ONTARIO COURT OF JUSTICE

CITATION: R. v. S.L., 2019 ONCJ 101

DATE: 2019 02 22

COURT FILE No.: Brampton 3111 998 17 1769

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

S.L.

Before Justice G.P. Renwick

Heard on 19, 20, and 21 February 2019

Reasons for Judgment released on 22 February 2019

C. Henderson....................................................................................... counsel for the Crown

J. Manishen........................................................................... counsel for the defendant S.L.

RULING ON CHARTER APPLICATIONS

RENWICK J.:

INTRODUCTION

[1] The Defendant is charged with one count of possessing child pornography. A second count of making child pornography available was withdrawn on an earlier date, well before the start of the trial.

[2] By way of a pre-trial application, the Defendant seeks to quash the search warrant that led to the seizure of his cellular telephone and two computers, which are alleged to contain the illicit material. The attack on the warrant claims facial invalidity based upon an insufficiency of grounds for its issuance. As well, the Defendant has applied for the exclusion of evidence obtained as a result of alleged constitutional violations, under ss. 7, 8, 9, and 10(b) of the Charter.

[3] Sections 7 and 8 of the Charter are claimed to have been violated by the self-incrimination of the Defendant during the warrantless seizure of the password for his cell phone as the residence was being searched. Section 9 is said to be implicated by the police practise of gathering everyone into one room for an extended period of time while the search of the premises took place. Lastly, the right to counsel was apparently violated because the Defendant’s detention was not immediately followed by the information about or the opportunity for contact with counsel.

[4] The Respondent defends these applications by resort to a presumptively lawfully issued search warrant which is claimed to contain sufficient grounds. Also, it is argued that the Defendant was not detained until his arrest, which occurred after he had provided informed consent to the police to use his thumbprint and numerical password to unlock his phone.

[5] The challenge to the issuance of the search warrant proceeded on the basis of the paper record, which included the factum of the parties and the Information to Obtain the search warrant (“ITO”). There was no evidence called in respect of the ITO; specifically, there was no application to cross-examine the affiant.

[6] By contrast, two brief police witnesses testified and several photographs and documents became exhibits on the remaining Charter applications.

[7] These applications raise the following issues:

i. Was there a sufficiency of grounds for the issuance of the search warrant;

ii. Was the Applicant arbitrarily detained;

iii. Did the failure to provide the Applicant his rights to counsel until his arrest violate the Charter;

iv. Did the police unreasonably seize the Applicant’s cell phone password; and

v. If any of the Applicant’s Charter rights were violated, should evidence be excluded?

[8] Within these reasons I will discuss the governing legal principles, the evidence and my factual findings, and the resolution of these issues.

GOVERNING LEGAL PRINCIPLES

[9] To obtain a search warrant, the police must provide "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search:" Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 168).

[10] The test upon review of a search warrant is not whether the court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds existed to believe that an offence had been committed and that evidence of that offence would be found at the specified place.[^1]

[11] The Applicant bears the onus to establish a violation of his Charter rights on a balance of probabilities. Moreover, once a violation has been established, the Applicant must then establish to a probable standard that admitting evidence obtained by the violation of his constitutional rights would bring the administration of justice into disrepute.[^2]

[12] A warrantless search is presumptively unreasonable within the ambit of s. 8 of the Charter, unless the prosecution establishes on a balance that the search was authorized by law, the law authorizing the search is reasonable, and the search was carried out reasonably.[^3]

[13] Alleged Charter infringements must be evaluated within a purpose-driven, context-dependent analysis that permits a generous interpretation of constitutional protections.[^4]

[14] The Supreme Court provides guidance for the analysis in R. v. Grant at para. 16:

Constitutional guarantees such as ss. 9 and 10 should be interpreted in a "generous rather than ... legalistic [way], aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection" (R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, at p. 344). Unduly narrow, technical approaches to Charter interpretation must be avoided, given their potential to "subvert the goal of ensuring that right holders enjoy the full benefit and protection of the Charter" (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 23).

[15] Given the high value our society places on freedom, it is unsurprising that s. 9 of the Charter protects us from unlawful or otherwise arbitrary restrictions on our liberty.

It is clear that, while the forms of interference s. 9 guards against are broadly defined to include interferences with both physical and mental liberty, not every trivial or insignificant interference with this liberty attracts Charter scrutiny. To interpret detention this broadly would trivialize the applicable Charter rights and overshoot their purpose. Only the individual whose liberty is meaningfully constrained has genuine need of the additional rights accorded by the Charter to people in that situation.[^5]

[16] However, our right to be free from state interference is not absolute. Our law recognizes the importance of drawing a balance between personal autonomy (the right to be left alone by the state) and law enforcement. Consequently, not every encounter between the police and an individual is a “detention:”

In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation. Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel.[^6]

[17] The Supreme Court has even confirmed that interactions between police and suspects do not necessarily create a detention:

Likewise, not every police encounter, even with a suspect, will trigger an individual's right to counsel under s. 10(b). As Iacobucci J. aptly observed, in R. v. Mann, [2004 SCC 52](https://www.canlii.org/en/ca/scc/doc/2004/2004scc52/2004scc52.html), [2004] S.C.J. No. 49 at para. [19] "[t]he person who is stopped will in all cases be 'detained' in the sense of 'delayed', or 'kept waiting'. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint."[^7]

[18] Determining whether or not a particular interaction between the state and an individual is a detention is a fact-based question of law.[^8] Questions involving physical custody are usually easy to determine. Psychological restraint, may be more difficult to discern, but it is no less deserving of constitutional protection:

The notion of psychological detention recognizes the reality that police tactics, even in the absence of exercising actual physical restraint, may be coercive enough to effectively remove the individual's choice to walk away from the police. This creates the risk that the person may reasonably feel compelled to incriminate himself or herself. Where that is the case, the police are no longer entitled simply to expect cooperation from an individual. Unless, as stated earlier, the police inform the person that he or she is under no obligation to answer questions and is free to go, a detention may well crystallize and, when it does, the police must provide the subject with his or her s. 10(b) rights.[^9]

[19] Police requests for information can involve an unreasonable search and seizure. In R. v. Harris, in the context of a request for identification of a passenger in a motor vehicle Justice Doherty held that s. 8 of the Charter had been violated:

Answers to police questions may or may not give rise to a s. 8 claim. As with other aspects of the s. 8 inquiry, a fact-specific examination of the circumstances is necessary. Where the subject of the questioning is under police detention and reasonably believes that he or she is compelled to provide the information sought in the questions, I do not think it distorts the concept of a seizure to describe the receipt of the information by the police as a non-consensual taking of that information from the detained person.[^10]

[20] A validly given consent neutralizes what could otherwise be described as an unreasonable search and seizure. However, unlike a warranted seizure, which can be based on faulty, imperfect, or even inaccurate information which is reasonably believed by the police, reliance on a warrantless consent seizure cannot be justified by a reasonable belief. It can only be justified by validly obtained consent.[^11]

THE EVIDENCE AND FINDINGS OF FACT

Was There a Lawful Basis for the Search Warrant to Have Been Issued

[21] In this section of my reasons, I will consider the s. 8 application alleging no sufficient basis for the warrant to have issued. This analysis does not require the discussion of evidence, however, because a finding that there was no lawful basis to have issued the warrant will have implications for the remaining Charter applications, it makes sense to consider this issue before the discussion of the evidence heard in respect of the execution of the search warrant.

[22] The Defendant claims several deficiencies with the ITO:

i. The information of the offence was stale and there was no reasonable basis to believe that evidence of the offence would still be available;

ii. Without special knowledge presented in the ITO the issuing justice could not reasonably conclude that it was likely that evidence of the offence would still exist;

iii. The police investigation could not determine if others lived at the Flint residence;

iv. There was no specific evidence presented in the ITO to explain the origin or user of the Chatstep account

v. There was no specific evidence regarding the wi-fi at the Flint home, and certainly no evidence about that network at the time of the alleged offence;

vi. The ITO was a fishing expedition for an expansive list of items which could not be narrowed because the investigation had yielded few details;

vii. The affiant overstated his belief that evidence would be found at the Flint residence;

viii. The police investigation did not rule out the possibility of other suspects; and

ix. There was no evidence that the suspect was a collector as support for the belief that images may still be found on the device several months later.

[23] The Defendant’s challenge to the search warrant was not predicated upon the lack of a reasonable belief that an offence had been committed. The sole ground for this application was an insufficiency of grounds to establish the requisite likelihood that evidence of the offence was still likely to be found at the Flint residence six months later.

[24] The Respondent submitted that several of the claimed deficiencies erroneously raised the test for issuance to one of proof of a prima facie case. Also, the affiant did not have to cover off how many potential suspects could have uploaded the three images six months prior, or whether or not the network was secure. The affiant presented credible information that the IP address used to commit the offence was the same IP address that had been registered to Dennis Flint at the same residence since well before the alleged offence, and which was still in use by him on 16 January 2017 (the date the production order was executed). This time period included the date when the child pornography was uploaded on 07 August 2017.

[25] The ITO made it clear that there was an on-going and continuous connection between the Flint residence and Mr. Flint as the registered user of the IP address in question from well before the offence date until the date the production order was executed. As well, the ITO detailed the investigative steps taken by the affiant to confirm that Mr. Flint was an actual person who resided at the address in question.

[26] One of the main areas of complaint for the Defendant was the lack of expert evidence to support the belief that evidence of the alleged offence would probably still exist on a device at the Flint residence some six months after the fact.

[27] There are several points to make here. Credibly-based probability is a mid-level threshold of proof. It exists on an evidentiary ladder well above the lowest rung of reasonable suspicion, but below a prima facie case. The subject matter of the affiant’s beliefs need not ultimately be proven correct, as long as the beliefs held on the basis of the information are reasonable.

[28] This recognizes that investigative information can be incomplete, ambiguous, or inaccurate. Save for situations where it would be patently obvious that the information was not capable of belief, or the affiant had knowledge that the information relied upon was inaccurate or otherwise unworthy of belief, the reasonableness of the belief can be established by examining the information contained within the ITO and considering the reasonable inferences that can be drawn therefrom. What is required is that the affiant state the basis to believe that evidence of a crime is likely to be found at a particular place, and the basis claimed must be reasonable.

[29] The reviewing court is not tasked to determine whether it would have granted the warrant. Instead, it must determine whether upon review there remains any basis upon which the issuing justice could have found that the information presented in the ITO was reasonably capable of belief and whether the affiant’s beliefs met the statutory preconditions for the authorization.[^12]

[30] In R. v. Porter, the court discussed a similar argument about the reasonableness of the affiant’s belief that the existence of evidence of the offence was probable after a significant delay from the time when the child pornography was initially accessed:

It is reasonable to suggest there should be a point at which information becomes too dated. And it is fair to say that, because of the passage of time, this case requires careful scrutiny of the ITO, chronology, any explanations for delay, and of what was done during that period, all to ensure there is currency and present value in the information. To not do so would be to allow a suspicion based test to replace a credibility based probability.

