable informants require less corroboration than tips from an anonymous source or an untried informant: (see R. v. Whyte [2011] ONCA 24 at paragraph 30.)

Corroboration of the Tip

[27] In Debot at paragraph 63, Wilson J. clearly articulated that it will not be necessary to confirm each detail in an informant's tip so long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence. She explained:

". . .The level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed, or where fewer details are provided, and the risk of innocent coincidence is greater."

Understanding the Right to Counsel

[28] In R. v. Willier, McLachlin, C.J. with Charron, J. addressed the importance of understanding one's right to counsel. They held:

[31] The informational duty imposed on the police is relatively straightforward. However, should a detainee positively indicate that he or she does not understand his or her right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitate that understanding: R. v. Evans, [1991] 1 S.C.R. 869.

Warrantless Search of Cell Phones

[29] In R. v. Fearon 2014 SCC 77, [2014] 3 S.C.R. 621, Cromwell J. emphasized the importance of a careful application of the common law rules and restrictions which flow from searches of cell phones as an incident to arrest. At paragraphs 79-83, he stated:

[79] The law enforcement objectives served by searches incident to arrest will generally be most compelling in the course of the investigation of crimes that involve, for example, violence or threats of violence, or that in some other way put public safety at risk, such as the robbery in this case, or serious property offences that involve readily disposable property, or drug trafficking. Generally speaking, these types of crimes are most likely to justify some limited search of a cell phone incident to arrest, given the law enforcement objectives. Conversely, a search of a cell phone incident to arrest will generally not be justified in relation to minor offences.

[80] A further modification is that the third purpose for which searches incident to arrest are permitted — the discovery of evidence — must be treated restrictively in this context. The discovery of evidence, in the context of a cell phone search incident to arrest, will only be a valid law enforcement objective when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. Only in those types of situations does the law enforcement objective in relation to the discovery of evidence clearly outweigh the potentially significant intrusion on privacy. For example, if, as in this case, there is reason to think that there is another perpetrator who has not been located, the search of a cell phone for that purpose will be truly incidental to the arrest of the other suspects. As Det. Nicol testified, there were matters that needed to be followed up immediately in this case. If, on the other hand, all suspects are in custody and any firearms and stolen property have been recovered, it is hard to see how police could show that the prompt search of a suspect's cell phone could be considered truly incidental to the arrest as it serves no immediate investigative purpose. This will mean, in practice, that cell phone searches are not routinely permitted simply for the purpose of discovering additional evidence. The search power must be used with great circumspection. It also means, in practice, that the police will have to be prepared to explain why it was not practical (and I emphasize that this does not mean impossible), in all the circumstances of the investigation, to postpone the search until they could obtain a warrant.

[81] The approach taken by the trial judge in D'Annunzio is instructive. The accused was arrested for sexual assault immediately after a young girl complained that he had inappropriately touched her in a grocery store. A search incident to that arrest discovered a cell phone. The officer seized it and searched for photos or videos of a sexual nature that were related to the offence, and for other inappropriate sexual content. At trial, the accused challenged the admissibility of two photos and a video found on the phone during this search. The trial judge ruled that the search was not truly incidental to the arrest. The search was "not done to further a legitimate purpose incidental to [the] arrest. . . . The cell phone was in the possession of the police at all times and there was no urgency": paras. 23-24. To put this differently, the prompt search of the cell phone was not sufficiently linked to an important law enforcement objective.

[82] Finally, officers must make detailed notes of what they have examined on the cell phone. The Court encouraged this sort of note keeping in Vu in the context of a warranted search: para. 70. It also encouraged that notes be kept in the context of strip searches: Golden, at para. 101. In my view, given that we are dealing here with an extraordinary search power that requires neither a warrant nor reasonable and probable grounds, the obligation to keep a careful record of what is searched and how it was searched should be imposed as a matter of constitutional imperative. The record should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. After-the-fact judicial review is especially important where, as in the case of searches incident to arrest, there is no prior authorization. Having a clear picture of what was done is important to such review being effective. In addition, the record keeping requirement is likely to have the incidental effect of helping police officers focus on the question of whether their conduct in relation to the phone falls squarely within the parameters of a lawful search incident to arrest.

