Ontario Court of Justice

Date: April 8, 2021 Court File No.: 18-A38668

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SAMIR ADEM, SALEM AHMED, SAMATAR HASSAN and ADIL ZENO

Before: Justice P.K. Burstein

Heard on: March 8 and 9, 2021 Reasons for Judgment released on: April 8, 2021

Counsel: M. Hill..................................................................................................... counsel for the Crown A. VanderHeyden.............................................................. counsel for the accused Adem A. Herscovitch................................................................ counsel for the accused Ahmed Y. Eshetu......................................................................... counsel for the accused Hassan J. Louch................................................................................ counsel for the accused Zeno

BURSTEIN J.:

Overview

[1] In the early morning hours of December 29, 2018, officers from the Durham Regional Police Service (“DRPS”) executed a search warrant at 21 Todd Street in the Town of Ajax. The police found nine people, including the four accused, in the two-storey house. All nine were taken into custody. A handgun was located in one of the upstairs bedrooms hidden between a mattress and its box spring. During the search, the police also seized four cell phones – two of which were located in an upstairs bedroom (although apparently not the bedroom in which the handgun was found) and two more which were located in a basement bedroom. None of the cell phones were located on the person of anyone who was arrested.

[2] The four cell phones were forensically examined some months later pursuant to a second search warrant which was obtained on February 26, 2019. That warrant authorized the police to search the data contained within the following electronic areas of the four cell phones:

(a) Incoming and outgoing phone call logs from December 27 2018 at 00:00 AM until December 30 2018 at 00:00 AM

(b) Incoming and outgoing text message and any applications used for communications from December 27 2018 at 00:00 AM until December 30 2018 at 00:00 AM

(c) Contacts

(d) Picture Gallery

In searching the “Picture Gallery” of each cell phone, the police examiner discovered several videos and images depicting a handgun similar in appearance to the one seized being wielded by various individuals -- individuals who the police opine are the four accused. Those four men now stand charged with various offences relating to the illegal possession of the handgun.

[3] The four accused have elected to be tried before me. The Crown has indicated that it intends to lead evidence of the videos and images discovered on the cell phones in support of the allegation that each of the four accused had knowledge of the presence of the handgun and that each had exercised some degree of “control” over that firearm. In support of its case, the Crown also intends to rely on the fact that the accused and cell phones were found together in the same house and the fact that the videos on those cell phones were recorded within a day or two of the police entering the home and seizing the handgun.

[4] The four accused have challenged the admissibility of the evidence concerning the cell phones on the basis that the seizure and search of those devices violated their s. 8 Charter rights. They submit that the information to obtain the search warrant (“ITO”) authorizing the examination of the cell phones was insufficient on its face to justify the issuance of the cell phone search warrant. They further argue that the search warrant authorizing the examination of the cell phones violated s. 8 of the Charter by virtue of its overbroad scope. The defence claims that the evidence must be excluded pursuant to s. 24(2) of the Charter because the constitutional deficiencies in the ITO, combined with other alleged Charter-infringing conduct, render the s. 8 violation in this case serious. Taken together with the impact on the important privacy interests associated with the contents of the cell phones, the accused submit that theses considerations outweigh the societal interest in having otherwise reliable evidence admitted at trial for such serious charges.

[5] The Crown responds to the defence Charter challenge by asserting that, apart from Mr. Zeno’s connection to the fourth of the seized cell phones (“Cellphone #4”), the four accused do not have standing to complain about any alleged s. 8 violations in relation to the cell phones. That said, the Crown fairly concedes that the ITO relating to the cell phones was facially insufficient. However, the Crown submitted that the details contained in that ITO should be amplified by the details which were found in “Appendix D” to the ITO relating to the initial search of 21 Todd Street two months earlier. If amplified by those additional details, the Crown contends that the warrant authorizing an examination of the cell phones could properly have been issued. In the further alternative, the Crown submits that any s. 8 violations in this case were neither serious nor significant enough to justify excluding the evidence.

[6] The hearing on the defence s. 8 challenge to the cell phone search warrant proceeded on the basis of a paper record presented by both parties consisting of:

(1) The ITO for the search of 21 Todd Street on December 29, 2018.