Narrowing the issue to that of timing, there is no doubt, as I will address again shortly, that the greater the lapse of time, the more likely it will be impossible to recover images that were previously accessed. However, the answer to this is, when it becomes an issue, to engage in greater scrutiny of the ITO. This would typically require that the ITO directly address how the affiant counters the possibility that evidence may have been deleted. In Morelli, the court specifically found that, on this issue, this was not done and that the police engaged in conjecture and speculation.[^13]

[31] In this case, the enhanced scrutiny threshold is crossed by the inclusion of information that the same IP address had been used by the same person(s) at the same home address where the account holder has historically and continues to live. There is a continuity to the information by the currency of the account holder’s Facebook account with an uploaded photograph and the matching driver’s license and vehicular registration information. If even one link in the inferential chain had been broken, the likelihood that the user of the IP address would be linked to the same residence six months after the unlawful upload would be severed. Adding to the reasonableness of the affiant’s belief is the knowledge that the three images were possessed at the time they were uploaded and there would likely be a record of that possession left on the user’s device even if the images were deleted.

[32] Again, reasonable probability is the standard for the expectation that evidence would still exist, not reasonable certainty.

[33] In this particular case, the affiant stated that “I have personal knowledge of the facts outlined in this application, except where these facts are stated to be on information and belief. During my investigation into this matter, I have read police reports and statements of other police officers.” This claim was not challenged, undermined, or contradicted by the Defendant. This would seem to be a complete response to the Defendant’s claims that the affiant did not possess the technical expertise to express the conclusions he did regarding the likelihood of finding evidence of the offence at the Flint residence.

[34] It is clear in the ITO that the affiant was aware that members of the Peel Regional Police Technological Crimes Unit (“PRPTCU”) can carry out forensic examinations of computer systems and retrieve information related to web pages created on the computer and downloaded from the internet and that computer systems store information for “some time.” Also “if deleted, it is still possible to retrieve some of this information.”

[35] The Defendant submits that the claims that information can be stored for “some time” and “some” deleted information can be retrieved undermines the belief that evidence will likely be found because these statements are imprecise and unquantified. I find that these statements are reasonable because they allow for the possibility that some information can be deleted and never recovered and as a general statement it would be difficult if not impossible to quantify the length of time data may remain on a given device without knowing the specifications of the device and its usage. Again, because these statements were not embellishments created to assert more than could be said in a general context, they seem reasonable.

[36] I also note that of the cases presented by counsel, only one (R. v. Owen, [2017] ONCJ 729) involved a time period shorter than the six months at issue in this matter. The time period in and of itself does not create a presumption that evidence of the offence could not possibly be found on a device. Again, if reasonableness is the vehicle that drives credibly based probability, there is no evidence before the court by which to conclude that the information in the ITO was so stale that the standard could not be met.

[37] I find that the information contained in the ITO is capable of supporting the belief that evidence was likely to be found at the Flint residence for the following reasons:

i. There was evidence that the IP address linking the residence to Dennis Flint and to the offence was consistent and continuous over an extended period of time which preceded the offence by over a year and continued for over five months after the offence, leading up to the execution of the production order;

ii. Dennis Flint had an active Facebook account that contained an uploaded photograph of himself that satisfied the affiant that he was the same Dennis Flint who had a current driver’s license associated with the same address where he was known to reside for the prior five years; also, the affiant had observed a motor vehicle registered to Dennis Flint at the residence in the weeks prior to the application for the search warrant; this information supported the view that Dennis Flint had access to at least one device that was capable of uploading images;

iii. The affiant stated his belief that the “child sexual abuse video” [sic] was possessed by the unknown suspect before it was uploaded using the internet; because the uploading of three extremely graphic, disturbing, and obviously unlawful images occurred in rapid succession, it is reasonable to infer that neither the possession nor the uploading behaviour was the product of an accident;

iv. The affiant was aware that previously hidden or deleted data and images can be retrieved by forensic analysis;

v. The affiant presented evidence about the technical expertise of the PRPTCU and their ability to retrieve deleted information; and

vi. The affiant claimed to have personal knowledge of the ability of computers to store information for some time.

[38] The information within the ITO was not so unusual or incredible as to render the basis for the affiant’s beliefs unreasonable. Though there could be other inferences drawn from the uploaded child pornography six months earlier, it was not unreasonable to believe that this had occurred, from this address, and that evidence probably still existed, even if the images themselves had already been deleted, which could be recovered by forensic analysis of the device(s) possessed in the Flint residence. The currency of the affiant’s knowledge that a computer system appeared to exist at the home with a password protected wireless network within two weeks of the issuance of the warrant provided further support for the affiant’s reasonable beliefs.

[39] The Defendant took issue with paragraph 12 of part IV, Grounds to Believe An Offence Has Been Committed because the affiant states he is confident that the investigation satisfies that “someone who resides at” the targeted residence committed the subject offence. The Defendant did not specifically seek excision of the word “resides,” but I agree that this word overstated the evidence presented. It would not have been ascertainable when the affiant swore the ITO to have known whether or not the unknown suspect was a resident of the Flint home. The Defendant used this as an example of the over-statement of the strength of the evidence in the affidavit, but did not suggest how I might treat this inaccuracy.

[40] I am prepared to treat this statement as a minor mistake. There is certainly a dearth of evidence that it was intentionally used to mislead the authorizing justice. Even if excised from the ITO, the evidence would remain just as strong: the affiant was confident that the investigation satisfies that someone who was at that residence was responsible for the offence. This minor drafting error would not have removed the otherwise reasonable basis for the issuance of the search warrant.

[41] The Defendant referenced other cases that had quashed similarly drafted search warrants. These are not entirely helpful because reasonableness is context-dependent. I have considered the cases presented and I find that the analyses contained within those cases assist me to understand the test for issuance, the test upon review, and some of the considerations that may apply in considering the sufficiency of the grounds of similar ITO’s drafted in similar circumstances.

