DATE: 20120319

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R. v. Byron Sonne

BEFORE: Justice Spies

COUNSEL: Elizabeth Nadeau and Stephen Byrne , for the Crown

Joseph Di Luca , Peter Di Luca and Kevin Tilley , for Byron Sonne

HEARD: November 30, 2011

RULING ON DEFENCE SECTION 8 APPLICATION TO EXCLUDE EVIDENCE OBTAINED FROM PRODUCTION ORDERS

Introduction and Issues

[ 1 ] On July 20, 2010, the police obtained two production orders; one directed to Rogers Communications for the applicant’s telephone records associated with his mobile phone and the other directed to TD Canada Trust for records of transactions on his Visa credit card. Both applications for production orders were supported by an affidavit to obtain a production order for documents and data (the Information to Obtain or “ITO”) sworn by Constable Darryl Waruk of the RCMP. Constable Waruk’s ITO relied on the same grounds set out in D.C. French’s ITOs sworn in support of the warrants issued to search Mr. Sonne’s home and two cottages (in fact, these ITOs were included as an appendix) as well as items seized during the search of Mr. Sonne’s home and the cottages. Constable Waruk also relied on information from the applicant’s interviews with Detective Bui.

[ 2 ] The Crown does not intend to rely upon cell phone records obtained as a result of the production order that was directed to Rogers Communications, but does seek to tender certain Visa records obtained as a result of the production order directed to TD Canada Trust. The issue of the seizure of the cell phone records is, however, still relevant to my Global section 24(2) Charter ruling [^1] and so I will consider whether or not that production order ought to have been made.

[ 3 ] This ruling with respect to the Visa records, depends to some extent on my Garofoli ruling [^2] and my ruling on the admissibility of statements made by Mr. Sonne to Detective Bui. [^3] It was agreed that I could consider the evidence that I heard on the original Garofoli application. Counsel also agreed that the law that I applied in determining that application applied to my ruling on this application. Accordingly, I will not set out that law again in this ruling.

[ 4 ] The production orders included the mischief and conspiracy charges from the ITOs prepared by D.C. French but there is no dispute that no additional evidence was set out in support of these named offences. In my Garofoli ruling I found that those charges were not supported by the ITO. In addition, there was a named offence related to possession of a weapon for a dangerous purpose which relied upon the seizure of a potato cannon found at one of the cottages. The Crown conceded that the production order ought not to have issued to search for evidence in connection with this charge as the potato cannon was seized based on unlawfully obtained information that Mr. Sonne provided about the existence and location of the cottages. A new named offence, attempt mischief, was added to the production order, but neither counsel suggested this new named offence had any relevance to my ruling on this application. Accordingly, argument proceeded on the central issue of whether or not Constable Waruk’s ITO supported the requested production order based on the named offence of possession of an explosive substance.

[ 5 ] On December 12, 2011, I advised counsel and Mr. Sonne that after making certain excisions and amplifications to the ITO, I had concluded that an issuing justice could not have issued the production order for the Visa records and as such the production of Mr. Sonne’s Visa records was a breach of his section 8 Charter rights. However, as a result of my section 24(2) analysis, I concluded that this evidence should not be excluded.

[ 6 ] I concluded that a decision as to whether or not the production order for Mr. Sonne’s cell phone records ought to be issued was not necessary as the Crown does not seek to rely on those records and even a finding in favour of the applicant on that issue would not have make a difference to the conclusion that I reached on the Global s. 24(2) application.

[ 7 ] These are the reasons for my decision.

Analysis

[ 8 ] No new evidence was called on this application. In light of my earlier rulings, I considered whether or not the ITO of Constable Waruk supported the production orders in connection with the offence of possession of an explosive substance. I concluded that the other “bad parts” of the orders could be severed on the same basis that I did in connection with the two search warrants to search Mr. Sonne’s residence. [^4]

[ 9 ] Turning to the supporting ITO of Constable Waruk, there is no dispute based on my findings in the Garofoli decision that the following portions of the ITO ought to be excised:

• The references to Byron Sonne and his identification by way of an Ontario driver’s licence in paragraphs 10 and 14. This would leave an unnamed person making a reference to the “Terrorist Act of Canada.”

• The surveillance references in the middle of paragraph 12 (that revealed that Mr. Sonne used the Visa card in question at a Home Depot), 18, 19 and 41.

• The references in paragraphs 26, 27, 29, 30, 31, and 33 (b) (x) to the search of the cottages and the photos or other references to items seized from the cottages. I have concluded that it is not necessary to determine if the reference in paragraph 33 (b) (iv) should be excised; this would have no impact on my decision.

