Court File and Parties

Ontario Court of Justice

Date: 2018-12-14

Court File No.: Kitchener Info # 18-008763

Between:

Her Majesty the Queen

— and —

Russell Rafferty

Before: Justice Scott Latimer

Heard on: December 3, 4, 5, 14, 2018

Reasons for Decision released on: December 14, 2018

Counsel:

• Alyssa Bain, counsel for the Crown
• Sean Safa, counsel for Mr. Rafferty

Decision

LATIMER J.:

Introduction

[1] Evan Hoegler died of carfentanil[1] poisoning in October of 2017. After collapsing on the floor of his parents' bathroom, he was rushed to hospital and placed on a ventilator until his death, three days later. He was twenty-seven years old.

[2] In the aftermath of Evan's overdose, his father located his smartphone sitting on the bed. It was unlocked. He opened the phone and located concerning messages. He brought the phone to a police station and provided it to an officer. That officer immediately examined the device and located text messages, as well as other information, that he believed related to drug trafficking. The contents of the phone were extracted – again without a warrant – and a criminal investigation began. Four months later, Russell Rafferty was arrested for trafficking carfentanil.

[3] Two months after the warrantless extraction of information from the device, the Supreme Court of Canada released R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, altering the law in Ontario with regard to whether the sender of an electronic message retained a privacy interest in the communication post-transmission. There is no dispute in this case that text messages exchanged between Evan Hoegler and Russell Rafferty were seized from Evan's phone without a warrant. What is at issue is the legality of that seizure in the circumstances of this case.

[4] For the reasons that follow, I am satisfied that Mr. Rafferty has standing to challenge the seizure of his text-based communications located on his interlocutor's device. This finding does not, however, extend to the other forms of data seized – such as the contact list and "etransfer" emails. Further, the Crown has not met its onus to demonstrate that the seizure of the text messages was authorized by law. A section 8 violation has been established. However, the evidence is nevertheless admissible under section 24(2) of the Charter.

Facts for the Purpose of This Application

[5] On October 2, 2017, Evan Hoegler was working an evening shift at Shopper's Drug Mart in Downtown Kitchener. Shortly after 9:15 p.m. he finished work and, later, arrived home on his bicycle. His family had just finished eating dinner when Evan arrived home. At approximately 10:30 p.m., he was found unresponsive in the family bathroom. 911 was called and frantic assistance was provided. Evan was transported by ambulance to the hospital, where machines sustained his life for three days until his eventual death on October 5.

[6] An officer who responded to the 911 call searched Evan's room, at his family's request, looking for drugs or related material. Suspected fentanyl – which Health Canada verified was in fact carfentanil – was located in a desk drawer, along with burnt tinfoil and makeshift pipes. These items were seized by the officer and taken to the police station.

[7] At some point in the days following, Alfred Hoegler – Evan's father – saw his son's phone sitting on his bed. He picked it up and examined its contents, becoming concerned with what appeared to be a discussion between his son and a friend (not the applicant) who was travelling in Europe. Their discussion, over email and text, appeared to involve the friend bringing drugs with him back into Canada. As I understood Mr. Hoegler's testimony, he brought these messages to the police because he was concerned about their content, and did not want what happened to his son to happen to anyone else.

[8] Alfred Hoegler met Detective Rob Clark at the police station on October 6.[2] This was approximately a day after his son had passed. He testified that his son died without a will, and that he gave the phone to the police because "it was open [and] there was information on it that I thought would be helpful". He left the phone with the officer after agreeing that it could be examined for investigative purposes.

[9] Detective Clark described the conversation that took place between the two men. Mr. Hoegler had questions surrounding his son's overdose, as he had been unaware that his son had been using hard drugs such as opiates. He also expressed concern about information he had located on his son's phone regarding a friend transporting drugs into Canada from abroad. Clark explained that he could download a digital copy of data on the phone and conduct an investigation. Mr. Hoegler consented to this process and left the phone, a Motorola Android device, with the officer.

[10] Detective Clark unlocked the phone and began examining its contents. He looked at the messages Mr. Hoegler was concerned about, and proceeded to contact Evan's friend who was in Europe. The officer quickly satisfied himself that nothing illicit was occurring. He then inspected "the most recent conversation on Evan's phone before [his death]". This conversation consisted of twenty messages sent between Evan and the applicant[3] from 7:06 p.m. and 9:12 p.m., ending approximately 75 minutes before Evan suffered his overdose at home. Clark, based on his experience as a drug investigator, saw these messages as a "clear conversation between two parties to arrange a drug deal for Evan to purchase illegal drugs". He sought to identify who was at the other end of the communication.

