WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(i) to (iii).
(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
( b ) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2022·08·16 COURT FILE No.: Peterborough 19-3082
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
C.M.
Before: Justice S.W. Konyer
Heard on: July 12-13, 2022 Reasons for Judgment released on: August 16, 2022
Counsel: Ms. A. Kok — counsel for the Crown Mr. B. Badali — counsel for the defendant C.M.
KONYER J.:
[1] C.M. is charged with committing the offence of internet luring, contrary to s. 172.1 of the Criminal Code, on November 7, 2019. Specifically, the allegation is that he communicated electronically with his former step-daughter, J.M., who was under the age of 18, for the purpose of facilitating the commission of the offence of sexual exploitation. The Crown has elected to proceed summarily. C.M. has pled not guilty.
[2] The evidence on the trial proper is scheduled to begin on September 6, 2022. On July 12 and 13, 2022, I heard evidence and argument on two separate but related pre-trial applications. The first is an application by C.M. to exclude evidence of Facebook messages sent by him to J.M. on November 8, 2019, the day after the offence is alleged to have occurred. These electronic messages were retrieved after police examined J.M.’s phone. The police did not obtain prior judicial authorization by way of a search warrant for these messages. C.M. claims that he had a reasonable expectation of privacy in the Facebook messages. He says that the warrantless retrieval of those messages constituted an infringement of his right to be secure against unreasonable search and seizure, as guaranteed by s.8 of the Canadian Charter of Rights and Freedoms. As a remedy for this infringement, he seeks an order excluding the evidence seized by police at his trial, pursuant to s.24(2) of the Charter.
[3] Section 8 of the Charter only protects against unreasonable state intrusion into spheres where persons have a reasonable expectation of privacy. The Crown says that C.M. did not have a reasonable expectation of privacy in the messages he exchanged with J.M. Therefore, he does not have standing to even bring a section 8 claim.
[4] If I find that C.M. had a reasonable expectation of privacy in the messages, the onus shifts to the Crown to justify the reasonableness of the warrantless search. In that case, the Crown says that the search was justified because J.M. and her mother both consented to a search of her phone. Even if I find that the search was not reasonable, the Crown argues that the evidence should not be excluded once the factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 are applied.
[5] The second pre-trial application was brought by the Crown to admit a statement made by C.M. to PC Dyer, the investigating officer. This statement was made during the course of a 17 minute phone call between C.M. and the officer on November 8, 2019. The onus is on the Crown to prove beyond reasonable doubt that any statements made by C.M. to PC Dyer during the call were voluntary. The defence argues that C.M. was not properly cautioned, and that the record of the conversation is inadequate. These two factors together should raise a reasonable doubt, according to the defence, as to voluntariness.
[6] Therefore, the issues that I must decide on these applications are as follows:
- Did C.M. have a reasonable expectation of privacy in the messages he sent to J.M. on November 8, 2019?
- If so, has the Crown proven on a balance of probabilities that there was a valid waiver of C.M.’s right to be secure against unreasonable search and seizure?
- If not, would the admission of the messages bring the administration of justice into disrepute?
- Has the Crown proven beyond reasonable doubt that C.M.’s statement to PC Dyer on November 8, 2019 was voluntary?
[7] In order to answer these questions I will first summarize the relevant evidence from the voir dire. Then I will set out the governing principles and apply those principles to the facts as I find them to be. This will permit me to answer each question.
Summary of the facts
[8] A combined voir dire was held into the admissibility of the electronic communications extracted by the police from J.M.’s phone and the admissibility of C.M.’s statement to PC Dyer. I heard testimony from PC Dyer, while C.M. provided an affidavit and was cross-examined on the voir dire.
[9] PC Dyer was dispatched to J.M.’s home shortly after 10:00 a.m. on November 8, 2019 to investigate a report made by her mother concerning suspicious texting. The officer interviewed J.M., who was 15 years of age, in the presence of her mother. She learned that J.M. and C.M., who was her former step-father, had engaged in a text conversation the previous day. Based on the information provided, the officer formed a suspicion that C.M. had committed an internet luring offence. She also learned that J.M had deleted the text messages which would have formed the basis for this offence, but believed that a forensic officer might be able to recover the deleted messages from J.M.’s phone.
