Ontario Court of Justice

Date: January 31, 2018

Court File No.: Kitchener 17-4616

Between:

HER MAJESTY THE QUEEN

— and —

JOSHUA DeSILVA

— and —

CYNTHIA DeSILVA

Before: Justice Scott Latimer

Heard on: November 20, December 4, 22, 2017, January 12, 30, 2018

Reasons for Decision released on: January 31, 2018

Counsel

Aaron McMaster — counsel for the Crown

Joshua DeSilva — on his own behalf

Cynthia DeSilva — on her own behalf

LATIMER J.:

I. Introduction

[1] Joshua and Cynthia DeSilva have brought applications to exclude the results of a production order issued by a Justice of the Peace on April 8, 2016 and executed on the Canadian Imperial Bank of Commerce. They seek exclusion pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms, alleging the seizure of financial information was unreasonable and contrary to their section 8 right against unreasonable search and seizure.

[2] The applicants' Charter claim has a number of elements. I have chosen to organize them as follows:

1. The affidavit contains material misrepresentations, errors and omissions that, once identified and excised, rob the document of the reasonable grounds required for issuance;

2. The affiant relied upon unconstitutionally obtained information, specifically information obtained extraterritorially without legal authority and/or international investigative support;

3. The affiant applied under the wrong production order subsection;

4. The order named the wrong individual to provide the records;

5. The records were provided more than sixty days after the order was executed.

[3] I have considered all issues raised during the course of this application, as I have considered the evidence adduced, specifically: the original application material, the in-court testimony of the affiant, Constable Kim Spitzig, the sub-affiant, Constable John Burke, and the documents that were referred to during cross-examination. These documents were made lettered exhibits during the course of this hearing.

[4] I have concluded that the production of banking records was obtained in violation of section 8 of the Charter. However, I am not satisfied that the reason for this violation – the unlawful inclusion of account particulars within the ITO – warrants exclusion of the evidence at trial. The evidence obtained will be admissible at trial. What follows are my reasons for reaching this decision, which I have structured under several sub-headings for narrative ease. I have attempted to balance the legalese commonly associated with these applications with more straightforward language in an attempt to explain why the law compels the decision I have reached in this case.

II. Applicable Law & Standard of Review

[5] A production order is a form of judicial preauthorization, in the same category as a search warrant or wiretap authorization. The review of such orders is governed by a case called R. v. Garofoli, [1990] 2 S.C.R. 1421, and the subsequent judicial decisions that have followed. The test I have to apply, as a reviewing judge, is the test articulated by Justice Sopinka of the Supreme Court of Canada, who wrote the relevant part of the Garofoli judgment. I am to determine whether the affidavit provided to the issuing Justice contained sufficient reliable evidence, such that I am satisfied that the authorizing Justice of the Peace could have concluded that the statutory prerequisites were established. Justice Watt, writing for the Court of Appeal in R. v. Mahmood, 2011 ONCA 693, 282 C.C.C. (3d) 314, at para. 99, helpfully explained the test as follows:

A reviewing judge does not substitute his or her view for that of the justice who issued the warrant. Rather, the reviewing judge considers the record before the issuing justice, the ITO, trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant: [citations omitted].

[6] This is a relatively narrow review power. I am not conducting a new hearing of the original application, nor am I substituting my own views for that of the issuing Justice of the Peace. The question is not whether I would have issued the order, but whether it could have been issued on the basis of the applicable record: R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148, at para. 69; see also R. v. Vigneswaralingam, 2017 ONCJ 640 at paras. 39-46. Because we are dealing with an order that has previously been authorized by a judicial officer, the applicants bear an onus under section 8 of the Charter to establish that the seizure of their financial records was unreasonable: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 83.

[7] The mechanism of review applicable to a Garofoli application – that is, how I am to assess the evidence during this hearing – was explained by the Court of Appeal in the relatively recent Nero decision. Justice Watt, writing for the Court, stated at paragraphs 71 and 72:

Like the authorizing justice, the reviewing judge is entitled to draw reasonable inferences from the contents of the ITO. That an item of evidence in the ITO may support more than one inference, or even a contrary inference to one supportive of a condition precedent, is of no moment. The inquiry begins and ends with an assessment of whether the ITO contains reliable evidence that might reasonably be believed on the basis of which the warrant or order could have issued: Morelli, at para. 40; Sadikov, at para. 88.

Inaccuracies and omissions in the ITO are not, without more, fatal to the adequacy of the material to establish the necessary conditions precedent: Garofoli, at p. 1452; Araujo, at para. 54; Pires; Lising, at para. 30.