[83] To summarize, police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with s. 8 where:

(1) The arrest was lawful;

(2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

(a) Protecting the police, the accused, or the public;

(b) Preserving evidence; or

(c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;

(3) The nature and the extent of the search are tailored to the purpose of the search; and

(4) The police take detailed notes of what they have examined on the device and how it was searched.

Assuming the Search of the Cellphone was Unlawful, did Grounds Exist for the J.P. to Issue a Warrant to Search?

[30] In R. v. Ricketts [2000] O.J. No. 1369, the Court of Appeal for Ontario at paragraph 18 addressed the effect of the acquisition of information as a result of a Charter violation. The Court held:

[18] Where the police rely on information in their possession as a result of a Charter violation to obtain a search warrant, the court must decide whether the warrant could properly have been granted based on information other than that secured by a constitutional violation: R. v. Grant (1993), 84 C.C.C. (3d) 173 at 195 (S.C.C.). In making that evaluation, the court will look at the remaining material in the information used to obtain the search warrant as modified or augmented on the exclusionary hearing at trial.

Failure to File as Soon as Practicable a Report to Justice

[31] In R. v. Garcia-Machado 2015 ONCA 569, [2015] O.J. No. 4146 (Ont. C.A.), Hoy A.C.J.O. expounded on the consequences of a failure by police to comply with s. 489.1(1) of the Criminal Code. She held at paragraphs 44–48:

[44] The question on this appeal is whether the Constable's failure to comply with the requirements in s. 489.1(1) to make a report to a justice as soon as practicable also rendered the continued detention of a seized item unreasonable and therefore contrary to s. 8 of the Charter.

[45] I conclude that the answer to that question is "yes". As I have explained, it is clear that an individual retains a residual, post-taking reasonable expectation of privacy in items lawfully seized and that Charter protection continues while the state detains items it has taken. Sections 489.1(1) and 490 govern the continued detention by the state of the items seized and, I conclude, the requirement in s. 489.1(1) to report to a justice as soon as practicable plays a role in protecting privacy interests. The Constable's post-taking violation of s. 489.1(1) by failing to report to a justice for more than three months after seizure of the blood and hospital records compromised judicial oversight of state-detained property in which the appellant had a residual privacy interest. It therefore rendered the continued detention unreasonable and breached s. 8. The fact that a person may have a diminished reasonable expectation of privacy after a lawful, initial police seizure and that in a particular case there may have been virtually no impact on that expectation will be important factors in the analysis under s. 24(2) of the Charter. However, they will not render continued detention after a clear violation of the requirement in s. 489.1(1) to report to a justice as soon as practicable reasonable.

[46] It is established law that in order to be reasonable, a seizure must be authorized by law: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278; R. v. Caslake, [1998] 1 S.C.R. 51, at para. 10. If seized property is detained without complying with s. 489.1(1), then its continued detention is not authorized by law: Backhouse, at para. 115.

[47] Although one could conceive of provisions governing retention that would not relate to the protection of privacy, ss. 489.1(1) and 490 were enacted to "regulate state activity that interferes with privacy interests", as Rosenberg J.A. explained in Backhouse, at para. 110:

Although s. 489.1 was an early enactment after proclamation of the Charter it reflects Charter values and principles. It favours judicial supervision. It is part of a scheme that includes s. 490 and that is designed to regulate state activity that interferes with privacy interests. [Emphasis added.]

[48] As I explain below, the requirement in s. 489.1(1) to report to a justice as soon as practicable plays a role in protecting an individual's residual, post-taking reasonable expectation of privacy. I therefore conclude that the Constable's clear failure to comply with that obligation breached s. 8.

Exclusion of Evidence under s. 24(2) of the Charter

[32] Section 24(2) of the Canadian Charter of Rights and Freedoms provides:

"Where in a proceeding under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice in disrepute."

[33] Since Grant, a Court considering the exclusion of evidence must assess:

1. the seriousness of the Charter infringing state conduct;

2. the impact admission of the evidence would have on the Charter protected interests of the accused; and

3. society's interest in an adjudication of the trial on the merits.