[10] PC Dyer also learned that C.M. had been phoning J.M. and sending her electronic messages through Facebook on November 8, prior to the officer’s arrival. These messages had not been deleted. PC Dyer asked to see those messages, and scrolled through the phone with J.M.’s assistance. She made notes of the contents of the Facebook messages and recorded the times of the calls to J.M.’s phone from C.M. These messages are potentially incriminating. In the Facebook messages from November 8, C.M. tells J.M. that she had misinterpreted his text messages from the previous day, and offers innocent explanations for them.
[11] After reviewing the Facebook messages, PC Dyer then told J.M. and her mother that she would need to take J.M.’s phone in order to retrieve all of the messages between J.M. and C.M. PC Dyer testified that she never turned her mind to obtaining a warrant to search the phone for these electronic communications. She obtained written consent from both J.M. and her mother to search the phone, but did not consider whether C.M. could have a reasonable expectation of privacy in any of the messages.
[12] While the officer was still at the home, a call was received on J.M.’s phone from C.M. PC Dyer instructed J.M. to answer the call and place it on speakerphone. Once the call was answered, she heard C.M. immediately state “what the fuck?” and then intervened. She identified herself as a police officer, told C.M. not to have any further communication with J.M., and told him that she would contact him later.
[13] Prior to leaving J.M.’s house, PC Dyer received a message from dispatch informing her that C.M. had called the Peterborough Police Service asking to speak to her about a “misunderstanding”. The message said that he wanted PC Dyer to call him back. Shortly after leaving J.M.’s house, she parked her cruiser and called C.M. on her police-issued cell phone. Although her phone had a record function, she did not use it, as she said this was not police practice at the time. She also agreed that she could have driven to the station to return the call, and that recording equipment was available at the station.
[14] PC Dyer placed her phone in hands-free mode and did her best to record the substance of her conversation with C.M. in her notebook. Their conversation lasted 17 minutes. C.M. did the vast majority of the talking. He spoke in a rapid, excited manner and offered an innocent explanation for the text messages between himself and J.M. from the previous day. PC Dyer’s notes from this conversation covered five pages in her police notebook. She said that C.M. repeated himself, and she did her best to capture the substance of the conversation. It was impossible for her to record everything he said.
[15] PC Dyer said that when C.M. answered the phone, she immediately identified herself again as a police officer, and gave him a “soft caution”. That is, she told him that he did not have to speak to her, but that if he chose to speak to her that anything he did say would be taken down and could be used against him in court. She did not record the fact that she had issued this caution to C.M. in her notes, but had an independent recollection of having done so. When asked whether C.M. acknowledged the caution, she said that she thinks he simply launched right into his explanation for his actions.
[16] In her notes, she records that C.M. attempted to explain his actions by claiming that he was testing J.M., to which the officer responded by asking him whether he thought his messages were inappropriate. PC Dyer testified that this was the only question she asked of C.M. – the rest of the conversation was him speaking and attempting to justify his actions.
[17] Midway through the conversation, PC Dyer interrupted C.M. to caution him again. She did make a notebook entry at this point that she “re-cautioned” C.M., but she did not make any note as to whether she asked if he understood this caution, or what if anything he said in response. PC Dyer did not offer any real explanation for why she chose to interrupt his statement to caution him a second time. At the end of the call, she told him that he should speak to counsel, provided him with the 1-800 number for legal aid duty counsel, and told him that she would be in touch.
[18] C.M. provided an affidavit and testified on the voir dire. He said that he always intended his electronic communications with J.M., his former step-daughter, to remain private. In fact, J.M. had assured him on November 7 that she had deleted their text message conversation from that day.
[19] He first learned there was a problem when his current spouse contacted him at his work on November 8, 2019. She shared with him a screenshot of a message sent to her by J.M.’s boyfriend, in which the boyfriend referred to inappropriate texts sent by C.M. the previous day. As a result of this conversation with his spouse, he formed a belief that J.M. had misconstrued his messages from the day before, so he made attempts to call J.M. When she did not respond to telephone calls, he went online and discovered that had recently been using Facebook, so he sent a number of messages to her on that application. He said he intended that these messages also remain private. These messages were only viewable by J.M., and were not available for public view on Facebook.
[20] In cross-examination, he agreed that at the time he sent the Facebook messages to J.M., he knew that she had disclosed at least the substance of their text message exchange from the previous day. Despite this knowledge, he said he still expected that his Facebook messages to her would remain private.