(2) The Warrant to search of 21 Todd Street on December 29, 2018.

(3) The “Report to a Justice” relating to the firearm and four cell phones which were seized from 21 Todd Street on December 29, 2018.

(4) The ITO for the examination of the four cell phones.

(5) The Warrant authorizing the examination of the four cell phones, dated February 26, 2019.

(6) A Synopsis of Evidence concerning the brief police investigation which led up to the Warrant to search 21 Todd Street and which summarized the results of the forensic examination of the cell phones.

(7) A supplementary Agreed Statement of Facts providing a more detailed description of the seemingly incriminating images and videos discovered by the forensic examination of the cell phones.

(8) Three police reports providing further details about the conduct of the police during the investigation.

For the purposes of this application, there was no contest about the credibility or reliability of any of this evidence. Neither party sought to call any viva voce evidence at the hearing of the application.

Do the four accused have “standing” to seek a remedy for any s. 8 Charter violation involved in the seizure or search of the four cell phones?

[7] In order for a person charged with a criminal offence to seek a remedy for an alleged s. 8 Charter violation, they must establish a reasonable expectation in the subject matter of the search, i.e., that the person subjectively expected it would be private and that this expectation was objectively reasonable: see R. v. Edwards, [1996] 1 S.C.R. 128 at para. 45. The question of whether the rights claimant had such an expectation of privacy is to be determined based on a “totality of circumstances” with reference to factors set out by the Supreme Court of Canada in Edwards.

[8] In two recent decisions, R. v. Marakah, [2017] 2 S.C.R. 608 and R. v. Reeves, 2018 SCC 56, the Supreme Court of Canada made clear that expectations of privacy in the contents of electronic devices, such as cell phones and computers, are not defined by age old property concepts of possession or control. Applying the factors listed in Edwards, the Supreme Court of Canada held that the focus must be on the nature of the electronic information to be searched and not on who owned or controlled the device.

[9] Even though the police had searched a third party’s cell phone in Marakah, the determining factor in that case was the fact that the search had targeted electronic recordings of conversations involving the accused and the cell phone’s owner. The “private electronic space” in which those conversations had originally taken place weighed in favour of the objective reasonableness of both parties enjoying an expectation of privacy in the recordings of those conversations stored on the cell phone. Furthermore, the content of the conversations showed that the parties had reasonably expected that any record of those conversations would remain sheltered from the prying eyes of state agents. The mere risk that the cell phone’s owner may have chosen to share the electronic record of those conversations with others did not negate the reasonableness of the accused’s expectation that they would remain private: see also R. v. Wong, [1990] 3 S.C.R. 36.

[10] The Crown contends that the holding in Marakah does not support a finding that any of the accused in this case had a reasonable expectation of privacy in the electronic images and videos contained on the four cell phones. The decision in Marakah, says the Crown, was concerned about electronically recorded conversations, not images and videos. The Crown submits that there is nothing communicative involved in taking someone’s photograph or in video recording them. Therefore, absent any evidence of ownership or control of the cell phones, the accused cannot lay claim to s. 8 Charter protection over their electronic contents. [^1]

[11] Based on the record before me, I am satisfied that all four accused enjoyed a reasonable expectation of privacy in the subject matter of the impugned cell phone searches. According to R. v. Jones, [2017] S.C.J. No. 60, a rights claimant is entitled to rely on the prosecution theory as to how seized evidence proves a charge when the rights claimant is called upon to demonstrate a reasonable expectation of privacy in the evidence seized. The prosecution theory that all four accused exercised control over the firearm is in part based on the fact that the four accused were found in the same house as the gun (even though there is no evidence that any of them were located in the same room as that gun). That prosecution theory equally supports the accuseds’ s. 8 claim in relation to the phones found in the same house as the gun. The prosecution theory also contends that the time stamps on the videos circumstantially prove that all four accused were involved in the use of the seized cell phones to record the incriminating videos in the days leading up to the police seizure of the phones on December 29, 2018. On the prosecution theory, regardless of who may have owned the phones, the four accused collectively used them to record the impugned videos. This feature of the prosecution theory strongly supports granting all four accused standing to challenge the admissibility of the cell phone recordings.