Analysis

Did Souci/Hicks have reasonable and probable grounds to arrest Adams and Harkness because the tip itself was compelling?

[34] Hicks knew the following about the targets, Adams and Harkness, as a result of the information supplied to him on September 26, 2016 by the CI:

a) the names of the suspected drug traffickers (ie. Adams and Harkness);

b) the make and model of the vehicle in which they would be travelling (ie. Silver Mazda 3);

c) the type of illicit drugs they may 'possibly' be in possession of (ie. cocaine and oxycodone);

d) the origin of their travel could 'possibly' be Ottawa where the drugs would have been collected; and

e) the destination to which they could 'possibly' be headed (ie. Harkness' residence on Portage Road in Petawawa)

[35] Critically missing from the CI's tip, or at least insofar as it could be related by Hicks in his evidence, was any indication of the source of the CI's knowledge. The 'compelling' nature of the information, or lack thereof, is thus put to the test, when viewed in this manner. Jennis J. in R. v. Smith [2009] O.J. No. 5767 at paragraph 16 commented:

[16] Turning from the assessment of the informant to the assessment of the information, there was no indication as to the informant's source of knowledge – whether it was personal or obtained from others. There was a paucity of details and specifics surrounding the assertion the accused was trafficking cocaine. Other than the general assertion that the accused trafficked in cocaine and had a firearm, the only other information provided was a specific description of the vehicle used. There were no details as to specific transactions such as dates or amounts involved or, in fact, whether the accused was in possession of any cocaine currently. There was no other information from any other source confirming the informant's tip. The information regarding the car was, at best, neutral as described in R. v. Calderon.

[36] Where the CI speaks of the possibility that Adams and Harkness would be in possession of cocaine and oxycodone, at its core, the supplied information is vague and speculative. It is impossible for the objective observer to know whether it is based on concrete, firsthand knowledge, or mere rumour and gossip. The police are not permitted to act on possibilities. The standard for arrest, as aptly stated by Pomerance J. in Basett (supra), is credibly based probability. On a complete assessment of Hick's evidence, there were clearly only possible grounds to arrest Adams and Harkness. This does not suffice at law and results in a breach of their s.9 rights under the Charter.

Can the Lack of a Compelling Nature to the Tip Be Compensated by the Credibility and Reliability of the CI?

[37] Hicks testified that the CI in this case was used successfully on greater than two occasions. I am not certain what this means? Did the CI provide helpful information on three occasions? Or perhaps four? Or was it just 2.5? Hicks' cryptic answer makes me wonder if the police statistics are kept like quarterback sacks in the NFL.¹

[38] Hicks did nevertheless go on to explain that the CI's past use resulted in arrests and convictions. The CI received a monetary reward for such success. The police, it would seem, only pay where there is good value in the information received.

[39] Hicks added that this CI has never provided information which turned out to be false or misleading. Further, s/he had knowledge of the specific practices of the drug culture in Renfrew County, where Adams and Harkness live. The CI was also 'numbered'. Before s/he could receive this designation, s/he had to go through a vetting process by Hicks' OPP superiors at the "Provincial Operations and Intelligence Bureau." The CI enjoyed this distinction for more than two years. Presumably this enhances the CI's credibility and reliability.

[40] Under cross-examination, Hicks was reluctant to acknowledge that the CI's information was only half correct. Souci and the subsequent K9 search of Adams' vehicle turned up no cocaine. Nor was any more drugs found than was in Adams' purse and Harkness' pocket upon their arrest. Relatively speaking, the amount of drugs located and seized was small. There was nothing found secreted in the car.

[41] In R. v. Garofoli, [1990] 2 S.C.R., 1421, Sopinka J. cautioned at paragraph 68:

"The results of the search cannot, ex post facto, provide evidence of reliability of the information."

[42] Taking all of this into account, I am only somewhat persuaded that Hicks was justified in placing some reliance upon the CI's reputation.

Was There Any Corroboration of the CI's Tip?

[43] There was little in the way of attempts by police at corroboration of the CI's information. In essence, the tip was 'hot off the wire' and required immediate police action. There was really no time for checks and verifications to be done.