[42] On the whole I am not satisfied on a balance of probabilities that there was an insufficiency of grounds such that there was no lawful basis for the issuance of the search warrant at issue.

The Execution of the Search Warrant – General Evidentiary Considerations

[43] I do not propose to detail all of the evidence received during this hearing. Suffice it to say that I have made detailed notes of the evidence taken, I have reviewed the digital audio recordings of parts of the evidence, and I have considered all of the evidence before coming to any conclusions in this matter. While I have had three days during this hearing to consider the issues raised by the applications, I did not begin to consider the evidence until all of the submissions had been received.

[44] I note that I can accept all, part, or none of what a witness said. As well, I have considered various factors in coming to any conclusions about the credibility and reliability of the two police witnesses.

[45] First, in terms of credibility, I have considered the following:

i. Endemic credibility factors: does the witness have a history of misconduct or a reputation for dishonesty;

ii. Situational credibility factors: is there a motive to fabricate, deceive, or embellish;

iii. Overall impression, including presentation and demeanor while testifying;

iv. Evidentiary content including:

a. Plausibility;

b. External supports or contradictory evidence

c. Consistency: both from the perspective of the entirety of the witness’ evidence and within the complete evidentiary landscape, as well as in respect of prior statements made by the witness;

d. Balance, neutrality, and/or objectivity; and

e. Candour: the willingness to admit errors or embarrassing details.

[46] In terms of reliability, I have considered the following:

i. Endemic reliability factors: the ability to observe, awareness, sophistication, and life experience;

ii. Situational conditions: obstructions, emotional interference or stress, the significance of the observations, the recording of observations;

iii. Memory: any obvious issues (alcohol affected, dementia, etc.), admissions of poor memory, passage of time, insecurity giving details, inconsistency while testifying, external evidence supporting or contradicting sound memory, and reliance on memory aids; and

iv. Communication: lack of or implausible level of detail and precision while testifying.

The Testimony of Officer Jenkins

[47] Officer Scott Jenkins testified that he has been a police officer for 16 years, the last three and one-half of which have been while he was a member of the Internet and Child Exploitation Unit (“ICE”).

[48] Overall, this witness presented as credible and forthright. While I did not find that Officer Jenkins was a perfect historian, on the whole his evidence was consistent, unembellished, uncomplicated, sufficiently detailed, uncontradicted, and plausible.

[49] Counsel for the Defendant submitted that Officer Jenkins was not credible or reliable in various parts of his testimony, but more importantly, he was unaware of what constitutes a detention. A thorough and careful review of the evidence undermines this characterization. Several examples prove the point.

[50] First, the officer was quick to admit the limitations of his training, knowledge, and experience. He admitted that he receives regular bulletins about developments in the law, but he also testified that there is no regular program given to update officers about the Charter. As well, the officer has only ever executed about 8-10 search warrants as a member of ICE, none of which had been litigated before the execution of this warrant.

[51] Officer Jenkins was also candid that he was unaware of the case of R. v. Wills, respecting informed consent.

[52] I find that the officer was sufficiently aware of the limits of his authority and the rights of individuals he encounters. As the officer was never directly examined on his understanding of detention, there is an absence of evidence to establish that he was not sufficiently knowledgeable in this area.

[53] Second, Officer Jenkins did not seek to enhance his testimony or assist the prosecution. When asked in cross-examination whether he knew in February 2017, when the warrant was executed, if the police could open a password protected IPhone without a password, he admitted: “I can’t say, one way or another.” This admission did not assist the Respondent in dispelling the Defendant’s contention that the police needed passwords because they could not unlock certain cell phones at that time.

[54] Third, counsel for the Defendant suggested that the officer was not credible when he said he had not thought about the possibility that they may seek passwords from individuals found in the premises before the execution of the warrant. Counsel suggested that the officer’s evidence meant that Jenkins only realised the need to seek passwords once he was inside the residence. This was not an accurate characterization of Officer’s Jenkins’ evidence on this point. The following exchanges took place:

Q. Sir, so what you contemplate, is, when entering the residence, and I’m thinking particularly of passwords, because you did ask for passwords, from Mary-Beth, from Mr. [L.], at least those were requested, correct?

A. Correct.

Q. And that wasn’t something you came up with at the spur of the moment, you knew before going in, that part of what you were gonna do inside was ask for passwords.

A. That’s something that we do. If we’re in there, and, we give people that option. Sure.

Q. When you say “we,” certainly you knew when going in that that was something you anticipated doing, correct?

A. Our unit as a whole, when we go in to execute a warrant, we all ask people, give them that opportunity. Sure.

Q. That’s your unit as a whole.

A. Mmmhm.

Q. That’s what, something that you offer, but all I’m gonna do is you as the officer in charge, so, I’ll ask it again. You, as the officer in charge, knew that you were going to ask for passwords, to computers and cellphones when you entered. You knew that didn’t you?

A. Not necessarily, no.

Q. So, it was just something that you thought of at the time while you were there?

A. No, it’s like I said, before. It’s a dynamic situation. If we walk into a residence and no one’s claiming ownership of any of the property in there, then it will be seized. Or, if nobody remembers passwords.

Q. But if we back up a couple of steps, so, I want to be clear on this. What you’re saying to us is, at the time, doing the briefing…

A. Yes.

Q. …you didn’t, you hadn’t decided in your own mind whether once inside you would ask anybody for their passwords to their computer or cellphone, you hadn’t made that decision.