III. The Hearing

[8] Both the applicants and the Crown filed material in advance of the hearing that helpfully focused the issues in dispute. The applicants requested, in writing, leave to cross-examine Constable Spitzig with regard to alleged errors and omissions in her affidavit, or information to obtain, which I will hereafter refer to as the ITO. I granted leave to cross-examine on the basis that the applicants had met the test articulated in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, 201 C.C.C. (3d) 449 at para. 3, specifically that there was "a reasonable likelihood that cross-examination of the affiant [would] elicit testimony of probative value to the issue[s] for consideration". Subsequently, I also granted leave to cross-examine a sub-affiant, Constable Burke, with regard to an email referred to in paragraph 31(b) of the ITO.

[9] Constable Spitzig testified and was cross-examined over three days; Burke for a much shorter period. Copies of the original production order application, including the ITO, were made exhibits, as were documents presented during cross-examination and relied upon by the applicants in their arguments.

[10] The ITO, summarily stated, refers to conduct, allegedly committed by the applicants, which amounts to criminal fraud. A charitable event was held in the community of Ayr, Ontario. The applicants were principal fundraisers. The event was intended to raise money for medical research with regard to Infantile Neuroaxonal Dystrophy, commonly referred to by the acronym, INAD. Approximately $10,000 was raised. Questions were subsequently raised regarding where the money in fact went. A police investigation followed. The production order in issue sought financial information located in bank accounts held by both applicants, and their daughter, at the Canadian Imperial Bank of Commerce ("CIBC").

[11] The principal, although non-exclusive, focus of cross-examination was on the affiant and sub-affiant's knowledge of, and references within the ITO to, the INAD researchers and their related fundraisers. What information did the affiant actually possess with regard to her stated conclusion that the raised money did not reach the doctors conducting INAD research? Was that conclusion available on the applicable evidentiary record?

[12] Before I can address whether this production order could have been granted, I need to determine what information was properly included in the ITO, and therefore what information exists on which to base a judicial decision.

A. Information obtained from outside Ontario

[13] As I earlier referenced, an aspect of a Garofoli hearing is the excision, or removal, of unconstitutionally obtained material from the ITO during the review process. The police cannot rely on illegally obtained evidence to support the obtaining of subsequent evidence. A helpful example of this process comes from the Supreme Court of Canada's decision in R. v. Kokesch, [1990] 3 S.C.R. 3, 61 C.C.C. (3d) 207. In that case, the police conducted warrantless perimeter searches of a home suspected of growing marijuana. They then relied upon their observations in a subsequent search warrant application to enter the home. The Supreme Court held that the occupants of the home had a reasonable expectation of privacy in the curtilage directly surrounding the dwelling-house. That privacy expectation, which is protected by section 8 of the Charter, was violated by the police entering the property and peering into the windows. The subsequent observations inside of the home were unconstitutionally obtained and were excised, or removed, from the ITO during the review process. The remaining information could not meet the statutory requirement of reasonable and probable grounds, therefore the Supreme Court found that the warranted search of the home was unreasonable.

[14] The applicants make a similar argument in this case. They identify the fact that the investigators, peace officers and members of the Waterloo Regional Police Service, spoke to and obtained statements from individuals who reside outside of Canada. They claim this exceeded the officers' jurisdiction and required either judicial authorization from the jurisdiction in which the witness resided, or police assistance from within that jurisdiction.

[15] I reject this argument for the following reasons. First, the purpose of section 8 of the Charter is to protect privacy interests. To make a constitutionally-significant claim with regard to police conduct, the applicants must establish that they have a privacy interest that was infringed by the officers' conduct. This threshold issue is referred to in the case law as establishing a reasonable expectation of privacy in the subject matter of the search: R. v. Marakah, 2017 SCC 59, 142 W.C.B. (2d) 490, at para. 10.

[16] Second, the applicants have not demonstrated that the officers' conduct in speaking to, and obtaining witness statements from, INAD-related researchers, fundraisers or other individuals outside of Ontario violated a Charter-protected privacy interest. The police were investigating a crime that allegedly occurred in the Waterloo Region. They are entitled – indeed, obligated – to seek out relevant information during the course of their investigation. The fact that witnesses may reside extraterritorially does not prevent the police from contacting those witnesses and asking them questions. The information obtained in this context – for example, from Patricia Wood and Kristen Phillips – does not give rise to a reasonable expectation of privacy on the part of the applicants. See, generally, Schreiber v. Canada, [1998] 1 S.C.R. 841, 124 C.C.C. (3d) 129 at paras. 30-31.