[44] Hicks did nevertheless run an MTO² search on Adams and learned that she had registered to her a silver Mazda 3. A C.P.I.C.³ inquiry done on Harkness revealed a 2006 drug conviction; but it was dated and related to marijuana possession.

[45] No surveillance was conducted of Adams and Harkness. Hicks decided against any attempt to do an undercover purchase of illicit drugs form either Adams or Harkness. Hicks did not seek out any confirmation of drug trafficking involvement by Adams and Harkness from any other CI's he handled.

[46] Overall, my assessment of the corroboration factor is that it was quite weak.

Was Adams Right to Counsel Violated?

[47] Shortly after observing Adams and Harkness in the suspect vehicle at 14:44 on September 26, 2016, Souci testified that he arrested both at 14:45. Adams was permitted to seat herself in a doorframe, while Harkness was in a lawnchair. Souci surmised that he read rights to counsel to Adams and Harkness simultaneously between 14:46 and 14:47 from his standard OPP issued card. Essentially, according to Souci, Adams agreed with what Harkness said in response to the question of whether he wished to contact a lawyer. (ie. that he and therefore she did not want to seek counsel at that time.) No specific response from Adams to either understanding or declining the right to counsel was recorded in Souci's dutybook.

[48] At 15:43, Souci states those rights were re-read by Hicks to both Adams and Harkness shortly after their arrival at the detachment. Hicks wished to conduct interviews of both, should they choose to make statements.

[49] Under cross-examination, Hicks denied that he read rights to counsel to Adams at the police station. He stated however that when he attempted to confirm that Adams had had her rights to counsel read to her earlier, she did express some lack of understanding. Hicks put the question to Adams, "You understand your rights to counsel?" Her response was, "Not really, no." In spite of this, Hicks proceeded to question Adams further.

[50] He did not explain to her the availability of counsel of choice or free advice from duty counsel. He did not advise her of his duty to hold off until she made her decision whether to contact counsel or not.

[51] At the point where Adams stated she did not really understand, Hicks had a positive obligation to ensure Adams appreciated her right to counsel before taking any statement from her. This amounted to a wilful breach of Adams' s.10(b) Charter right. Hicks did nothing to try to bring home to Adams her immediate right to counsel before potentially incriminating herself. Hicks appeared intent on probing Adams for information to further his collection of evidence from her. If not wilful, Hicks behaved in a manner that was blissfully ignorant of his obligation to halt his investigation, until Adams knew the meaning of and understood her right to counsel. Accordingly, Adams' s.10(b) Charter right was violated.

Was the Search of Harkness's Cell Phone Truly Incidental to Arrest?

[52] The short answer to this question is no. If there were no reasonable and probable grounds to arrest Harkness in the first place, there is no right to search as an incident to that arrest. The resulting "cursory search" of the cell phone, as Hicks dubbed it, was a violation of Harkness' s.8 Charter right to be free from unreasonable search and seizure.

[53] Even if the search had been well grounded, the manner in which Hicks went about it was not at all reasonable. In Fearon (supra), Cromwell J. spoke of the importance of restrictively interpreting the third purpose of a search incident to arrest (ie. the discovery of evidence). The search will only be valid if the investigation will be stymied or significantly hampered absent the ability to promptly look at the contents of a cell phone. "Cursory searches" of the type conducted by Hicks must not become routine simply for the purpose of possibly discovering additional evidence. The potential for a significant intrusion on personal privacy is otherwise too great.

[54] In this case, Harkness was in custody, as was his co-arrestee, Adams. The cell phone in question was secured. Police were going to keep it, and not return it, if it had any evidentiary value. However, Hicks could only venture an educated guess that it did. He needed to peruse it first to see, if it was indeed used for nefarious, as opposed to innocuous purposes. He had no reasonable grounds to believe it was being used for drug trafficking. Without knowledge of its actual contents, he would have had to attempt to persuade a justice of the peace that his experience endowed him with reasonable grounds in the circumstances of Harkness' arrest to conclude that:

a) Harkness was a drug trafficker, and

b) the cell phone seized must be a tool of his trade.