A. I hadn’t made that decision, no.

Further, after a few more questions and answers:

Q. And, was it a matter of when you saw Mr. [L.] the thought came to mind, I’m gonna ask him if he has a cell phone?

A. No.

Q. When you asked him if he has a cellphone, it’s only at that moment the thought came to mind, ’hey, I’ll ask him for the password.’ You hadn’t thought of that before going in?

A. No, I hadn’t.

Q. And with respect to Mary-Beth, you ask her for the passwords, if the computers are password protected, and ask for the password, right?

A. Yes.

Q. And that wasn’t something you thought of, before going in that you might do?

A. It, it’s something that’s been done before. It’s not, no, I’m not gonna say that that was my game plan going in to this, because it wasn’t.

And again, later on, during the cross-examination:

Q. So, um, dealing with the plan. You’ve told us that you hadn’t decided, before entering the residence if you were going to ask the individuals the passwords to their phone or computer. Did I have your evidence right on that?

A. Every scenario’s different. No I had not put that in as part of my game plan.

Q. All right. But you knew that it could be an option. It’s an option that you have used…

A. It’s a possibility.

Q. And you’ve used it in the past?

A. I have.

Q. And sometimes you’ve been able to, the people give you the password, and other times not.

A. Correct.

[55] I disagree that this evidence showed any inconsistency, implausibility, or lack of candour. The officer simply stated that seeking passwords was something that had been done in the past, but it was not something he necessarily planned or specifically thought about doing before it occurred in this case. His explanation was simple: before entering the home, Officer Jenkins had no way of knowing what may be found and whether or not passwords would be sought. I accept this evidence.

[56] Counsel tried to suggest that Officer Losier’s evidence clearly contradicted Officer Jenkins’ on this point. Her evidence was that it is standard to ask someone when a cellphone or computer is found for their password. Officer Losier also agreed in cross-examination that asking for a password is something that she has learned, was trained to do, while being in ICE. Further, she agreed with the suggestion, “if you find a cellphone, you ask for the password.”

[57] Counsel’s suggestion that this evidence clearly contradicted Officer Jenkins’ testimony exaggerates the value of this part of Officer Losier’s evidence. I find that there is no inconsistency within Officer Jenkins’ evidence when considered as a whole, nor is there any inconsistency on this point when this testimony is placed alongside other evidence.

[58] Fourth, at approximately 3:08 pm on the day Officer Jenkins testified, counsel suggested that the officer had reversed himself during cross-examination on whether or not he had testified in chief that he had said to the home’s occupants, when they were gathered in the living room, that there would be “repercussions” and “criminal charges could follow,” if police found evidence of child pornography on devices voluntarily unlocked for the purpose of “clearing” them.

[59] I have reviewed both the evidence in chief and the cross-examination of Scott Jenkins on this point, several times. There is some initial uncertainty in the way Officer Jenkins first responds to counsel’s question. The officer initially agrees he spoke of repercussions. However, when asked directly if that was the word he used, Officer Jenkins was clear, it was not. Also, counsel suggested that Officer Jenkins told the group that criminal charges could follow. Again, he specifically denied using these words.

[60] This evidence is important because it goes to whether or not the police created an oppressive atmosphere or created an inducement to overbear the Defendant’s will in order to gain his consent to provide the password to his phone. As well, it would provide a marker with which to assess Officer Jenkins’ credibility.

[61] Again, the evidence did not support counsel’s contention. In fact, although there was no objection taken by the Respondent, there was an inaccuracy built into the questioning of the witness. During his evidence in chief, Officer Jenkins never used the words “repercussion” or “criminal charges” when describing what he had said to everyone in the living room, yet this was suggested several times during cross-examination.

[62] After an objection about the officer’s standard practise, Officer Jenkins’ testimony in chief was:

Q. So, I’m sorry, you’re saying officer, if there’s evidence…

A. Make people aware that, that they’re under no obligation to, for instance provide, ah, passcodes, or anything to their devices. ‘Cause we are there with authority to seize them. Ah, if we’re able to clear them at the, at the house, if they’re willing to let us do so, we try to make it as less, inconvenient for the occupants as possible. However, it’s also made very clear that if there is any evidence found in there, in this particular instance, child pornography, ah, there’s obviously criminal ramifications that could, ah, could follow.

[63] When I apply the factors relating to credibility and reliability noted above to Officer Jenkins’ testimony as a whole, I am satisfied that his evidence was truthful and reliable. It was uncontradicted and I accept his evidence.

[64] That said, obviously, the officer’s belief that he had not detained the Defendant is not determinative, but more will be said about this topic, below.

The Testimony of Officer Losier

[65] This officer presented extremely well. She was a credible and compelling witness in terms of the plausibility of her testimony and her apparent candour and overall demeanor. Her evidence was consistent and balanced. She admitted the limitations of her knowledge or experience and she was not contradicted or otherwise shown to be inconsistent or unworthy of belief.

[66] During cross-examination, Officer Losier readily admitted that she had not made a specific note that she had told the Defendant that he did not have to provide his password to her, but she testified that she recalled saying that and she knew that because she said this with “every single person” in that situation. She admitted she “absolutely” should have noted this part of her interaction with the Defendant.

[67] Also, the officer admitted that she had not made any note that she had told him that she would be searching the phone for photographs and videos. Officer Losier’s explanation for these omissions was that she tries to do the best she can to record her interactions with people, but she could not record everything, verbatim, which was not the world we live in. Counsel challenged her that the world we live in allows the police to audio record their interactions with people and the officer agreed. However, audio recording in this circumstance was not something she was trained to do.