[12] In addition to the prosecution theory concerning use and control of the cell phones in the days leading up to their seizure by the police, the Crown claims that the persons depicted in the videos were the four accused. In other words, on the prosecution theory, the accused have a “direct interest” in the content of what was searched (and seized) from the cell phones. Contrary to the submissions of the Crown, I am satisfied that the act of video recording a person using a cell phone does involve a conveyance of information between the person being recorded and the person doing the recording. Those communications may involve words, actions or both. More importantly, given that people will typically carry their cell phones with them at all times (as compared to other more traditional recording equipment, like cameras), cell phone videos may involve the capture of very private interactions between the recordee and the recorder. In this case, as in Marakah, the electronic recordings captured personal information about the lifestyle of those involved in the recording -- that they were proud to have access to an illegal handgun. Although none of the accused testified about subjectively expecting the recordings to remain private, given the illegal nature of the activity depicted, that expectation is a compelling inference. There was nothing in the evidence before me to suggest otherwise, such as evidence that the parties involved in the recordings created them for the purpose of sharing them publicly. [^2] The content of the subject matter targeted by the police search is another factor which weighs heavily in favour of recognizing a reasonable expectation of privacy over the recordings in relation to each of the four accused.

[13] Having considered the circumstances in their totality, I am satisfied that the four accused have established a reasonable expectation of privacy over the subject matter of the cell phone examination [^3] and, thus, that they have standing to bring their s. 8 Charter challenge to the admissibility of the evidence obtained.

The scope of judicial review on a s. 8 Charter challenge to a search warrant

[14] To obtain the search warrant to examine the cell phones, the police needed to satisfy the justice of the peace that there were "reasonable and probable grounds" to believe that evidence would be found on those cell phones relevant to the offences resulting from the discovery of the handgun in the house on December 29, 2018. This standard required the police to provide the justice of the peace with information upon which the justice could find that there was a "credibly based probability" that such evidence would be discovered: see R. v. Morris (1998), 134 C.C.C. (3d) 539 (NSCA) and R. v. Debot, [1989] 2 S.C.R. 1140 at para. 47. The information was presented to the justice of the peace in the form of an “information to obtain” the search warrant, i.e., an ITO.

[15] The “credibly based probability” determination involved both a subjective and an objective component. In the ITO, the police affiant had to attest to a belief in the existence of reasonable and probable grounds and had to demonstrate a basis for the justice to find that this belief to have been objectively reasonable; see R. v. Storrey, [1990] 1 S.C.R. 241 at p. 250.

[16] The issuing justice was required to make a judicial determination as to whether sufficient grounds existed for issuance of the cell phone search warrant. The judicial determination was based on the facts conveyed in the ITO. The issuing justice was entitled to consider the training and experience of any officer who offered an opinion in support of the search warrant being issued. The issuing justice was also permitted to draw reasonable inferences from the facts set out in the ITO: see R. v. Nero and Caputo, 2016 ONCA 160 at para. 71.

[17] On a review of the constitutional sufficiency of an ITO, there is a legal presumption that the search warrant was validly issued. An accused who challenges the constitutional validity of a search warrant bears the onus of establishing that the ITO was insufficient to justify issuing the search warrant. The role of a trial judge reviewing the validity of a search warrant is not to substitute his or her view for that of the issuing justice. Rather, the trial judge’s role is limited to an assessment of whether, on the basis of the material placed before the issuing justice, the warrant could have been properly issued: see R. v. Ebanks, 2009 ONCA 851 and R. v. Lao, 2013 ONCA 285.

[18] In certain circumstances, when deciding whether the warrant could properly have been issued, the reviewing judge may consider the impact of information which was not before the issuing justice: see R. v. Mahmood, 2011 ONCA 693 at para. 99. The limited scope of considering other evidence that was not before the issuing justice was explained by the Supreme Court of Canada in R. v. Morelli, [2010] S.C.J. No. 8 (at paras. 42-43):

It is important to reiterate the limited scope of amplification evidence, a point well articulated by Justice LeBel in Araujo. Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds. The use of amplification evidence cannot in this way be used as "a means of circumventing a prior authorization requirement" (Araujo, at para. 59).