[21] He agreed that J.M. eventually answered one of his calls, and that he spoke to PC Dyer, who told him not to contact J.M. again, and that she would be in touch with him later. He was so concerned that he left his place of work in Port Hope and drove to Peterborough to be close to the police station in the event that PC Dyer needed to speak with him. He agreed that he called the police from his car and left a message for PC Dyer to call him. He did so because he was worried and wanted to explain his side of things.
[22] When PC Dyer returned his call, he denied that she ever cautioned him. She never explained his right to silence, or told him that if he chose to make a statement it would be taken down and could be used against him in court. He said that they had a back and forth conversation, and that she asked him numerous questions throughout. Although he could not recall specifics, he was sure that much more was said by each of them than is recorded in PC Dyer’s notes.
Issues and the law
i) Did C.M. have a reasonable expectation of privacy in the electronic communications with J.M.?
[23] Section 8 of the Charter protects every person from unreasonable search and seizure by state agents like the police. In doing so, it acts “as a shield against unjustified state intrusions on personal privacy”: R. v. Kang-Brown, 2008 SCC 18, at para. 8. In order to claim protection under s.8, the person making the claim must show that they had a reasonable expectation of privacy in the object or information that was searched. Therefore, as a threshold question, I must determine if C.M. had a reasonable expectation of privacy in this case.
[24] The assessment of whether a person has a reasonable expectation of privacy is fact-specific and contextual, and must be made based on a consideration of the totality of the circumstances. In a number of cases, the Supreme Court of Canada has identified the following non-exhaustive list of factors that should be considered:
- What was the subject matter of the alleged search?
- Did the claimant have a direct interest in the subject matter?
- Did the claimant have a subjective expectation of privacy in the subject matter?
- If so, was the expectation objectively reasonable?
R. v. Marakah, 2017 SCC 59, [2017] S.C.J. No. 59, at para. 11
[25] It is only if the answer to the last question is “yes” that a claimant will have standing to make a s.8 claim. I will consider each question in turn on the facts in C.M.’s case.
a) What was the subject matter of the alleged search?
[26] The Supreme Court in Marakah emphasized that care must be taken to properly define the subject matter of the search:
The subject matter of a search must be defined functionally, not in terms of physical acts, physical space, or modalities of transmission. As Doherty J.A. stated in R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 65, a court identifying the subject matter of a search must not do so "narrowly in terms of the physical acts involved or the physical space invaded, but rather by reference to the nature of the privacy interests potentially compromised by the state action". In Spencer, at para. 26, Cromwell J. endorsed these words and added that courts should take "a broad and functional approach to the question, examining the connection between the police investigative technique and the privacy interest at stake" and should look at "not only the nature of the precise information sought, but also at the nature of the information that it reveals". The court's task, as Doherty J.A. put it in Ward, is to determine "what the police were really after" (para. 67).
Marakah, supra, at para. 15
[27] In that case, the police searched a cell phone belonging to a co-conspirator of the defendant and recovered incriminating text messages sent and received between the two parties. The trial Judge and Court of Appeal both found that Mr. Marakah did not have a reasonable expectation of privacy in messages recovered from the co-conspirator’s phone. The Supreme Court, however, held that it was not the phone, but the electronic conversation that the police were really after. The subject matter of the search was therefore defined as their electronic conversation.
[28] I reach the same conclusion in C.M.’s case. It is his interest in the electronic conversation, not in J.M.’s phone, that was at stake. It is the conversation itself that the police were really after, not the phone or any other content on the phone. The subject matter of the alleged search were the electronic conversations between C.M. and J.M.
b) Did C.M. have a direct interest in the subject matter?
[29] C.M. was a participant in the electronic conversations that the police were seeking to download. He authored messages that the Crown is now seeking to introduce in evidence against him. He clearly has a direct interest in the subject matter of the search.
c) Did C.M. have a subjective expectation of privacy in the subject matter?
[30] The requirement that a claimant establish a subjective expectation of privacy in the subject matter of a search is not an onerous burden. C.M.’s evidence was that he expected all of his electronic conversations with J.M. to remain private – both the text messages on November 7 and the Facebook messages on November 8. For analytical purposes, there is no distinction between different types of electronic communications: R. v. Mills, 2019 SCC 22, at para. 14.