[68] I found Officer Losier’s explanation for the difference in what she told the court and what she had noted believable. She did not appear confrontational or defensive while explaining herself. She was quick to admit her omissions. She was certain that she had told the Defendant that he did not have to provide the password to his cell phone and her notes corroborated her evidence insofar as she had used the word “voluntarily” in describing this interaction.[^14]

[69] Counsel for the Defendant challenged Officer Losier on her understanding of the test for detention. She explained that they did not know who was responsible for the offence they were investigating, but if they had sufficient grounds they could make an arrest. Officer Losier also explained that if someone was suspected of the offence they could be detained, but in this case there was no suspicion on her part or any other officer’s when she first dealt with the Defendant.

[70] Counsel suggested that this evidence established a lack of knowledge on the part of Officer Losier. Respectfully, I disagree. It was never asked whether she knew the difference between physical detention and psychological detention or the point at which an encounter with an individual could move from an exploratory interaction to an investigative detention. Rather, Officer Losier confined her answer to the specifics of the case at hand. She was not satisfied that there was a reasonable suspicion that the Defendant was involved in the offence they were investigating and on that basis he had not been arrested or detained when she dealt with him.

[71] Officer Losier’s evidence supports a finding that the Defendant was specifically told that he did not have to provide his password to the police, that they were going to search his phone for photographs and videos, that the phone could be seized unless it was cleared and no evidence was found. However, if I am wrong in this assessment, her evidence that the defendant was aware of his jeopardy when he volunteered to unlock his phone is corroborated by Officer Jenkins’ testimony on this point, which I also accept. Moreover, during submissions, counsel for the Defendant conceded that the evidence established that the Defendant was told he did not have to surrender his password and the police were looking for evidence of child pornography or to clear devices which contained no evidence.

ANALYSIS

[72] The Respondent concedes that if the Defendant was detained before or during his encounter with Officer Jenkins and during his subsequent discussion with Officer Losier, “all of the dominoes fall.” I took this to mean that the prosecutor conceded that the Defendant’s s. 9 right would have been violated because there was no lawful authority to detain him, absent a reasonable suspicion of criminality, which, at that time did not exist. Also, the Defendant’s s. 10(b) right would have been violated because he was not given his rights to counsel immediately upon detention. Furthermore, the seizure of the Defendant’s password would have been unreasonable and contrary to s. 8 of the Charter, given that he had been conscripted to participate in his investigation without being made aware that he had the right to speak to a lawyer and prior to a reasonable opportunity to exercise that right.

[73] Counsel for the Defendant submitted that the reasonable person would have been psychologically detained in all of the circumstances the Defendant faced that morning. He had been awoken, told to get dressed and to go downstairs. He was asked to join an officer in the kitchen. There was no explanation given that he was free to leave the house or that he could move about by simply requesting it.

[74] The Respondent sought to rebut the suggestion of psychological detention by placing reliance on cases that found a detention in similar circumstances where police directions were coupled with incriminating questions. In this case, Officers Jenkins and Losier did not attempt to elicit any incriminating answers from the Defendant.

[75] In R. v. Owen, a similar case involving the same investigating officer, the court concluded that the Defendant had been detained in similar circumstances to those at bar:

34 In this case, I accept Cst. Jenkins' evidence that he did not have grounds to detain the applicant before questioning him and that, in his mind, the applicant was free to go. However, it was unreasonable of Cst. Jenkins to think that a reasonable person would not consider him or herself detained in the circumstances.

35 Seven police officers had just made an early morning entry into a home. The applicant had just been woken up and escorted by a uniformed police officer from his bedroom into his living room. He was not told anything by the police about whether he was being arrested, detained, or was free to go. The police officers had effectively taken control of the home and were walking around preparing to do a search of it. Any reasonable person in these circumstances would conclude that he or she was detained. I also accept the applicant's subjective belief that he did not think he was free to go.

36 Even if the applicant was not detained when he was in the living room, he was detained once he was summoned to the kitchen by Cst. Jenkins. When Cst. Jenkins told the applicant to join him in the kitchen, it was reasonable in the circumstances for the applicant to conclude that he had to go. As such, the very latest that the applicant was detained was from the moment Cst. Jenkins summoned him into the kitchen.

37 Because the police had no grounds to arrest or detain the applicant prior to questioning him, and after they had cleared the house, his detention was unlawful and a violation of s. 9 of the Charter.[^15]

[76] In that case there were some notable differences in the circumstances from those faced by this Defendant. Mr. Owen testified that he felt detained when he was led by a uniformed officer to the living room where he was “sequestered” and told where to sit by police. Also, the court found that Officer Jenkins “summoned” the Defendant to the kitchen and the Defendant felt compelled to go. The court also referred to the actions of the police as holding Mr. Owen “incommunicado.” I take that to mean he was unable to speak to anyone, due at least in part, because his cell phone had been seized by police. Mr. Owen testified that he had no knowledge of what was going on or why the police were in his home. Lastly, the Defendant was asked focused questions about whether his father was “responsible for illegal activity,” whether he knew what “freenet” is, and whether or not Mr. Owen was “using freenet to download illegal material.” By contrast, the evidence in this case established that:

i. The Defendant and the other residents could move between the living room and the dining room;

ii. The Defendant chose where he wanted to sit; that he stood when he wanted to stand;

iii. The Defendant appeared to be cooperative and engaging;

iv. The police made it clear why they were present, what they were seeking, and how they proposed to clear the residents’ devices if they wanted to give the police access to them;

v. In response to a request to join the officer in the kitchen, the Defendant led Officer Jenkins there and he sat in the chair closest to the exit to the hallway while the officer was positioned against the wall;

vi. No probing questions narrowing the focus of the investigation were asked of the Defendant; and

vii. The Defendant is almost middle aged, Caucasian (as were the two officers with whom he spoke), and he is significantly taller and larger than Officer Jenkins (who is not a small man) and Officer Losier.