[ 10 ] In paragraphs 11, 15, 16 and 17, the ITO states that certain investigation of Mr. Sonne was done as a result of his initial detention by police on June 15, 2010 and his comments and suspicious behavior displayed at that time. This includes a statement in paragraph 15 that the criminal investigation into Mr. Sonne was based on his comments to police and that based on the incident on June 15, the Toronto Police Service subsequently tasked the Joint Intelligence Group to conduct open source queries associated to Byron Sonne. An extensive reference to Louise Knight’s report is set out.

[ 11 ] Mr. Di Luca submitted that all of paragraphs 11, 16 and 17 of the affidavit ought to be excised as, on its face, the information results from the original unlawful detention. He conceded, however, that when the Garofoli application was argued, there was no dispute that the incident on June 15 th was independent of the open source checks done by Louise Knight and Julie Ban. The issue then arose as to whether or not these references can now be corrected and amplified to reflect that fact that Mr. Sonne had drawn the attention of police independently from his detention on June 15 th .

[ 12 ] Mr. Di Luca argued that there could be no amplification because Constable Waruk was not called as a witness by the Crown. He submitted that as he is the one who drafted the ITO, his understanding is important in determining whether this was a minor or technical mistake made in good faith.

[ 13 ] Mr. Byrne submitted that I can amplify the ITO to make this correction without hearing from Constable Waruk. As he pointed out, Constable Waruk would have had no reason to deliberately mislead the issuing justice on this point. If anything, it would have been more compelling to set out the true facts, namely that Mr. Sonne drew the attention of police both on June 15 th and independently, as a result of his Internet activity. I agree. Constable Waruk was relying on the ITOs prepared by D.C. French and the only reasonable inference is that this statement must simply have been an error. In my view, in the very unusual circumstances of this application, I can amplify to correct an obvious error based on evidence I have already heard on the original Garofoli application, to consider the true facts. That evidence was clear that the Knight and Ban reports resulted from concerns about Mr. Sonne’s posting on the Internet and that investigation was independent of the investigation which included surveillance that followed Mr. Sonne’s detention on June 15 th . This amplification provides the necessary link to Mr. Sonne in the ITO.

[ 14 ] Mr. Di Luca submitted that paragraph 20 must also be excised on the basis that it is related to the surveillance of Mr. Sonne, but on my reading of it, this was an investigative step Detective Bui took, using the information he obtained from Mr. Sonne about his Visa card when he obtained his second statement on June 26, 2010. This paragraph stands or falls with paragraph 21.

[ 15 ] In paragraph 21 of the ITO, Constable Waruk refers to the second statement taken by Detective Bui of Mr. Sonne on June 26, 2010 [^5] and the fact that during that interview Mr. Sonne advised Detective Bui that he used his Visa credit card to make purchases at Home Depot and that he rarely used cash to make purchases. Mr. Di Luca submitted that this paragraph must be excised on the basis of the Defence position that this statement was involuntary. When he made his submissions he did not know how I would rule on that issue, but as set out in R. v. Sonne [^6] I was not satisfied that this portion of the statement was voluntary and, therefore, held that it was not admissible as part of the Crown’s case.

[ 16 ] I did not find a breach of section 10(b) of the Charter with respect to the taking of the statement. Mr. Di Luca argued, however, that a finding that the statement was involuntary engaged on some level a section 7 Charter violation. In the alternative, he argued that an involuntary statement was unlawfully obtained and ought to be excluded on the same basis as any other illegally obtained evidence. In this regard he submitted that the only case he was aware of on point was a decision from the Alberta Court of Appeal where such an excision was made by the trial judge but he did not provide a copy of that decision to the court as there was no analysis of the issue.

[ 17 ] Mr. Byrne conceded that if I found that Mr. Sonne’s statement to Detective Bui was inadmissible because it was involuntary, that the information from the statement would need to be excised from the ITO. He acknowledged that the essence of the Defence position on the application to exclude Mr. Sonne’s statements was that Mr. Sonne had been deprived of an informed choice to remain silent and that involuntariness findings on such a basis would amount to a section 7 Charter breach under R. v. Singh . [^7] Given the reasons for my finding that a portion of the statement was inadmissible, and given that portion contains reference to the use by Mr. Sonne of his TD Visa card, I agree. As a result, this reference in paragraph 20 and paragraph 21 must be excised.