[31] C.M. said that he specifically asked, and J.M. agreed, that she would delete their text message conversation from November 7. In cross-examination, he conceded that he knew that J.M. had revealed the subject matter of that conversation to her boyfriend following the call he received at work from his partner. As a result, the Crown suggested to him that he could not possibly have had any reasonable expectation that she would keep his Facebook messages private. Therefore the Crown argues that he has not even met the low burden of establishing a subjective expectation of privacy.
[32] I disagree. Section 8 protects against unjustified state intrusion into personal privacy. The question is not whether C.M. subjectively believed that J.M. was going to keep his messages private from other persons, but whether he subjectively believed that the messages would be free from warrantless state scrutiny.
[33] The Supreme Court made this point clear: “to accept the risk that a co-conversationalist could disclose an electronic conversation is not to accept the risk of a different order that the state will intrude upon an electronic conversation absent such disclosure”: Marakah, supra, at para. 40. The risk, which C.M. appreciated, that J.M. could disclose their conversations to others does not negate his subjective expectation of privacy from state intrusion in their conversation. I find, therefore, that he has established a subjective expectation of privacy in their electronic conversations.
d) Was C.M.’s expectation of privacy objectively reasonable?
[34] The reasonable expectation of privacy analysis is “laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy”: R. v. Patrick, 2009 SCC 17, at para. 14. Deciding whether an expectation of privacy is objectively reasonable is a normative question. That is, what level of privacy should Canadians expect in a free and democratic society?
[35] The Crown argues that it would run contrary to normative standards to find that C.M.’s expectation was objectively reasonable, since he was communicating with a child that he was trying to lure for the purpose of sexual exploitation. The Crown argues that it would offend normative standards to hold that such communication enjoys an objectively reasonable expectation of privacy. Doing so would run contrary to the principle affirmed by the Supreme Court that “enhancing protection to children from becoming victims of sexual offences is vital in a free and democratic society”: R. v. Mills, supra, at para. 23.
[36] Mills was a case where police conducted a sting operation by creating an online persona of a fictitious 14 year old girl. The defendant initiated an online conversation with the “child” which eventually turned sexual and led to his arrest. The Supreme Court held that, in applying a normative standard, “adults cannot reasonably expect privacy online with children they do not know”: Mills, supra, at para. 23. For that reason, “the investigative technique did not significantly reduce the sphere of privacy enjoyed by Canadians because the technique permitted the state to know from the outset that the adult accused would be communicating with a child he did not know”: Mills, supra, at para. 20.
[37] C.M.’s case is distinguishable on that basis. He and J.M. had known one another for a long time. He stood in a quasi-parental role towards her. Their online conversation on November 7 started when she texted him to ask for a ride home from the dentist. The police knew of the nature of their relationship at the time they seized J.M.’s phone for the purpose of searching it for details of their electronic conversations. Unlike Mills, here the police knew that the parties to the conversation they were after were well known to each other.
[38] The Crown relied upon three other trial court decisions (R. v. K.A., 2022 ONSC 1241; R. v. Amdurski, 2022 ONSC 1338; and R. v. Morgan, 2020 O.J. No. 2330) in support of its argument that a normative analysis of the relationship between C.M. and J.M. should lead me to conclude that it is not a relationship worthy of s.8 protection. In each of these cases, the defendants were charged with sexual offences against complainants who were either virtual strangers to them or who were acquainted only by virtue of an exploitative relationship. In those circumstances, each of the trial Judges concluded that, on a normative analysis, society had no interest in fostering privacy in those relationships. Thus in K.A., for example, the trial Judge found that a brief relationship between an alleged pimp and human trafficking victim “was not worthy” of s.8 protection: K.A., supra, at para. 54.
[39] The facts in C.M.’s case are completely different. He was not a stranger to J.M. at the time of their conversations, nor was the relationship between them one that was inherently exploitative. The assessment of the reasonableness of C.M.’s claim to an expectation of privacy must be content neutral: Marakah, supra, at para. 48. It is not the nature of the conversation between C.M. and J.M. that determines whether his expectation of privacy from state intrusion in the conversation was objectively reasonable. In a free and democratic society, I am of the view that it is reasonable to expect that electronic conversations between a 15 year old and their former step-parent would be free from warrantless state intrusion.