[55] On the most base application of logic to the propositions in a) and b) above, a) was far from established, and b) would not always follow a). As strong as Hicks' hunch was, there were no reasonable grounds for believing the cell phone contained evidence of drug trafficking. The ex post facto assessment of the accuracy of Hicks' hunch does not forgive the breach of Harkness' s.8 Charter right.

Did Sufficient Grounds Exist for the Issuance of the Warrant to Search the Cell Phone Absent the Information Obtained from Hicks' Cursory Search?

[56] I will draw upon certain assertions made in the Information to Obtain ("ITO") to which Hicks swore in seeking the Warrant to Search the cell phone. In paragraph 4.2, he stated he investigated the transportation of drugs by Harkness from Ottawa to Pembroke on September 26, 2016, and was able to corroborate it. Clearly, little was done to corroborate the alleged criminal activity of Harkness prior to his arrest, where police acted on a fresh CI tip. Hicks and Souci conceded they did not actually know where Adams and Harkness came from. The statement made by Hicks is thus misleading.

[57] Paragraph 5.7 of the ITO addresses the "cursory search" Hicks conducted of the cell phone located on the passenger seat of the vehicle. As earlier mentioned, the "cursory search" was not a search truly incidental to arrest. It was an attempt to discover further evidence in order to provide Hicks with a basis to seek a search warrant for the phone. Without the inclusion of the texts viewed by Hicks the day of Harkness' arrest to indicate the phone was being used to communicate for purposes of drug trafficking, I cannot be satisfied that the justice would have issued the warrant. The text from September 21st asking, "All out for now?" and the response, "Mike u owe me a few bucks bud it was $200. B4 last batch of greens from Greg and B4 Jack" are highly suggestive of drug trafficking. But with those texts excised, and in light of the unlawful arrest of Harkness, what am I left with to supply grounds for the issuance of the search warrant for the phone? In my view, there was very little. Further, the arrest was unlawful, so what basis was there for a "cursory search?" There was none.

[58] The ITO at paragraph 5.7 is inaccurate as well in that Hicks contends he stopped searching the phone upon seeing the September 21st text exchange. In reality, he continued searching for four more minutes and took photos of the phone's contents. The claim to have stopped searching after the discovery of the one aforementioned text exchange is incorrect. Careful note-taking may have prevented this error on his part.

[59] At paragraph 6.3 of the ITO, Hicks speaks of his investigative experience. He contends:

". . . it is common for people involved in drug production, drug trafficking and debt collecting to use text messages as a means to communicate and conduct transactions of amounts of drugs being produced; quantities of drugs that are available, prices of drugs, debts to be collected, locations to meet and identify the person or persons that are involved."

All of this may well be true, but it is difficult to know whether the reviewing justice, absent the one text exchange from September 21st, would have been persuaded to issue the Warrant to Search, based solely on Hicks' experience as a drug investigator. I am doubtful that his investigative experience alone would have satisfied the Justice of the Peace that the phone is likely a tool of the drug trafficking trade in this case. Harkness offered an innocent explanation for why he was holding a prescription pill bottle for oxycodone in an amount in excess of what was prescribed to his son on September 26, 2016. Hicks may have dismissed the story told by Harkness the day of his arrest – namely, that he was holding his son's prescription for him, because he lived in a bad part of Ottawa. One would think Hicks' requirement to be full, fair and frank would have obligated him to say so, if he did. Indeed, three days after Harkness' arrest, his son attempted to reclaim the pills. However, Hicks did not mention any of this in his ITO.

[60] In any event, the statement given by Harkness was a direct by-product of his unlawful arrest by Souci upon Hicks' direction. Access to Harkness' cell phone would not exist but for his unlawful arrest.

[61] Upon my review of the remainder of the ITO, with the reference to the text exchange set out in paragraph 5.7 excised, I find that there would not have been reasonable grounds for the issuance of the Warrant to Search. Accordingly, the search of the phone was warrantless, unreasonable and in breach of Harkness' s.8 Charter right.

What was the Effect of the Failure to File the Reports to Justice As Soon As Practicable?

[62] In his evidence, Hicks acknowledged his obligation to promptly prepare a Report to Justice for items seized as an incident to arrest or under authority granted by a Warrant to Search. Further, he acknowledged he did not file the Reports for some time. He did not explain why there was a delay. Nor did he suggest that the Reports were filed "as soon as practicable."