Rather, reviewing courts should resort to amplification evidence of the record before the issuing justice only to correct "some minor, technical error in the drafting of their affidavit material" so as not to "put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith made" such errors (para 59). In all cases, the focus is on "the information available to the police at the time of the application" rather than information that the police acquired after the original application was made (para. 59).

Application of the relevant legal principles to this case

(1) Should the Crown be permitted to now amplify the record in support of the constitutional sufficiency of the ITO?

[19] During the hearing before me, the Crown conceded that the ITO presented in support of the cell phone search warrant was insufficient on its face to support the issuance of that warrant. The Crown submitted, however, that the investigative details contained in that cell phone ITO should be “amplified” by details which had been presented to the justice who had issued the initial search warrant for the residence back on December 29, 2018. As I will discuss more fully below, the Crown contends that the additional details in “Appendix D” of that initial ITO would have provided the requisite reasonable grounds for the issuance of the cell phone search warrant.

[20] I am not satisfied that “Appendix D” satisfies all of the jurisprudential requirements for admission as “amplification evidence” on the s. 8 application. There is little doubt that “Appendix D” was “information available to the police at the time of the application”. However, in the absence of any testimony from any police officer explaining why it was omitted from the cell phone ITO, I am unable to find that its omission was a good faith “technical error in the drafting”. More importantly, considering that the Crown contends this proposed amplification evidence could have reasonably grounded an otherwise deficient search warrant application, I cannot say that the omission of “Appendix D” was “minor”. Indeed, despite the fact that the police were obviously aware of “Appendix D”, allowing that evidence to retroactively justify the issuance of the cell phone search warrant would, in the circumstances of this case, amount to a circumvention of the prior authorization requirement.

[21] Before leaving the issue of whether “Appendix D” was properly admissible, I should note that there was no evidence to support a finding that it was deliberately omitted by the police in an attempt to gain some tactical advantage. Omission of the details in “Appendix D” only weakened the grounds presented in support of searching the cell phones. Despite the fact that the search warrant was granted, omission of “Appendix D” could have resulted in a denial of the cell phone search warrant.

(2) Was the ITO constitutionally sufficient to justify the issuance of the warrant to search the cell phones?

[22] As noted above, the Crown has conceded that the ITO did not provide an objectively reasonable basis for believing that an examination of the cell phones would likely produce evidence related to the illegal possession of the handgun. Given my decision that the proposed amplification evidence was not properly admissible on the s. 8 issue, the Crown’s concession about the ITO’s insufficiency is enough to end this inquiry.

[23] During the hearing, I queried whether I was bound by the Crown’s concession in this regard: see R. v. Lahiry, [2011] O.J. No. 5071 at para. 35 (S.C.J.). For the reasons set out below, I did not need to decide whether this was a case in which I could [^4], or should, exercise a discretion to reject the Crown’s concession about the ITO’s insufficiency. I proceeded on the basis of the Crown’s concession that, unless amplified by the details in “Appendix D” of the initial ITO, the ITO for the cell phone search warrant was constitutionally insufficient.

[24] Given my decision on standing, the Crown’s concession leads me to find that the s. 8 rights of the four accused were violated by the examination of the cell phones. I turn then to the question of whether the evidence discovered as a result of the police examination ought to be excluded pursuant to s. 24(2) of the Charter.

(3) Have the accused established that s. 24(2) of the Charter requires exclusion of the evidence of the cell phones’ contents?

[25] In R. v. Grant, [2009] S.C.J. No. 32, the Supreme Court of Canada held that the fate of evidence obtained following one or more Charter breaches depends on whether it is shown that admission of that evidence would likely bring the administration of justice into disrepute. The burden remains on the accused seeking an exclusionary remedy to satisfy the trial judge that the administration of justice could be brought into disrepute having regard to the following three factors:

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

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

iii. The societal interest in an adjudication of the case on its merits.

i. Seriousness of the Charter-infringing state conduct

[26] The defence contends that the s. 8 violations occasioned by the facially deficient cell phone ITO were rendered more serious by virtue of a larger pattern of police disregard for the Charter. The defence asserts that there were other Charter violations during this investigation which demonstrated this alleged pattern: the dragnet surrounding the house prior to the execution of the search warrant on December 29, 2018; the misleading disclosure in the “report to justice” filed in relation to the cell phones seized on December 29, 2018; and the overly broad scope of the cell phone search.