[40] Further, the private nature of the information likely to be shared between two people who know one another well enough to regularly communicate online is a factor to consider. Again, this is a content neutral analysis that focusses on the potential for such conversations to reveal intimate details about oneself. “Electronic conversations, in sum, are capable of revealing a great deal of personal information. Preservation of a “zone of silence” in which personal information is free from state intrusion is the very purpose of s.8 of the Charter”: Marakah, supra, at para. 37. This factor also favours a finding that C.M. enjoyed an objectively reasonable expectation of privacy in the impugned conversations.
[41] For all of the foregoing reasons, I find that C.M. had an objectively reasonable expectation of privacy in the electronic conversations at issue between himself and J.M. He therefore has standing to make a s. 8 claim.
ii) Has the Crown proven on a balance of probabilities that there was a valid waiver of C.M.’s right to be secure against unreasonable search and seizure?
[42] The parties agree that the search and seizure of the electronic conversations between C.M. and J.M. was warrantless. The onus therefore shifts to the Crown to demonstrate that the search was reasonable – meaning that it was authorized by law, that the law itself was reasonable, and that the search was carried out in a reasonable manner. The Crown relies upon the common law doctrine of consent, arguing that the search of the phone and seizure of the electronic conversations was justified because J.M. and her mother both consented to the search.
[43] There is no dispute that an individual is entitled to waive their right to be secure against unreasonable search and seizure. There is also no dispute that J.M. and her mom consented to a search of her phone in order to retrieve the impugned messages. The only issue I need to decide here is whether their consent nullified C.M.’s s.8 rights.
[44] The Crown argues that the fact that J.M. and her mother consented to a search of her phone is dispositive of the issue. The Crown relies upon the decisions in K.A., Amdurski and Morgan, all referred to above. It also relies upon the decision in R. v. Bear Knight, 2021 SKQB 258, a case where the defendant was charged with sexually assaulting a woman he had just met. While she was at the hospital, he sent her an apologetic text message. She turned over a screenshot of the text message to police. The court ruled that the defendant had no standing to bring a s.8 claim because on a normative analysis the relationship he had with the complainant, a stranger, was not worthy of s.8 protection. The court also went on to say “there is some absurdity in the notion that the police should be expected to obtain a warrant to collect evidence in the lawful possession of a person who wishes, freely and voluntarily, to provide the evidence to the police without a warrant”: Bear Knight, supra, at para. 53. The courts in K.A., Amdurski and Morgan made comments to similar effect.
[45] In each of these cases, however, the courts found that the claimant had no reasonable expectation of privacy in the impugned conversations. Therefore none of those claimants had standing to argue a s.8 claim, so any comments made that can be taken as a finding of consent or waiver are obiter. In C.M.’s case, I have found that he had a reasonable expectation of privacy in the electronic conversations at issue. It is his s.8 claim that I must consider, and whether the consent of J.M. and her mother constituted a valid waiver of his rights.
[46] The leading case on point is R. v. Reeves, 2018 SCC 56, [2018] S.C.J. No. 56. In that case, the defendant’s spouse consented to the search and seizure of a home computer on which police discovered child pornography. One of the issues before the Supreme Court was whether her consent to the search of the computer nullified the defendant’s reasonable expectation of privacy. The court held at para. 43 that
… while it is reasonable to ask citizens to bear the risk that a co-user of their shared computer may access their data on it, and even perhaps discuss this data with the police, it is not reasonable to ask them to bear the risk that the co-user could consent to the police taking this computer. In Marakah, this Court held that, when a claimant shares information with another person through a text message, he accepts the risk that this information may be disclosed to third parties. But that does not mean the claimant "give[s] up control over the information or his right to protection under s. 8" (para. 41).
[47] In my view this is a complete answer to concerns raised in Bear Knight and the other cases referred to above. While J.M. and her mother had every right to make the police aware of the online conversations between J.M. and C.M., and could choose to turn over her phone to the police to further the investigation, the police had an obligation to seek prior judicial authorization before conducting a search for the online conversations. They had such an obligation because C.M. enjoyed a reasonable expectation of privacy in those conversations. It is the conversations and not the phone that was the true object of the search. The consent of J.M. and her mother to search the phone did not extinguish C.M.’s reasonable expectation of privacy in the conversations.