[63] The continued detention of the cell phone was thus not compliant with the Criminal Code. Harkness' s.8 Charter right was violated as a result, but there was an investigative purpose to Hicks' retention of the phone. The cell phone would have provided helpful evidence to prosecute Harkness, but as I explained earlier, it was not seized as an incident to a lawful arrest. Nor would the Warrant to Search have issued upon excision of the critical text exchange of Sept. 21.

Exclusion of Evidence under s.24(2) of the Charter

The Seriousness of the Charter Infringing State Conduct

[64] The first and most serious of the Charter breaches occurred with the arrest of Adams and Harkness based on the dubious CI tip. As targets, Adams and Harkness were possibly going to be in possession of oxycodone and cocaine. The arrest of Adams and Harkness was effected based on a possibility – not credibly based probability. The further evidence gathered by Hicks to incriminate Harkness all flowed from the illegal arrest. The police had no right to seize the phone, let alone conduct a "cursory search" of its contents. The Warrant to Search did not undo any of the constitutional wrongs done by Hicks. The Warrant would not have been issued but for those wrongs. Adams' and Harkness' rights under s.8 & 9 of the Charter were violated as a result of their arrest, and the searches of their persons and immediate surroundings.

[65] Additionally, Hicks should not have continued questioning Adams when she stated she did not understand her right to counsel. In my view, Hicks persisted in his questioning of Adams knowing full well what stopping the interview to allow Adams an opportunity to speak to counsel may have led to. Accordingly, the s. 10(b) Charter right of Adams was egregiously contravened.

The Impact the Admission of the Evidence would have on the Charter Protected Interests of the Accused

[66] The impact of the admission of any evidence obtained from Adams and Harkness on their Charter protected interests would be significant. Their liberty was curtailed. Their right to privacy was invaded. Both were subject to arrest and detention for a period of several hours. A woman's purse contains in many instances items at the core of her privacy interests. The cell phone, in the modern era, is the receptacle of many of the nearest and dearest things a person can hold to heart – photos, documents, emails, texts.⁴ Any justification for an interference into those sanctums (i.e. purses and cell phones) requires much more than police could muster based on the quality of this CI's tip.

Society's Interest in an Adjudication of the Merits

[67] The drugs and the inculpatory texts are reliable forms of evidence. There can be little debate on this point. To admit those pieces of evidence would assist the truth finding function of the Court. They certainly would allow for a determination of the case to be made on its merits.

Weighing the Factors

[68] There is no mathematical formula to be applied in weighing the factors that militate for and against the admission of each item of evidence obtained in infringement or denial of Charter rights. Qualitatively, each factor must be assessed.

[69] Upon my overall review of the factors, I have to bear in mind the long-term repute of the administration of justice. In doing so, I conclude that the admissions of the drugs and the texts would undermine public confidence in the justice system. I take into account the ease with which police can act on CI tips to immediately arrest members of the public. We will rarely, if ever, hear of those who were arrested or detained based on bad information. No charges would ensue. No prosecution would follow. No record of the number of unwarranted detentions would be kept.

[70] It is incumbent upon police to justify and articulate their grounds for stopping people and arresting them. The litmus test to be met for police is one of 'credibly based probability – that these detained individuals likely were committing crimes – not 'possibly' were.

Conclusion

[71] Under the circumstances, I will exclude the evidence of the drugs seized from the purse of Adams and the pocket of Harkness, as well as the data taken from the cell phone located on the passenger seat of the vehicle in question.

December 12, 2017

The Honourable Justice M. March

Footnotes

¹ National Football League

² Ministry of Transportation (Ontario)

³ Canadian Police Information Centre

⁴ After writing but before the issuance of this decision, the Supreme Court of Canada released its judgment in R. v. Marakah [2017] S.C.C. 59. The dicta of McLachlin C.J.C. at paras 31-37 confirm the strong privacy interest which attaches to electronic conversations. Indeed, texting is fast becoming the preferred method of interpersonal discussion in the modern era, if it is not already. Many people seem to prefer it to talking over the telephone.