[27] I am not satisfied that the evidence presented to me on the application supports a finding that the police engaged in a pattern of other Charter-infringing conduct, such as an unauthorized dragnet or a misleading “report to justice”. The one instance where persons leaving the residence on December 28, 2018 were stopped and investigated does not prove on a balance of probabilities that anyone and everyone who left or attended the house were detained for investigation. Similarly, the defence claim that the occupants of the residence felt that they were being detained by the police inside the house was unsupported by any evidence in the record before me.

[28] As for the “report to justice”, I am not satisfied that the statement about the police having “no expectation that the [cell phones] would be present in the dwelling house” was designed to mislead the justice. On its face, the statement can understandably be read to mean that the police went into the residence on December 29, 2018 focused on finding the handgun and that the discovery (and seizure) of the cell phones was only an afterthought. It would be unreasonable to read that statement as meaning that the police believed that no one inside the residence would be in possession of a cell phone. When properly considered in context, the statement seems to refer only to the fact that the police had no grounds to believe that those particular four cell phones would be present in the residence when they entered on December 29, 2018. Even if read as the defence contends, the alleged misstatement would not have afforded any investigative advantage to the police. The warrantless seizure of the cell phones (pursuant to s. 489 of the Code) and their continued detention was well justified without the statement: see R. v. Fearon, [2014] S.C.J. No. 77 (at para. 48). In the absence of any cross-examination of the attesting officer on this point, the accused have failed to establish that the statement in the “report to justice” was deliberately misleading or that it was otherwise made in “bad faith”. [^5]

[29] I am also not satisfied that the cell phone search warrant authorized a constitutionally overbroad examination of the electronic contents by allowing for a search of the entire “Contacts” and “Picture Gallery” folders. Again, the limited record before me fails to establish that there was a less intrusive means for examining the contents of those folders while still permitting a thorough search for all of the potentially relevant information. Even were I to assume that such an examination was conceivable, the evidence on this application fails to show that it was technologically feasible in the context of these particular cell phones having regard to the hardware and software involved. In any event, I am not persuaded in the context of this case that searching the entire folder of photos on each cell phone was overbroad. The search for evidence on the cell phones related to not just whether there were images of persons possessing the handgun, but also whether there was evidence connecting the occupants of the house to the cell phones themselves. The fact that an image or video of one of the occupants may have dated back months or years prior to December 29, 2018 would not deprive it of probative value on the issue of who had control of the cell phone upon which the image or video resided.

[30] In this case, the real inquiry on the issue of the seriousness of the s. 8 violations concerns the nature of the ITO’s deficiency. Probable cause is one of the core elements of the privacy protection afforded by s. 8 of the Charter: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145. A search conducted without reasonable grounds is a serious departure from the requirements of s. 8: R. v. Greffe, [1990] 1 S.C.R. 755. While the Crown has conceded that, absent the amplification evidence, the ITO did not provide objectively reasonable grounds for the issuance of the cell phone search warrant, the Crown alternatively argues that this additional (amplification) evidence should be considered as mitigation of the seriousness of the s. 8 violation. The defence contends that the s. 8 violations in this case were serious because the cell phone ITO was materially deficient, with or without the amplification evidence.

[31] Although not properly considered on the s. 8 inquiry as an “amplification” of the evidence placed before the issuing justice, I am satisfied that it is appropriate to consider the contents of “Appendix D” to the initial search warrant on the s. 24(2) inquiry relating to the cell phone searches. There is no dispute that “Appendix D” was evidence in the possession of the police at the time they applied for the cell phone search warrant. As I have already observed, neither the Crown nor the defence sought to call the police affiant as a witness on this Charter application. In the same way that the Crown was thereby precluded from arguing that “Appendix D” should be included in the record on the s. 8 inquiry because its omission was inadvertent, the defence is equally precluded from arguing that “Appendix D” should be excluded from the s. 24(2) inquiry because its omission was deliberate or reckless. There is no doubt that the omission of “Appendix D” was an investigative blunder. However, isolated instances of investigative negligence do not generally support a finding of “bad faith”. In the circumstances of this case, having regard to the nature of the s. 24(2) inquiry (as compared to the s. 8 inquiry), I see the consideration of “Appendix D” at this stage as being analogous to a judicial consideration of previously edited details under “Step 6” of the Garofoli framework. The information in “Appendix D” was known to the police at the time they applied for the cell phone search warrant. [^6]

[32] The only basis articulated in the ITO for believing that a search of the cell phones may reveal incriminating images was the following reference to an investigator’s experience:

I was advised by DC BACON that it is in his experience that people who possess firearms illegally are known to take what are deemed to be trophy pictures and store them within their devices to show their associates.

