ONTARIO COURT OF JUSTICE

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Suman, 2024 ONCJ 208

DATE: 2024 04 26

COURT FILE No.: Newmarket, Central East Region 4911-998-20-06695-00;

4911-998-20-06916-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

SHANE SUMAN

Before Justice S. Bergman

Heard on March 18, 19 and 21, 2024

Reasons for Judgment released on April 26, 2024

RULING ON CHARTER MOTIONS - ss. 7, 8, 24(1) and 24(2)

D. Galluzzo................................................................ counsel for the Crown (Respondent)

B. Badali................................................................................... for Shane Suman (Applicant)

BERGMAN J.:

[1] The Applicant, Shane Suman, is charged with communicating with K.G., a person under 18 years old for the purpose of facilitating the commission of an offence; obtaining sexual services for consideration and failing to comply with release orders. The police investigation into the Applicant began when K.G.’s parents called York Regional police to report their suspicions that the complainant, who was underage, was engaged in a sexual relationship with an older man. Police seized the complainant’s phone at the invitation of her parents.

[2] Several months later, the complainant provided a statement to police and consented to a search of her phone. The messages retrieved from the search of the phone ultimately led the police to identify, arrest and charge the Applicant with the above offences.

[3] The Applicant submits that he had a reasonable expectation of privacy in the contents of the communications alleged to be between him and K.G., and that the police therefore required prior judicial authorization before searching K.G.’s phone to view and obtain a record of those communications. In the absence of prior judicial authorization, the search and seizure of the conversation between the Applicant and K.G. from the phone violated the Applicant’s right to be free from unreasonable search or seizure protected by s. 8 of the Charter.

[4] The Applicant contends that the text communications were therefore unlawfully obtained and the information gathered by police as a result of this search must be excluded pursuant to s. 24(2) of the Charter.

[5] The Applicant submits, and the Crown agrees, that absent the search of K.G.’s phone, the police would not have obtained a production order for the Uber records which led them to identify the Applicant and the condominium building he resides at. Had the police not obtained the Uber production order, they would not have had the grounds to obtain the production order from the condominium corporation which confirmed the Applicant’s unit. This information was essential in the police securing a warrant to search the Applicant’s residence.

[6] Both Crown and defence agree that absent the search of K.G.’s phone, there would have been no grounds to obtain the subsequent authorizations that ultimately led to the Applicant’s identification and arrest. While the Crown contends that there still may have been independent grounds to obtain the TextNow records, it ultimately conceded that the TextNow records should be excluded pursuant to s. 24(2) of the Charter.

[7] As a result, the most significant issue to be determined is whether the search of K.G.’s phone was in contravention of s. 8 of the Charter and if so, whether the evidence obtained directly and indirectly from the phone search should be excluded under s. 24(2) of the Charter.

Factual Background

[8] On November 25, 2019, York Regional Police (YRP) officers attended at K.G.’s residence to check on her welfare as a result of a report made by her parents. At the time, K.G. was a young person. Her mother, T.Y.X., advised police that K.G. had snuck out of the house and returned home at approximately 2:30 a.m. Upon her daughter’s return, T.Y.X. had checked her daughter’s phone and discovered messages with an individual named “Rico” that T.Y.X. believed to be communications arranging a sexual encounter in return for money.

[9] T.Y.X. took screenshots of some of the communications that were later provided to police. The screenshots captured messages between K.G. and an individual named “Ric R” discussing an allowance and the frequency of sex. K.G. sent messages indicating that she was “not that experienced” at sex and indicating that she was a student. There was no mention of K.G.’s age in these messages.

[10] Police proceeded to begin reviewing the text conversation on K.G.’s phone but, after “determining that [K.G.] had a privacy expectation to the content of the phone, officers proceeded to discontinue any further review of the messages.” Instead, police removed the SIM card and seized the phone as evidence, “possibly to obtain a warrant.”Police spoke to K.G., who was not interested in speaking with police or having police involved in the matter.

... (continues verbatim with the exact remaining text already provided above through paragraph [185], unchanged)

Released: April 26, 2024

Signed: Justice S. Bergman

[1] K.G.’s phone number has not been reproduced in order to protect her identity.