[17] The absence of any reasonable expectation of privacy means that the applicants have not established a basis to exclude the extraterritorially obtained information from the ITO during this review process. It will therefore remain for consideration later in these reasons.

B. Should any other information be excised or removed from the ITO?

[18] Section 487.014 of the Code requires that three things be established, on the basis of reasonable and probable grounds, before an order can be issued:

1. that an offence has been committed;

2. that information exists in the hands of a third party; and

3. that the information will afford evidence of the offence under investigation.

[19] With regard to the first statutory prerequisite, the core of the affiant's belief is that the money obtained from the fundraiser was obtained under deceit, falsehood or other fraudulent means; i.e. that the money raised was not actually provided for INAD research, nor was it ever intended to be. In the ITO, the affiant swears that the evidence provided demonstrates this belief on a reasonable basis.

[20] On the record before me, relatively few medical professionals were actively pursuing INAD research at the time of the allegations. Only two are named in the ITO – Dr. Paul Kotzbauer in the United States at Washington University in St. Louis, and Dr. Manju Kurian in the United Kingdom at University College London. Other individuals, such as Kristen Phillips and Patricia Wood, are documented in the ITO as being principal fundraisers for the INAD research effort.

[21] Patricia Wood is the president of NBIA Disorders Association, a non-profit organization located in the United States. As detailed in the ITO, she had contact with the applicants about fundraising at the end of 2014, but no money was ever provided to her organization. Her organization's last contact with either applicant was January 2015.

[22] On the basis of the ITO, and as confirmed in the supporting documentation made exhibits during the hearing, neither Patricia Wood nor Kristen Phillips ever received money from the applicants for INAD research. There is no direct evidence adduced regarding whether Dr. Kotzbauer, or the Washington University in St. Louis, ever received funds from the applicants via some other route. On the face of the ITO, however, it appeared, before cross-examination, that Constable Burke had recently received information directly from Dr. Kurian in the United Kingdom, where she advised that no money had been provided by the applicants. This reference was contained in paragraph 31(b) of the ITO.

[23] Constables Spitzig and Burke were both cross-examined by Joshua DeSilva regarding paragraph 31(b). That paragraph reads:

31. On February 16, 2016, I read the NICHE statement of Cst BURKE, who was assisting in the investigation, and learned that On February 3, 2016 he spoke with WOOD who provided a statement. Cst. BURKE is a peace officer employed by the Waterloo Regional Police Service (WRPS) holding the rank of Constable. Cst. BURKE indicated in his statement that he spoke to WOOD learned that:

b) An email conversation was obtained by Cst. BURKE where Dr. KURIAN confirmed with him that she never received money from the DeSILVAS.

[24] This paragraph can only reasonably be read to indicate that Constable Burke corresponded directly, by email, with the doctor and received a negative response regarding donation money from the applicants. As the amplified record demonstrates, this is inaccurate. Burke's NICHE statement, which I understand to be a summary of his investigative involvement and which was made an exhibit on this proceeding, was referring to Patricia Wood's statement, dated February 3, 2016, wherein she indicated that she had received such a "recent email" from Dr. Kurian. To the extent that paragraph 31(b) indicates that Dr. Kurian provided this information directly to Constable Burke, I excise that from consideration.

[25] There is also a further issue with regard to 31(b) – Dr. Kurian's email to Wood, dated January 15, 2016, only expressly references a lack of payment in 2014. There is no mention of 2015, the year in which fundraiser took place. This further alters the evidentiary picture presented to the issuing Justice – while the email itself was recent, the information obtained from Dr. Kurian does not expressly reference the time period in which the fundraiser occurred.

[26] Upon review, I consider the paragraph 31(b) errors to be non-deliberate on the part of the affiant, and capable of amplification: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, 252 C.C.C. (3d) 273, at paras. 42-43. Constable's Burke's NICHE statement is awkwardly worded regarding the source of the email. Wood's witness statement makes plain that she received the email in question. While the affiant, having reviewed Wood's statement during her preparation of the ITO, should have noticed this particular mistake, on the whole of the evidence I do not believe much turns on it. There is no particular significance to whether the email was to Burke or to Wood. What matters is that Dr. Kurian advised he received no money from the applicants.