[48] The seizure of the online messages was therefore not authorized by law. The Crown has failed to justify the search, and I find that C.M.’s right to be secure from unreasonable search and seizure was infringed. I turn now to the question of remedy.
iii) Would admission of the messages bring the administration of justice into disrepute?
[49] Section 24(2) of the Charter provides that where a breach has occurred, “the evidence shall be excluded if it is established that, having regard to all the circumstance, the admission of it in the proceedings would bring the administration of justice into disrepute.” To determine whether the admission of the evidence here would bring the administration of justice into disrepute I must consider the seriousness of the Charter-infringing state conduct, the impact of the breach on C.M.’s Charter-protected interests, and society’s interest in this case being adjudicated on its merits: R. v. Grant, supra. Once I have done so, I must balance these factors in order to determine whether the evidence should be admitted. I will consider each factor in turn.
a) The seriousness of the breach
[50] Police misconduct exists on a spectrum from technical or inadvertent errors committed in good faith to deliberate breaches. I must situate the police conduct here on that spectrum. In Marakah, the Supreme Court held that the search of the electronic conversation between the defendant and his co-conspirator “lacked any reasonable pretext of lawful authority” and that the conduct was “sufficiently serious to favour exclusion of the evidence”: para. 66. The same reasoning applies in this case.
[51] Furthermore, Marakah has been the law of the land since 2017. PC Dyer testified that when she conducted this search in 2019 she did not believe that C.M. had any expectation of privacy in the communications she was searching for on J.M.’s phone. Even today she does not consider that he has privacy interests that would require her to seek a warrant. Her evidence in this regard is troubling and suggests that she was at least indifferent to C.M.’s Charter rights. Wilful ignorance or indifference to Charter standards cannot be equated with good faith. This tends to increase the seriousness of the breach. On a spectrum, the breach in this case falls closer to the more serious end. This factor pulls strongly towards exclusion of the evidence.
b) The impact of the breach
[52] For section 8 breaches, this line of inquiry focusses on “the magnitude or intensity of the individual’s reasonable expectation of privacy, and on whether the search demeaned his or her dignity”: R. v. Cole at para. 91. Again, Marakah is instructive. In that case, the Supreme Court held that the search revealed private information going to the defendant’s biological core and that the police conduct “obliterated” his reasonable expectation of privacy. “The impact on Mr. Marakah’s Charter-protected interests was not just substantial; it was total”: Marakah, supra, at para. 67.
[53] The court also held that the fact that Mr. Marakah shared control of the conversation with another person diminished his expectation of privacy somewhat. Nevertheless, the impact on his Charter-protected interests was found to be considerable. The same reasoning applies to C.M., and I find that this factor too favours exclusion of the evidence.
c) Society’s interest
[54] This factor will normally pull towards the inclusion of evidence. In this case, however, the police did not recover the text messages that form the basis of the luring charge. J.M. can still testify about what C.M. said to her in that conversation, and my decision on this application will have no impact on the direct evidence the Crown is able to marshal in support of the charge.
[55] This application concerns the Facebook messages which were downloaded by police, which may constitute circumstantial evidence from which I am asked to draw an inference of guilt. Both the complainant and PC Dyer may be able to testify about their observations of the content of these messages. In all of the circumstances, the exclusion of the evidence will not gut the prosecution case, and the Crown will still be able to proceed with the trial against C.M. While this factor nevertheless favours admission of the evidence, it pulls towards admission to a mild degree only.
d) Conclusion on 24(2)
[56] Balancing the Grant factors, I conclude that admission of the evidence would bring the administration of justice into disrepute. The s.8 application is therefore granted, and the evidence is excluded under s.24(2). I turn now to the admissibility of C.M.’s statement.
iv) Was C.M.’s statement voluntary?
[57] In order for a statement given by an accused person to a person in authority to be admitted in evidence against them, the Crown must prove beyond a reasonable doubt that the statement was made voluntarily. This is a heavy onus. To establish voluntariness, the Crown is generally required to prove that the statement was not made as a result of any threat or inducement, and that it was the product of an operating mind. In C.M.’s case, there is no suggestion that PC Dyer made any threat to him, or offered him any inducement to make the statement. The operating mind requirement includes proof that C.M. made the statement knowing that he had the right not to speak to the police, and that he understood that if he chose to speak anything he did say could be used against him at his trial.