[11] An examination of other data on the phone led Detective Clark to the applicant. An inquiry of the 'NICHE' police record database revealed a connection between the applicant and the phone number communicating by text with Evan's phone on October 2. The officer also saw, in Evan's email folder, etransfers[4] of money from Evan's account to one associated with the applicant. All of this data was accessed by the officer on October 6 without a warrant.

[12] The applicant became the target of Detective Clark's investigation. More traditional investigative avenues followed. On October 10, Evan's phone was brought to the Waterloo Regional Police Tech Crimes Unit so that the data could be copied and extracted. Two days later, Detective Clark was provided the results electronically, which included over 18,000 text and email communications. Portions were filed into evidence on this application, including all recovered text messages between the applicant's phone number and Evan's device in the eight months prior to his death.

[13] On the evidence before me, Detective Clark did not consider obtaining a search warrant prior to seizing data off of Evan's phone. He was not asked by the Crown to explain his thought process in this regard. Once he had possession of the seized data, production orders were sought and obtained in relation to financial documents, ATM photo stills, and the applicant's phone records. These orders, while not formally challenged as part of this application, seemingly rely upon this information for issuance.[5]

The Section 8 Analysis

[14] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search and seizure. To succeed on this application, Mr. Rafferty must first establish that "a state act constituted a search or seizure because it invaded [his] reasonable expectation of privacy in the subject matter of the search": R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at 708. Once standing is established, the burden shifts to the Crown respondent to justify as reasonable the warrantless search: Hunter v. Southam Inc., [1984] 2 S.C.R. 145.

Standing Generally

[15] Recent appellate decisions have addressed the parameters of lawful digital search and seizure. The twin decisions of Marakah and Jones – released simultaneously by the Supreme Court on December 8, 2017 – address modern expectations of privacy in the electronic communication context. Marakah, in particular, is presently relevant.

[16] Nour Marakah was prosecuted for firearms trafficking. A portion of the Crown theory involved text message communications sent between him and his accomplice, Andrew Winchester. At trial, Marakah successfully challenged the seizure of text messages recovered from his own phone. Those messages were excluded from evidence; however, the trial judge ruled that he had no standing to challenge the seizure of the same messages from Winchester's phone. The Winchester copy of the text message communications was admitted at trial. Marakah was convicted and appealed the ruling to the Court of Appeal where, in a 2-1 decision, his appeal was dismissed. He further appealed to the Supreme Court of Canada.

[17] A majority of the Court allowed Marakah's appeal and excluded the Winchester text messages under s. 24(2) of the Charter. Critically, the majority ruled that Marakah retained a privacy interest in his text message communications, even after those messages had been sent. The subject matter of the search was not the underlying data residing on the two devices: it was the electronic communication itself. The fact that it occurred in a one-to-one electronic context, akin to a private chat room, and contained sensitive, private information, was sufficient to establish an objectively reasonable expectation of privacy, notwithstanding the limited degree of control inherent in electronic communication. Once the Court concluded that Marakah possessed a reasonable expectation of privacy in the information seized from Winchester's phone, the Crown conceded that the seizure itself was unreasonable and a violation of section 8 of the Charter.

Standing with Regard to the Device

[18] Returning to the present case, it is useful at the outset to identify the relevant features of this particular fact pattern. Alfred Hoegler – a private citizen – provided his deceased son's digital device to the authorities. The applicant does not suggest that the transfer of the physical phone was unlawful. This concession is soundly made. The applicant's claim of privacy relates not to the device itself, but to the information contained therein.

[19] Irrespective of the applicant's concession, I do not believe that simple receipt of this phone, on these facts, would constitute state action triggering standing under s. 8 of the Charter. Mr. Hoegler brought a physical item to the police, suggesting that it may contain evidence of criminal activity. His son, the previous owner of the device, was deceased. Detective Clark was obligated, in my view, to take possession of the phone in the circumstances.[6]

[20] Canadian Courts have consistently acknowledged a difference between the seizure of digital devices and their subsequent examination. While individuals of course have a privacy interest in the phones and computers they possess, it is the information contained on these devices that the Charter most jealously guards. For example, in R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, dealing with the seizure of a teacher's school board-issued laptop in a child pornography investigation, the majority of the Court stated as follows at paragraphs 41 and 65:

"In this case, the subject matter of the alleged search is the data, or informational content of the laptop's hard drive, its mirror image, and the Internet files disc — not the devices themselves…

The police may well have been authorized to take physical control of the laptop and CD temporarily, and for the limited purpose of safeguarding potential evidence of a crime until a search warrant could be obtained. However, that is not what occurred here. Quite the contrary: The police seized the laptop and CD in order to search their contents for evidence of a crime without the consent of Mr. Cole, and without prior judicial authorization." [emphasis in original]

[21] Each case presents its own facts. On this application, both parties made submissions regarding ownership of the phone, who could legally "consent" to its seizure and examination, and whose privacy interests were engaged by Detective Clark's actions. Upon reflection, I am satisfied that the applicant had no possessory or privacy interest in Evan Hoegler's physical phone. Evan's own interests expired upon his death, and are not relevant to my analysis in this case: see Irwin Toy Ltd. v. Quebec (A.G.), [1989] 1 S.C.R. 927, at 935. Additionally, I do not believe I have to scrutinize, as argued by both parties, whether his father thereafter had a private law interest in the phone, although it seems he most likely did. What matters is that I am satisfied that Detective Clark lawfully came into possession of the phone on October 6; the Charter inquiry moves next to scrutinize the information on and available to the device.

Standing with Regard to the Information on the Device

[22] Once Detective Clark began examining the phone, informational privacy concerns were clearly engaged. I do not accept, as argued, for reasons stated above, that Evan's interests were infringed by Detective Clark's warrantless examination of the device; the focus of my inquiry has to be on the applicant's privacy interests. I do not accept the Crown's argument that the applicant's privacy expectation in the sent text messages was unreasonable. The applicant acknowledged during the voir dire ownership of the phone number in question, and authorship of the October 2, 2017 emails. He testified that these were private communications that he had repeatedly directed Evan Hoegler to delete, as he was concerned that they would cause him personal and professional harm if made public. Somewhat contradictorily, he also acknowledged that he knew Evan to share his phone with other people in their close circle of friends, and perhaps others. This meant that Evan was not the only one who could potentially access his messages.

[23] Based on my reading of the Marakah majority opinion, a reasonable expectation of privacy will almost always be found in the traditional text message context: see Marakah, at 620, 682. The qualifying language employed by the majority seems exclusively aimed at other types of electronic communications, such as social media, online message boards, etc., where different factual considerations may very well apply.[7] I note that the Ontario Court of Appeal recently concluded that an accused had standing in sent Blackberry messages in R. v. Ritchie, 2018 ONCA 918, at para. 15. Indeed, the Federal Crown conceded the issue in that case before the Court of Appeal.

[24] In conclusion, I am satisfied that Russell Rafferty has established an intrusion upon his informational privacy when the police seized sent text messages from Evan Hoegler's phone. I make that finding. The other information seized, however, such as the emails containing the etransfers, has nothing to do with the applicant, other than they purport to send him money. They were not created by him, nor do they contain any communicative acts or private information about him. I am not satisfied that the applicant has standing to challenge the admission of the surrounding data on the phone. Put perhaps more clearly, I am only satisfied that the sent text messages are subject to s. 8 Charter scrutiny on this application.

The Warrantless Search of the Phone Was Unreasonable

[25] The Crown, in aid of meeting its burden to justify a warrantless search, presents a novel argument – that Alfred Hoegler's lawful possession of the phone on October 6 included a right to all information on the phone, such that his decision to provide the device to the police granted them legal authority for the search that followed.

[26] I cannot accept this argument, largely for two reasons. First, "consent" is not a stand-alone search authority; it is a waiver of s. 8 protection in the first place. "A consent search and seizure is, in fact, no search or seizure at all for the purposes of s. 8": R. v. Wills (1992), 70 C.C.C. (3d) 529, at 549 (Ont. C.A.). Secondly, such a conclusion would be inconsistent with the holding in Marakah that lack of control is not determinative of a claimant's privacy interest. If the applicant's privacy interest persisted after his text messages landed on Evan Hoegler's phone, I fail to see why that interest would be extinguished by a change in ownership. "The Crown's argument that there is no seizure within the meaning of the Charter when a party with an equal and overlapping privacy interest provides consent would effectively permit the consenting party to waive the privacy rights of the other parties. This would be inconsistent with this Court's decision in Cole": R. v. Reeves, supra, at para. 48. The Crown points to no other source of legal authority for the seizure of the applicant's text messages. The presumption of unreasonableness has not been rebutted; a section 8 violation has been established.