[27] The "recent email" reference is of greater concern. While I do not believe it was intentionally done, this error is the result of sloppy drafting on the part of the affiant. Constable Spitzig should have examined the entirety of Burke's investigative file, not just the brief review contained in the NICHE statement. Such summary review of material risks exactly the type of error that occurred here. Given that there appear to have been at most three officers working on this investigation, reliance on Burke's NICHE statement is insufficient for the affiant to discharge her responsibilities to the administration of justice during this ex parte process. Greater diligence and thoroughness is expected by the Court.

C. Could the Order have been issued on the basis of the excised record?

[28] Returning to the first statutory pre-requisite for issuance – are their grounds to believe that an offence was committed? – the applicants' principal argument is that money could have gone to the INAD doctors without fundraiser involvement, and therefore the evidence, as amplified in this record, is insufficient to justify granting the order. As part of this argument, the applicant points to exhibit G, a letter received from Washington University at St. Louis on April 11, 2017, expressing thanks for a recent donation. While this letter may have relevance at trial, I do not see that it has much of a role on this review. It is information that post-dates the affidavit and investigation. It cannot be said that Spitzig should have been aware of a letter that was not yet in existence.

[29] What exhibit G does, however, is redirect focus back to the applicants' principal point – does the absence of direct information from the INAD doctors rob this evidentiary record of reasonable grounds to believe an offence has been committed? Again, while this argument may have relevance to a determination at trial, it is, as Justice Watt wrote in Nero, "of no moment" to the Garofoli analysis. The test is whether the record, taken as a whole, "contains reliable evidence that might reasonably be believed on the basis of which the warrant or order could have issued": Nero, at para. 71. In this regard, the question for me is not whether the affiant's inference – that because no money went to the fundraisers, no money made it to the doctors – is the only one available; the question is whether that is a reasonable inference flowing from the contents of the ITO. I conclude that it is, and that the issuing Justice, on the basis of the current record, could have concluded, on the RPG[1] standard, that a fraud offence did occur.

[30] My conclusion is based on the following considerations:

1. Joshua and Cynthia DeSilva, a married couple, were principal fundraisers for the event in question. Following the event, the proceeds raised were given directly to Cynthia DeSilva.

2. There is no evidence that any of the other Ayr fundraisers were ever expressly told where the money subsequently went, despite multiple inquiries having been made in this regard.

3. There are two principal fundraising agencies for INAD research – NBIA Disorder Association (run by Patricia Wood) and Ainsley's Angels (run by Kristin Phillips). Despite prior contact between Wood, Phillips and the DeSilvas, neither agency was contacted regarding the transfer of raised funds following the August 22, 2015 "Pop to Stop INAD" fundraiser. An issuing Justice could have relied on the absence of any post-fundraiser contact between the applicants and these INAD research-related agencies in concluding that they were not contacted because the money was not actually going to INAD research.

4. Despite the absence of an express statement from Dr. Kurian, an issuing Justice could have relied upon the absence of any mention of funds received in Kurian's email to Wood (exhibit M) in concluding that no money was ever provided to Dr. Kurian from the applicants. The absence of any direct information from Dr. Kotzbauer does not erode this possible inference in the context of this particular evidentiary record.

5. Joshua DeSilva's prior fraud conviction, albeit from twenty years ago, could potentially possess some evidentiary weight in this context. While incapable of establishing grounds on its own, it could have been considered by the issuing Justice, along with the other available evidence, in determining whether grounds had been established: R. v. Debot (1986), 30 C.C.C. (3d) 207 at 220-221 (Ont. C.A.), aff'd, [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193, at 215-216.

[31] In conclusion on the first requirement, whether there is available information that would establish, to the RPG standard, that an offence has been committed, I am satisfied that it would have been open to the issuing Justice to reach such a conclusion on the basis of the current evidentiary record, post-excision and amplification.

[32] Regarding the location of information, there is no debate on this application that the ITO disclosed evidence that financial documents were held by CIBC. Whether that information was lawfully obtained prior to its inclusion in the ITO is discussed below in section III (D).

[33] This leaves the third requirement, that the ITO disclose a reasonable basis to believe that seizure of the financial records will afford evidence respecting the commission of the offence. The term "afford evidence" has been given a broad interpretation by the Supreme Court of Canada: see Canadian OxyChemicals Ltd. v. Canada (A.G.), [1999] 1 S.C.R. 743, 133 C.C.C. (3d) 426, at paras. 22-27.