[ 18 ] In paragraph 25 of the ITO, Constable Waruk referred to the evidence of D.C. French and his discussions with Sergeant Roger Gibson as to the chemicals found in Mr. Sonne’s home. The same error made by D.C. French, namely a statement that HMTD was located, is made in Constable Waruk’s ITO. That statement will be excised. Similarly, the repeat of the error made by D.C. French that Sergeant Gibson located a homemade detonator must be excised. As Mr. Di Luca conceded however, I do not need to consider whether or not to amplify the ITO to correct for these errors as, after excising this information, the value of this paragraph in advancing grounds for the production order remains the same as it is evidence of possession of chemicals.

[ 19 ] In paragraph 39, reference is made to Mr. Sonne having a Toronto Dominion Visa card in his possession when he was arrested and searched by police. I see no issue with this. It is also stated that Constable Waruk read a report prepared by Detective Bui that set out the Visa number of this card. In paragraph 40, the ITO states that a Toronto Dominion Bank Visa statement with this number was found during the search of 58 Elderwood Drive but that Detective Bui could not confirm the date of this statement or describe any purchases contained on that statement. There is no issue with any of these statements as this information does not depend on surveillance.

[ 20 ] After making these excisions and amplifications, the ITO that remains confirms only that Mr. Sonne had a TD Visa card when he was arrested and the number on that card. There is absolutely no basis without the surveillance evidence or his statement to Detective Bui to conclude that this credit card was used to purchase any of the chemicals found in his home when the search warrants were executed. I find that an issuing justice could not have issued the production order for Mr. Sonne’s Visa records based on the ITO as excised and amplified. Accordingly, there was a breach of Mr. Sonne’s section 8 Charter rights.

[ 21 ] Turning to the production order for the cell phone records, Constable Waruk gave three reasons for production of the cell phone records:

(a) that Mr. Sonne was in possession of a cell phone when he was arrested and the telephone number of that cell phone;

(b) that in speaking to a manager at the Rogers Communication Law Enforcement Support Office, he was advised records of Mr. Sonne’s cell phone number would be made available upon receipt of a production order; and

(c) “I believe that viewing the usage logs of the cellular phone will provide evidence proving who was posting comments to the Internet and when. They will also show lists of other possible co-conspirators which need to be identified for further investigation. I also believe that the cellular phone records will be able to pinpoint the locations of the cell phone which will assist in determining possible target locations for the explosive device that was being manufactured.”

[ 22 ] As Mr. Di Luca pointed out, there are a number of difficulties. There is no evidence in the ITO to suggest that Mr. Sonne was using a phone to post items to the Internet or that the phone they seized on his arrest was capable of doing so or had been used in that way. He submitted that I ought not to take judicial notice of the fact that all cell phones are capable of being used to post items on the Internet. I agree as the ability to do so depends on the plan purchased. As for the fact the phone would show lists of other possible co-conspirators that needed to be identified, Mr. Di Luca relied on my Garofoli ruling and conclusion that the ITO did not support a conspiracy charge. Finally, he submitted that Constable Waruk did not explain why he believed cell phone records would be able to pinpoint locations of the cell phone to assist in determining possible target locations for which the explosive device was being manufactured.

[ 23 ] Mr. Di Luca’s submissions on this issue took only a few minutes and Mr. Byrne did not respond; no doubt due to the time pressures counsel were under to meet deadlines imposed to complete all of these applications.

[ 24 ] I concluded, when considering the Global section 24 argument, that even if I found this production order ought not to have issue, that it would be no more than a very small factor in the Global section 24(2) analysis. Given the conclusions that I reached when I considered the submissions made on the Global 24(2) application, I concluded it was not necessary to make a finding with respect to this production order was invalid. I was also concern that my decision might have consequences for other cases and the matter was not sufficiently argued for me to reach a proper conclusion. For the purpose of the Global section 24(2) application, I presumed the order was invalid.

[ 25 ] None of the excisions impact on this production order. If it ought not to have been issued, it would really be the result of my determining that the issuing justice erred in issuing it in the first place. There is no evidence of any bad faith on the part of Constable Waruk in making the request for the production order and it was granted.

Section 24(2) Analysis

(a) The Seriousness of the Charter Breach

[ 26 ] Having found that Mr. Sonne’s section 8 Charter rights were breached a section 24(2) analysis is necessary. In R. v. Grant [^8] the Supreme Court of Canada instructed judges, when faced with an application for exclusion of evidence under section 24(2) of the Charter , to assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:

(a) The seriousness of the Charter- infringing state conduct,

(b) The impact of the breach on the Charter- protected interests of the accused (admission may send the message that individual rights count for little), and

(c) Society’s interest in the adjudication of the case on its merits.