The Evidence Is Nonetheless Admissible Under Section 24(2)

[27] The test for exclusion of evidence under s. 24(2) of the Charter was described by the Supreme Court in R. v. Grant (2009), 2009 SCC 32, 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.

[28] 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: Grant, supra; 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. Detective Clark's conduct in this case is best described as a minor violation. Unlike the seizures in Marakah and Ritchie, Clark's receipt of the physical device was lawful. The owner of the phone was deceased and, at the time of the warrantless examination, the law in Ontario did not recognize a privacy interest in sent text messages: see R. v. Marakah, 2016 ONCA 542, 338 C.C.C. (3d) 269, at 296. It cannot be said, at the time of examination, that Detective Clark was ignorant of Charter principles during his interaction with the phone. While this finding does not preclude a section 8 violation, given the evolution in the law at the Supreme Court level, it does favour admission on this part of the Grant test. See, relatedly, the Court's findings in this regard in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at 250.

[29] Turning to the second branch of the test, however, the impact on the applicant's Charter-protected interests was significant. Personal, private communications were seized and examined. Chief Justice McLachlin wrote that it was "difficult to think of a type of conversation or communication that is capable of promising more privacy than text messaging": Marakah, at 631. The applicant testified that he told Hoegler to delete their text conversations off his phone. I accept those requests occurred. I do note however, that the applicant was aware that Hoegler's phone would be shared with others, and that his communications may have been visible to these other people. While this does not eviscerate his privacy expectation, it does, to a degree, diminish it. Overall, I find this factor points towards exclusion.

[30] The final part of the Grant test focuses on society's interest in trying criminal allegations on their merits. The present allegation is trafficking a Schedule I narcotic, an offence that carries a maximum sentence of life imprisonment. The factual backdrop involves a young man's death following an overdose on a substance that is causing chaos in our community: see, e.g., R. v. Cinelli, 2018 ONSC 4983, at paras. 16-20; R. v. Vezina, 2017 ONCJ 775, at paras. 22-23; R. v. Mastromatteo, 2018 ONCJ 421, at para. 8. Detective Clark testified that there have been over seventy overdose deaths in Waterloo Region alone. I accept that there is a heightened interest in seeing this particular case adjudicated on the merits. Finally, I am advised that the Crown would not be in a position to proceed with the charge in the absence of this evidence. For all of these reasons, I find this factor weighs in favour of admission.

[31] Having assessed and balanced the various interests and factors through the lens of this three-part test, I conclude that admission of the text messages, in the circumstances of this case, would not bring the administration of justice into disrepute. The police conduct was reasonable and compliant with the law as it was at the time. The evidence is reliable, and its exclusion would effectively gut the prosecution case. While the intrusion into Mr. Rafferty's privacy interest was significant, so is the charge. In conclusion, I am convinced that the applicant's text messages should be admitted at trial pursuant to section 24(2) of the Charter.

Disposition

[32] The text message seizure violated s. 8 of the Charter, but the messages are nevertheless admissible under s. 24(2). In total, all evidence located on Evan's phone is admissible at the applicant's trial. I expect the parties to consider the implications of this ruling with regard to the subsequent production orders obtained, and advise the Court in due course whether a Garofoli application will be pursued.

Released: December 14, 2018

Justice Scott Latimer

Footnotes

[1] Carfentanil is the chemical name for the compound more commonly referred to as carfentanyl.

[2] There was a mild factual discrepancy regarding whether this meeting took place on October 5 or 6. For the purposes of this application, I do not think much turns on which day the meeting took place. However, given Mr. Hoegler's understandable emotional state during this time period, I prefer Detective Clark's evidence on the date of the meeting.

[3] In his testimony, Mr. Rafferty acknowledged sending these text messages.

[4] Electronic personal banking transactions.

[5] To be clear, I have not been provided with any of the ITOs related to these later production orders. An ongoing discussion between the Court and the parties during this application has been the potential implications for these orders if I find – as I have – that a section 8 violation has occurred. I am advised that discussions will continue between the parties after this ruling, and that a further application may be brought challenging these warranted seizures.

[6] In R. v. Reeves, 2018 SCC 56, released yesterday, the Supreme Court expressly declined to consider whether section 8 would be engaged by a citizen voluntarily providing an item to the police: see Reeves, at paras. 46, 115, 129.

[7] See, for example, Justice Bawden's review of Facebook Messenger communications, post-Marakah, in R. v. Patterson, 2018 ONSC 4467.