[58] As the Ontario Court of Appeal has held, “the exercise of a right to choose presupposes a voluntary informed decision to pick one course of conduct over another. Knowledge of the various options and an appreciation of the potential consequences of the choice made are essential to the making of a valid and effective choice”: R. v. Wills, [1992] O.J. No. 294. Typically, this requirement is fulfilled through the use of a caution, where the police inform the person that they do not have to make a statement but that if they do so, it may be used against them at their trial.
[59] Although the police need not caution every person they speak to, the failure to caution a person who is being charged or who is a suspect is a factor which will weigh strongly against a finding of voluntariness. As Schreck J explained in R. v. Ahmed, 2020 ONSC 5990 at para. 21: “a finding of voluntariness will usually require that the person giving the statement be aware of (1) the nature of the offence or offences being investigated; (2) whether he is a suspect, that is, a person against whom charges may be laid; and (3) that his statement may be used against him in court if charges are laid. That awareness may arise from what the accused is told by the police or from the circumstances in which the statement is made.”
[60] There is no particular language that the police are required to use so long as the required information is given to the person making the statement. At the time that PC Dyer returned C.M.’s call, she had information in her possession suggesting that he had tried to induce the complainant, a young person to whom he was in a position of trust, by way of electronic communication, to engage in sexual acts. In my view, he was clearly a suspect in a child luring investigation. In order to ensure that anything he chose to say was truly voluntary, he should have been told at the outset that he was under investigation for the offence of luring, that he was a suspect, that he did not have to speak to police, and that any statement he did make could be used against him in court.
[61] Although she was returning C.M.’s call, PC Dyer chose the time and place to do so. She parked her cruiser and placed her phone in hands-free mode in order to make notes during the call. The only reasonable conclusion I can reach is that she did so because she anticipated he might say something of relevance. She offered no sensible explanation for failing to take the simple step of making an audio recording of the entire conversation. PC Dyer said she cautioned C.M. at the outset of the phone call, but she made no note documenting this important step. I cannot be sure that she cautioned him at all, or if she did, what words she used. I cannot be sure if she asked C.M. if he understood the caution, or how he responded.
[62] The fact that she made a specific note that he was “re-cautioned” halfway through the conversation also raises concerns. She offered no sensible explanation for the need to caution C.M. a second time. Indeed, if he had been properly cautioned at the outset and then voluntarily chose to provide an incriminating statement, it seems a curious strategy for an investigator to employ – to interrupt a confession and remind the suspect that he does not have to say anything and that what he is saying can be used against him. Once again, there is no record that he was asked if he understood this second caution, or what if anything he said in response. Although she denied it, this action by the officer suggests that she had concerns about the adequacy of the initial caution, or C.M.’s understanding of it.
[63] In the particular circumstances of this case, I cannot be sure that C.M. understood that he was a suspect in a child luring investigation, that he understood his right to silence or the caution that any statement he made could be used against him. This leaves me with a reasonable doubt that C.M. had an operating mind at the time he was interviewed by PC Dyer. The Crown has failed to satisfy me that his statement was voluntary.
[64] Although this is sufficient to dispose of the voluntariness issue, I also have other concerns with respect to the statement arising from the failure of the officer to make a proper record. It is clear that much more was said by C.M. than what the officer recorded in her notebook. This was a 17 minute conversation and according to PC Dyer, he was speaking rapidly and non-stop throughout. As the Ontario Court of Appeal held in R. v. Moore-McFarlane, [2001] O.J. No. 4646, “the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police.” [para. 65]
[65] In this case, I do not have a sufficient record. Were I to admit the statement into evidence, I would be admitting PC Dyer’s recollection of some of the things that C.M. said during a lengthy conversation. I am skeptical of her claim that she was not an active participant in the conversation. I do not have the full context for the things that C.M. said that were documented in her notes. I do not know what questions were asked to prompt these responses. Even if the statement were admitted, it would be difficult to place much weight on it given the lack of a proper record. Admitting such an incomplete statement into evidence would also, in my view, raise real trial fairness concerns. It would be unfair, for example, for C.M. to be cross-examined on such an inadequate record if he chose to testify.
[66] For all of the foregoing reasons, the Crown has failed to satisfy me beyond reasonable doubt that C.M.’s statement to PC Dyer was voluntary. The statement is inadmissible at his trial.
Released: August 16, 2022 Signed: “Justice S.W. Konyer”