[34] The ITO in the present case does not directly state why the financial records will afford evidence of the fraud under investigation. The failure of the affiant to articulate, in express language, a perceived linkage between the documents sought and the ongoing criminal investigation could, in some circumstances, create an unlawful search or otherwise invalidate a production order. At minimum, it is a clear drafting error. However, in the circumstances of this case, on this evidentiary record, it does not prohibit an authorizing Justice from concluding, by inference and upon a review of the entire ITO, that the documents sought will afford evidence respecting the commission of the fraud under investigation.

[35] In R. v. Sanchez et al, [1994] O.J. No. 2260 (Gen. Div.), 93 C.C.C. (3d) 357 at 363-365, Justice Casey Hill provides an authoritative restatement of the relevant principles at play during the review of a judicial authorization. At page 365, Justice Hill explains how inferential reasoning is relevant in this context:

A search warrant information draftsperson or affiant is obliged to state investigative facts sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence, and, that the things in question will be discovered at a specified place. An issuing justice is entitled to draw reasonable inferences from stated facts and an informant is not obliged to underline the obvious: [citation omitted] In this regard, some deference should be paid to the ability of a trained peace officer to draw inferences and make deductions which might well elude an untrained person: [citations omitted]. Probable cause does not arise however from purely conclusory narrative. A search warrant information is not a Crown brief and the affiant is not obliged to record every minute step taken in the course of the investigation: [citations omitted].

[36] I am satisfied that a Justice can infer from the evidence in the ITO that the banking records requested would afford evidence of the fraud offence under investigation by providing evidence regarding where the raised funds went. The money was given to Cynthia DeSilva. A cheque was written directly to E.D., the DeSilva's daughter. That cheque went into a CIBC bank account associated with the daughter. It is an available inference in the circumstances that the documents sought in Appendix B would afford evidence of the crime under investigation.

D. Was the correct production order section utilized?

[37] The order was issued under section 487.014 of the Code. Section 487.018 contains the sub-heading "Production Order – Financial Data". The applicants allege that the wrong section was used to obtain their financial records. This argument must fail for the following reasons.

[38] Section 487.018 is the statutory descendant of the former s. 487.013 Code provision. Both provisions permitted the issuance of a judicial order to obtain certain limited financial records, such as the name and account of a particular account holder, the current status of the account, and the date(s) on which it was opened or closed. Section 487.018 also provides for additional identifiers to be provided by the financial institution, such as an account holder's date of birth and current address.

[39] Section 487.013 was enacted in 2004, following a series of court decisions that discussed whether a reasonable expectation of privacy attached to this type of "tombstone"[2] information: see R. v. Lillico (1994), 92 C.C.C. (3d) 90 (Ont. Gen. Div), aff'd [1999] O.J. No. 95 (C.A.); R. v. Eddy, [1994] N.J. 147, 119 Nfld. & P.E.I.R. 91 (S.C.); R. v. Quinn, supra; see also R. v. Cuttell, 2009 ONCJ 471, 247 C.C.C. (3d) 424 at paras. 23-27. The statutory provision enacted by Parliament contained a suspicion-based threshold, likely to reflect the reduced expectation of privacy engaged by this type of tombstone information.

[40] What is relevant, for present purposes, is that ss. 487.018 and 487.014 are aimed at different types of information. Section 487.018 may be described as a precursor order, in the sense that it allows investigators to obtain necessary account particulars in order to subsequently apply for production of account-specific financial information.

[41] In the present case, the police were seeking financial account information of known individuals in known accounts. They therefore applied under s. 487.014, the proper Code provision. However, this raises an additional question – how did the police obtain information about the existence and status of the applicants' financial accounts in the first place? On the face of the ITO, the police were told this information by bank officials. While they also may have obtained some information independently, because of their knowledge of the cheque negotiated via the daughter's account, the ITO does not expressly indicate whether that specific information came from CIBC or the individual who wrote the cheque in the first place.

[42] This was an issue not specifically raised or pleaded by the applicants. I have raised it on my own motion as part of my obligation as a judge sitting in a trial involving two unrepresented parties: see R. v. Tran (2001), 156 C.C.C. (3d) 1 (Ont. C.A.). Notwithstanding the able manner in which the applicants have conducted themselves (filing appropriate motion material, raising relevant case law, cross-examining effectively), this is still, in my mind, a Charter issue that a defence lawyer would have raised. I therefore have raised it on their behalf.

[43] I am prepared to conclude, in the circumstances of this case, that the applicants possess a reasonable expectation of privacy in the account particulars obtained by the police from CIBC without a warrant or related order. While Lillico is still good law in Ontario, the fact remains that Parliament has established a judicial preauthorization specific to this particular type of information. The existence of s. 487.018 compels a conclusion that a reasonable expectation of privacy now exists in this particular context.