[33] On the strength of cases stemming from the Supreme Court of Canada’s decision in R. v. Morelli, supra, the defence submitted that police experience about the behavioural patterns of offenders does not provide an adequate basis for the issuance of a search warrant. For example, relying on Morelli, Di Luca J. in R. v. Otto, [2019] O.J. No. 3386 (at para. 92) found that broad assumptions about the behaviour of “drug dealers” could not support the grounds for issuing the search warrant at issue before him:

While police officers are permitted to base their beliefs on experience, caution must be exercised so to not confuse "experience" with reliance on generalized or stereotypical assumptions about how certain types of people are expected to act. In my view, the use of the stereotypical assumptions about "drug dealers" adds very little to the grounds for belief in this specific case.

See also R. v. James, 2019 ONCA 288 at paras. 22 and 23.

[34] I do not read either Otto or Morelli as a blanket condemnation of reliance upon experiential-based behavioural inferences in ITOs. In Morelli, the Court was critical of the reference to the behavioural patterns of persons possessing child pornography because of the broad spectrum of persons who commit that offence and the lack of evidence in the ITO suggesting that the alleged behavioural pattern applied to the specific offender being investigated. In Otto, Di Luca J. was similarly concerned that the stereotypical assumptions in the ITO about “drug dealers” were not shown to be relevant to the police investigation of the accused physician who the ITO alleged to have been helping others obtain fake prescriptions for fentanyl.

[35] The facts of this case are materially different from Morelli and Otto in two respects. First, unlike in those cases, I am satisfied that the police affiant’s experiential link between illegal possession of a handgun and “trophy” photos on cell phones was consistent with judicial experience of the same phenomenon in the recent past: see, for example, R. v. Fearon, supra; R. v. Smickle, [2013] O.J. No. 5070 (C.A.); R. v. H.C., [2020] O.J. No. 4286 (O.C.J.); R. v. Mohamed, [2019] O.J. No. 2765 (S.C.J.); R. v. Robertson, [2018] B.C.J. No. 577 (S.C.); R. v. Saikaley, [2017] O.J. No. 2377 (C.A.); R. v. Vroom, [2016] N.B.J. No. 175 (C.A.); R. v. Rutledge, [2015] O.J. No. 1281 (O.C.J.); R. v. Johnson, [2015] O.J. No. 1281 (O.C.J.); R. v. Ball, [2014] O.J. No. 2553 (O.C.J.); R. v. Balla, [2014] A.J. No. 1211 (Q.B.); R. v. Crawford, [2013] B.C.J. No. 1102 (S.C.); R. v. Horsley, [2013] O.J. No. 2638 (O.C.J.); and R. v. Laplante, [2012] O.J. No. 4028 (O.C.J.). Furthermore, courts in Ontario have come to accept that, unlike other offences, the illegal possession of handguns gives rise to some compelling “common sense” inferences about the behavioural patterns of this particular category of offenders: see, for example, R. v. Thompson, [2020] O.J. No. 2557 at paras. 10 and 11 (C.A.). While recent judicial experience would not support an inference that possession of an illegal handgun always implies trophy photos existing on the possessor’s cell phone, the “credibly based probability” threshold does not demand such absolute causal certainty. It was enough that the issuing justice in this case could have considered recent judicial experience when assessing the objective reasonableness of the investigator’s experience-based belief that the cell phones found proximate to the handgun would likely contain such images. Second, unlike in Morelli and Otto, the details in “Appendix D” would have provided the justice considering the cell phone ITO with evidence linking the officer’s broad experience to the specific facts of this case. “Appendix D” showed that one of the accused in the house had done just what the officer’s experience had suggested; namely, the accused had recorded images of himself posing with a handgun only two days prior to the handgun’s seizure.