[77] I have considered whether the absence of information created a psychological detention of the Defendant. He was not told by the police that he was free to leave or upon request he could be escorted anywhere in the residence. It was explained by Officer Jenkins that having a police escort would help to prevent the occupants from startling officers engaged in searching the residence.

[78] This informational gap could easily have been filled by Officer Jenkins. There was no explanation provided for the failure to advise the residents that they did not have to stay in one area or even remain in the house at all.

[79] I accept both officer’s testimony that they did not intend to detain anyone and they were willing to let the occupants leave upon learning their names and ascertaining if they had any devices on them.

[80] I also accept the unchallenged evidence of Officer Jenkins that his conversation with the Defendant in the kitchen was not necessarily “light,” but it was certainly “amicable.”

[81] “The length of the encounter said to give rise to the detention may be a relevant consideration.”[^16] The Defendant was asked by Officer Losier to head downstairs so that she could search his bedroom. According to Officer Jenkins, the Defendant arrived in the living room at approximately 7:07-7:08 am. He spoke with Officer Jenkins in the kitchen from 7:09 am until approximately 7:17 am. The Defendant returned to the living room or dining room area where he remained with Mr. Flint and Ms. Paul until Officer Losier spoke to him at some time after 7:35 am. By 7:43 am Officer Losier had found child pornography on the Defendant’s phone and communicated this to Officer Jenkins. At 7:53 am Officer Jenkins arrested the Defendant and provided his s. 10(b) Charter rights.

[82] There is no doubt that the Defendant’s encounter with the police that morning was not fleeting or brief. Any negative or coercive effect caused by the investigation until the Defendant was arrested is mitigated by the circumstances of the situation:

i. The Defendant was not alone;

ii. The Defendant was in his own home as an observer with limited, cordial, interactions with the police who were occupied with searching for evidence;

iii. The Defendant was permitted to dress according to his level of comfort prior to leaving his bedroom to allow the police to search it;

iv. The Defendant sat where he wanted and appears to have moved from the living room to the dining room at some point;

v. The Defendant appeared comfortable and willing to cooperate with the police;

vi. Most of the police in the residence were casually dressed (Officer Jenkins wore jeans) with police crests on their shirts, while two uniform officers remained on scene at the front of the home (for some period of time both were inside the front door) for possible transportation of any arrestees; and

vii. At least one officer, likely the exhibit officer, was standing near the living room and dining room area to answer the residents’ questions and “maintain continuity” over them. It was suggested in cross-examination that this officer would have been present to supervise or control the occupants of the home, but Officer Jenkins soundly rejected the characterization of that officer’s role in such “strong” terms.

[83] I find that these circumstances although not necessarily pleasant, they were not uncomfortable, stress-inducing (beyond the initial surprise of the police attendance at the home), aggressive, or confrontational. The officers who testified seemed truly interested in getting their warrant executed with the least amount of intrusion possible. Their repeated explanations of what was happening, what they were seeking, how they could reduce the inconvenience of having one’s phone or computer taken away for analysis were genuine and considerate, in all of the circumstances. Without any evidence to the contrary, and no significant challenge to this evidence, I am not satisfied on a balance of probabilities that any reasonable person would have felt compelled to cooperate, stay in one spot, or feel psychologically detained, in all of the circumstances.

[84] Again, the evidence in this case is similar but markedly different from the circumstances experienced by Mr. Owen. The evidence in this case, and my finding that the officers who testified were truthful and reliable on these issues, stands in stark contrast with the evidence before the court in Owen. It should not be surprising in light of my findings that a different result would ensue.

Was the Defendant’s Consent Valid

[85] Both parties agree that R. v. Wills, 1992 2780 (ON CA), [1992] O.J. No. 294 (C.A.), remains good law for the issue of informed consent.

[86] Several principles may be found in the decision:

i. “Acquiescence and compliance signal only a failure to object; they do not constitute consent;”[^17]

ii. It is naïve to equate interactions with the police and those of private individuals. There is an element of authority, if not compulsion, to requests made by the police that is absent as between most strangers;[^18]

iii. The concept of informed consent recognizes and supports notions of freedom, self-determination, and autonomy;[^19] and

iv. Given what is at stake when an individual decides to consent to provide information to the state which may be used against them, the lack of a neutral arbiter to supervise the process, as well as an absence of access in most cases to legal advice, it is necessary to create a stringent threshold to find a valid waiver.[^20]

[87] There are six components that the prosecution must establish to a probable standard before a valid consent may be found:

i. There was a consent, express or implied;

ii. The giver of consent had the authority to provide what was given;

iii. The consent was voluntary – i.e., not the product of coercion, oppression, or other factors which negate the freedom to choose whether or not to permit the police to pursue a particular course of conduct;

iv. The giver of consent is aware of the nature of the police conduct for which consent is being sought;

v. The giver of consent is aware of the right to withhold consent or to refuse to permit the police to pursue the requested course of conduct; and

vi. The giver of consent is aware of the potential consequences flowing from the provision of consent.

[88] Given that the seizure of the Defendant’s password was warrantless, the prosecution bears the burden to prove on a balance of probabilities that the seizure of the password was authorized by law, the law is reasonable, and the seizure was reasonable. If it is established to the civil standard that the Defendant gave a valid consent, no Charter violation can be found.[^21]

[89] The prosecution submits that a valid waiver can be found on the facts of this case. The Defendant was told by both Officer Jenkins and Officer Losier that he did not have to provide access to his device, if he gave the password, police would look in his phone, if evidence of an offence were discovered, it may be used in a prosecution, if he refused to provide his password his phone was still going to be seized. The Defendant was given a version of this information three times: once in the main group in the living room, once in the kitchen, and once by Officer Losier.