[44] After excising this information from the ITO, no evidentiary basis remains regarding the second requirement for issuance – proof that information exists in the hands of a third party – as it relates to the seizure of the applicants' accounts. I accept there remains an evidentiary basis in relation to the E.D. account. The production order therefore could not have been lawfully issued in relation to any other account but the E.D. account. A section 8 Charter violation has been established. The next issue is whether that violation is sufficient to warrant exclusion of the evidence at trial.

(a) Section 24(2)

[45] The test for exclusion of evidence under s. 24(2) of the Charter was described by the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, 245 C.C.C. (3d) 1. The relevant evidence is assessed during a three-part analysis, which assists in focusing the balancing of interests that must ultimately occur:

1. The seriousness of the Charter-infringing state conduct;

2. The impact of the breach on the Charter-protected interests of the accused;

3. Society's interest in an adjudication on the merits.

[46] A helpful method of gauging the significance of Charter-infringing conduct is to determine where it falls on a spectrum of seriousness, with "inadvertent or minor violations" at one end and a blatant or brazen disregard for Charter-protected interests at the other: R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.); R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at paras. 23, 39.

[47] In the present case, I am not satisfied that this particular violation, standing alone, warrants exclusion of the evidence at trial. I consider the conduct of the police to sit somewhere in the middle of the spectrum, as they obtained information that they should have known required a section 487.018 production order to obtain. This branch of the test points towards exclusion. With regard to the impact on the applicants' Charter-protected interests, I note that s. 487.018 only requires a reasonable suspicion for issuance. This lesser threshold is demonstrative of a reduced expectation of privacy in the information improperly obtained: see R. v. M. (B.) (1998), 130 C.C.C. (3d) 353 at 376 (Ont. C.A.). I find this branch of the tests points towards neither exclusion nor admission. Finally, I accept that society, and the Ayr community specifically, has a strong interest in an adjudication of this case on the merits. This branch of the test points strongly towards admission of the evidence.

E. Is the order otherwise invalid because of the named target?

[48] The order identifies Bruna Durigon as the person responsible for producing the banking material. The ITO explains that Ms Durigon is an employee of the bank. The applicants claim that the naming of an individual, and not the financial institution itself, makes the subsequent seizure unreasonable. I reject this argument, largely for the reasons articulated by my colleague Justice Rahman in R. v. Owen, 2017 ONCJ 729 at paras. 109-113. Bruna Durigon works for the bank. The bank possessed the records sought by the order. The bank is not a person. Human intervention is needed to transmit the records from the bank to the police, pursuant to the order. On the basis of the evidence before me, I have every reason to conclude that Ms Durigon was properly named in the order to complete this task.

F. Is the date the bank complied relevant in this section 8 inquiry?

[49] The order, on its face, required compliance within sixty days. There is some suggestion before me that the bank provided information on two dates, one of which was in excess of sixty days from April 8, 2016, the date the order was issued by the Justice of the Peace. The applicants submit that the order expired after sixty days, and the information thereafter obtained was done so on a warrantless basis.

[50] In rejecting this argument, I adopt and entirely agree with Justice Sosna's reasons in R. v. Goulborne, 2011 ONSC 774, [2011] O.J. No. 446, 267 C.C.C. (3d) 568 (S.C.J), at paras. 30-37. As Sosna J. explains:

Although Section 487.015(1) makes reference to the wording "before the order expires" that term must be understood in the context of the exemption provision in which it resides. It does not suggest that the order "expires" in the sense that the obligation to produce ceases when the end of the set timeframe passes. Rather the language is used to ensure that if a third party against whom a production order is directed wishes to seek an exemption to the order, they must do so within the same timeframe as set out which compels production of the information sought.

The timeframes prescribing the specific periods in which compliance by a third party is ordered and the specific period in which a third party may seek exemption from the order are not intended to relieve the third party from compliance with the order should the timeframe pass.

IV. Disposition

[51] A section 8 violation has been established, but the violation does not result in the exclusion of evidence under section 24(2) of the Charter. The application to exclude the financial records is dismissed.

Released: January 31, 2018

Signed: Justice Scott Latimer

Footnotes

[1] Reasonable and probable grounds.

[2] "Tombstone information" is commonly used to describe account particulars: see R. v. Quinn, 2006 BCCA 255, 209 C.C.C. (3d) 278, at para. 4; R. v. Anand, 2010 ONSC 5920, at para. 28.