[36] When the statement in the cell phone ITO is considered in light of the other information already known to the police at that time (as reflected in “Appendix D”), I am satisfied that the police had reasonable grounds to support the issuance of a warrant to search the “Pictures Gallery” folder of each cell phone. In other words, while the cell phone search warrant ought not to have been issued on the strength of the deficient ITO alone, in view of “Appendix D”, the s. 8 interest requiring the existence of probable grounds was respected in this case.

[37] It is also noteworthy that there was no evidence before me suggesting that the police had engaged in any deception or malfeasance during the investigation. On the record before me, it appears that the police attempted to comply with all of the relevant legal requirements for conducting their investigation and did not attempt any constitutional shortcuts. After lawfully seizing the cell phones during their initial search of the residence, the police did not try to examine their contents prior to the issuance of the subsequent cell phone search warrant weeks later. Arguably, the police could have attempted a cursory examination of the cell phones’ contents, including the images, as a search incident to arrest pursuant to the Supreme Court of Canada’s decision in R. v. Fearon, supra. Instead, however, the police elected to wait for judicial authorization before conducting any such examination. While the ITO may have been deficient, the fact remains that the police chose to respect one of the other core features of s. 8 – prior judicial authorization.

[38] Still, the carelessness exhibited by the police in drafting the documents relevant to the seizure (i.e., the “report to justice) and search (i.e., the ITO in support of the warrant) of the cell phones prevents me from finding that the police acted in “good faith”. However, the fact that the police sought, and were granted, judicial authorization before examining the contents of the cell phones compels me to conclude that their constitutional failings fall on the much less serious end of the spectrum of s. 8 violations.

ii. Impact of the breach on the Charter-protected interests of the accused

[39] As noted in my reasons for granting all four of the accused standing to challenge the constitutionality of the searches, I accept that they all maintained a reasonable expectation of privacy in the videos recorded on the cell phones. The question at this stage of the s. 24(2) inquiry requires a more qualitative assessment of that privacy interest so that I may determine the nature of the impact of the state intrusion.

[40] Comments by the Supreme Court of Canada in Fearon may suggest that courts ought to afford a very low level of privacy protection to images stored on people’s cell phones (at para. 54):

First, while cell phone searches - especially searches of "smart phones", which are the functional equivalent of computers - may constitute very significant intrusions of privacy, not every search is inevitably a significant intrusion. Suppose, for example, that in the course of the search in this case, the police had looked only at the unsent text message and the photo of the handgun. The invasion of privacy in those circumstances would, in my view, be minimal….

[41] Assuming that those remarks were intended to characterize the privacy interests attaching to any photo stored on a cell phone, it must be borne in mind that Fearon was decided in 2014 based on evidence developed in 2012. It has often been said that defining the parameters of the constitutional right to privacy is a normative exercise. It is hard to imagine that societal expectations of privacy concerning electronic images stored on a cell phone have not evolved to a point where there is now a very significant privacy interest involved. Most young parents these days maintain images and recordings of their children on their cell phone. Many adults now seem willing to use their cell phones to record and share sexually intimate images. Cell phones have now replaced fax machines as the means for transmitting images of documents to others, documents which may sometimes contain the type of core biographical information which have long been afforded high levels of constitutional protection. Put simply, 7-year old conceptions about the societal interest in protecting the privacy of images stored on a cell phone are unlikely to still be constitutionally valid.

[42] All that said, it would also seem obvious that the expectation of privacy over images stored in a cell phone has also been altered by the ubiquitous nature of social media and the resulting compulsion to use cell phones to regularly document and publicize images of one’s daily activities. In other words, the expectation of privacy attached to an image may be impacted by how, when and where that image was created or stored on a cell phone. For example, unlike an image stored only in one of the cell phone’s internal memory folders, a recording made or stored within the confines of a social media application with no privacy restrictions may justifiably be afforded very little constitutional protection from state intrusion. Given the nature of what is typically recorded and stored in a cell phone’s electronic image folders, however, the burden must be on the Crown to rebut a presumptive high level of constitutional protection over that subject matter.