[90] The Defendant’s position largely rested on three bases: the police failed to tell the Defendant that he could rescind his consent at any time; the police failed to provide the Defendant an opportunity to consult counsel before seeking consent; and because the state failed to take adequate measures to record the provision of consent the prosecution cannot meet its evidentiary burden.

[91] The supposed failure to tell the Defendant he could withdraw his consent at any time was immaterial in this case. It must be remembered that the police had judicial authority to seize the Defendant’s phone. The Defendant was told that his phone could be cleared and returned to him if he provided access and the police could quickly verify it contained no illegal material. While it would certainly have been an inducement for anyone who suffers cell phone separation anxiety, it could hardly be said that the failure to advise the Defendant that he was free to change his mind at any time would have overborne his will and caused him to act in a manner he otherwise would not.

[92] With respect to the request made by Officer Losier, there is also an aspect of immediacy which obviates the potential to withdraw consent. Once the Defendant told Officer Losier, “sure, no problem” he rose from his seat, he put his thumb on the device and his phone was unlocked. Unlike a consent search of a home, which would take more than a couple of seconds, the concept of withdrawing consent in this context is almost meaningless.

[93] Counsel for the Defendant suggested that the threat to remove the phone coupled with the inducement to speed up the process, in the context of a failure to be told he could speak to a lawyer precludes a finding of free-will and independent choice. Again, while it may have been somewhat unnerving to refuse an offer to clear one’s phone when everyone else was consenting, I have no way to measure if and to what extent this affected the Defendant’s will. I do not find that these circumstances would have deprived the Defendant of his autonomy. Instead, I accept the police evidence that he was being cooperative. This may have been tactical (to shift suspicion) or genuine. It matters not. It was apparent that the Defendant wanted to provide his password and the uncontradicted evidence of his own words support this finding.

[94] I agree with the prosecutor that the mere mention of the fact of the authority to seize the cell phone was not enough to coerce the Defendant to act involuntarily. The circumstances surrounding the mention of this plain reality could hardly have altered this fact into a coercive threat.

[95] Lastly, I accept that the recording of the provision of consent could have proceeded differently. During cross-examination, counsel for the Defendant suggested a multitude of ways this occurrence may have been better memorialised. That said, the evidence that is accepted provides an ample basis to find on a balance of probabilities that the stringent test for waiver has been met.

Section 24(2) of the Charter

[96] After a full consideration of all of the evidence and submissions, I have not found any infringements of the Defendant’s constitutional rights. In these circumstances it is artificial and impractical to assume one or more violations in order to rationalize an analysis I am not required to make. If this were a simpler set of facts involving a single constitutional breach it would be easier to posit this analysis in the event of error. In this situation, the task is daunting and unrealistic.

CONCLUSION

[97] I am not satisfied that the issuance of the search warrant, or the manner of its execution, including the voluntary provision of the Defendant’s password to the police abrogated his constitutionally protected rights. The search warrant was validly issued. There was no arbitrary detention during the approximately 50 minutes while the Defendant sat comfortably in his home and apparently moved about without control or any psychological loss of liberty. The police were not obligated to inform the Defendant that he could contact a lawyer, nor to provide any opportunity to do that. Lastly, when the Defendant provided the police with his thumbprint and numeric passcode to his cell phone he did so willingly in full knowledge of the possible consequences of that choice. He decided to participate in his own investigation and he cannot now complain about the consequences of that decision.

[98] The applications are dismissed.

Released: 22 February 2019

Justice G. Paul Renwick

[^1]: R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8 at para. 40. [^2]: R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 at paras. 59-85. [^3]: R. v. Collins, 1987 84 (SCC), [1987] S.C.J. No. 15 at para. 23. [^4]: Grant, supra, at para. 15. [^5]: Grant, supra, at para. 26. [^6]: Grant, supra, at para. 38. [^7]: R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33 at para. 3. [^8]: Grant, supra, at para. 43. [^9]: Grant, supra, at para. 39. [^10]: R. v. Harris, 2007 ONCA 574, [2007] O.J. No. 3185 (C.A.) at para. 34; note that A.C.J.O. O’Connor dissented on the s. 8 issue. Also note that in R. v. Mhlongo, 2017 ONCA 562, [2017] O.J. No. 3439 (C.A.) at para. 36, the court took no issue with the s. 8 finding in Harris. [^11]: R. v. Wills, 1992 2780 (ON CA), [1992] O.J. No. 294 (C.A.) at paras. 85-89. [^12]: R. v. Garofoli, 1990 52 (SCC), [1990] S.C.J. No. 115 at para. 56 and R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65 at para. 51. [^13]: R. v. Porter, [2016] O.J. No. 4654 (S.C.J.) at paras. 38 and 53. [^14]: The application materials included a copy of Officer Losier’s notes. On this point they read: “asked [S.L.] if he will voluntarily give me password for his cell phone so that I can clear it and not have to seize it if there is no evidence on it.” [^15]: R. v. Owen, [2017] O.J. No. 5756 (C.J.) at paras. 34-37. Note that the Applicant in the case before me did not testify, but in several other respects the evidence before that court resembles the evidence here. [^16]: Grant, supra, at para. 42. [^17]: Wills, supra, at para. 44. [^18]: Wills, supra, at para. 45. [^19]: Wills, supra, at para. 47. [^20]: Wills, supra, at para. 49. [^21]: The Defendant concedes that the s. 7 right to security of the person which is animated by our understanding of the right to be free from self-incrimination is encompassed by s. 8 in this context.