[43] In this case, the evidence said very little about where the impugned recordings were discovered on the cell phones. One of the recordings discovered during the examination of “Cellphone #3” was described as a “Snapchat Video”, but no further details were provided. There was also reference in “Appendix D” to an officer having seen a recording of Mr. Zeno holding a firearm on Mr. Zeno’s “Snapchat” social media account. There was no evidence before me as to how “Snapchat” works and whether images displayed on that social media platform are available to the public. It would not be appropriate to take judicial notice of how Snapchat functions, let alone how any particular person’s Snapchat account was set up to function. Put simply, the Crown has not dispelled the presumption that the “Picture Gallery” folders that were examined by the police contained very private information.

[44] I am satisfied that the unconstitutional search of the “Picture Gallery” folders on the cell phones had a significant impact on the privacy interests of the accused and of any third parties who may also have been captured in images stored within those folders.

iii. Society’s interest in the adjudication of the case on its merits

[45] The third factor – society’s interest in an adjudication of the case on the merits – was explained by the Supreme Court of Canada in Grant as follows (at para. 79):

Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law": R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1219-20. Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.

[46] Given the nature of the impugned recordings, the truth-seeking function of the process would clearly be better served by their admission rather than their exclusion. Video recordings are one of the most reliable forms of evidence available for the trial of a criminal case: see R. v. Nikolovski, [1996] S.C.J. No. 122. The recordings seized from the cell phones are also very important to the Crown’s case against the accused. Exclusion of the recordings would severely undermine the truth-seeking function of this trial.

iv. The final s. 24(2) balancing

[47] In sum, I have found that the s. 8 violations in this case were not very serious, but that they had a significant impact on the privacy interests involved. I have also found that admission, not exclusion, would better serve the truth-seeking function of the trial. When balanced together, the three sets of factors weigh in favour of the evidence being admitted.

[48] While this balancing is enough to persuade me to admit the recordings, I cannot ignore the abhorrent nature of those recordings and the effect which their exclusion from trial could have on the administration of justice in the circumstances of this case. In the same way that the long term reputation of the administration of justice may require exclusion of evidence as a means for dissociating the court from unconstitutional police misconduct, it would seem wrong to ignore the fact that the privacy interest in this particular case related to videos of persons deliberately posing with an illegal handgun. In the circumstances of this case, exclusion of the evidence would risk sending the message that courts will go out of their way to protect the privacy of recording such egregious conduct. Admittedly, concerns over the long term effect of excluding such evidence should never detract from the constitutional protection generally afforded to all types of electronic images stored in a cell phone. However, given my finding that the only constitutional concern related to a careless and harmless mistake by the police, the s. 24(2) balance must tilt in favour of admitting the images seized in this case.

[49] The accuseds’ Charter application is dismissed.

Released: April 8, 2021 Signed: Justice P.K. Burstein

Footnotes

[^1]: The Crown concedes that, based on the contents of the ITOs filed in support of the two Search Warrants, that Mr. Zeno has a reasonable expectation of privacy in – and thus standing to challenge the search and seizure of -- Cell Phone #4. [^2]: For example, if there had been evidence that the recordings had been created through use of a social media application where the user had disabled the privacy settings, the Crown might argue that the recordings were made with the implied intention that they would be shared publicly. Arguably, that may be qualitatively different than a mere “risk” of a privately created recording later being shared with others. [^3]: Even were I to parse the privacy interests based upon which accused is allegedly depicted on which cell phone, the result would effectively be the same, namely, that each accused has standing to challenge the admissibility of the images and videos being tendered against them. [^4]: Query whether Crown concessions about issues of mixed fact and law demand more deference than concessions about purely legal issues. [^5]: As discussed during the hearing of this application, the accused could have, but did not, apply for leave to question the police affiant for the purpose of trying to establish “bad faith” under s. 24(2): R. v. Green, [2015] O.J. No. 4428 at para. 42 (C.A.) and R. v. Bennett, [2017] O.J. No. 5264 (C.A.). [^6]: Had the justice rejected the ITO as being insufficient, the police would still have had custody of the cell phones and could have re-applied for a warrant to examine their contents. It seems obvious that any subsequent application to search the “Pictures Gallery” folders of the cell phones would have included “Appendix D” from the initial ITO.