[ 27 ] No overarching rule governs how these three groups of factors are to be considered. The court must consider all of the circumstances of the case and determine whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute: at para. 85.

[ 28 ] This first factor requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law: at para. 72. This analysis involves a consideration of whether or not the Charter breach was, on the one hand inadvertent or minor or, on the other hand, showed “willful or reckless disregard for Charter rights”: at para. 74. The court must also consider whether there were “extenuating circumstances such as the need to prevent the disappearance of evidence” and whether the police acted in good faith: at para. 75.

[ 29 ] Mr. Di Luca conceded that Constable Waruk personally did nothing wrong; none of his actions have resulted in my finding that the production order ought not to have issued. It is clear that he obtained all of his information from D.C. French and Detective Bui. The reason I have found the production order for the Visa records could not have issued is essentially because I have excised the surveillance evidence and the reference to Mr. Sonne using his TD Visa to purchase the chemicals, which came from the portion of his second statement to Detective Bui that I found to be inadmissible because I was not satisfied that it was voluntary. There is no new and freestanding violation of the Charter .

[ 30 ] The Crown has suffered consequences from the earlier Charter breach at the time of Mr. Sonne’s detention on June 15 th , namely the inability to the identification of Mr. Sonne at the time of that detention and the surveillance evidence that followed, by the excision of that information in each of the ITOs where it was referred to. As for Mr. Sonne’s statement to Detective Bui, not only will the Crown not be able to rely upon this portion of the second statement as part of its case, the excision of that information from Constable Waruk’s ITO was fatal to the validity of the production order. That said, some consideration must be given to the fact that information obtained in breach of the Charter was relied upon to obtain a production order that resulted in a further section 8 breach. The impact of that however, as a new invasion of Mr. Sonne’s privacy, is best considered under the second factor. Furthermore it is relevant to consider the fact that the records were obtained with a production order; this was not a warrantless seizure.

[ 31 ] Subject to considering the cumulative effect of these breaches when I consider the Global section 24(2) argument made by Mr. Di Luca, I do not find this breach of section 8 resulting from the production of the Visa records to be particularly serious given it resulted from Constable Waruk’s good faith reliance on this evidence from the ITOs prepared by D.C. French and the statement obtained from Mr. Sonne by Detective Bui.

[ 32 ] For these reasons, this factor favours admission of the evidence.

(b) Impact on the Applicant’s Charter -Protected Interests

[ 33 ] When considering the impact of the breaches on the accused person’s Charter protected interests, according to Grant , it is necessary to evaluate the extent to which the breach actually undermined the interests protected by the right infringed. A court should consider whether the impact of the breach was “fleeting and technical” or “profoundly intrusive” and consider the effect of the breach on the accused’s human dignity: paras. 76, 78. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute: at para. 76.

[ 34 ] Neither counsel submitted any cases that have considered the privacy interests in records of this nature. Mr. Di Luca fairly conceded that the infringement of Mr. Sonne’s section 8 rights was not at the extreme end of the spectrum but submitted that it was not an insignificant breach. He argued that the privacy interest in Visa records would be higher than, for example, a hydro bill, as the details in someone’s Visa records would provide a lot of information about their purchasing habits, movement, and interests. The fact that a production order is required recognizes the privacy interest in these records. However, as Mr. Byrne submitted this is not information that strikes at Mr. Sonne’s human dignity or the core of who he is as a person. I have no evidence from Mr. Sonne as to whether or not he normally protected his privacy interest in these records; for example by shredding them if they were put in the garbage. Although Visa records might provide some information about movement and purchasing habits, I would not say that they reveal core biographical details or information about private decisions. The records are maintained by a third party; a bank providing credit service to those who chose to obtain one of their credit cards. The records are maintained for billing purposes as part of that commercial relationship. There was no impact on Mr. Sonne’s dignity or his liberty. On balance, although I do not find that the breach had a severe impact on Mr. Sonne’s informational privacy interests, it was more than minimal. This factor favours exclusion of the records.

(c) Society’s Interest in the Adjudication of the Merits

[ 35 ] Mr. Sonne is charged with three counts of possession of explosive substances. These are serious charges. In considering this factor, I may consider the importance of the evidence to the prosecution’s case. However, as the court stated in Grant , this has the potential to “cut both ways” in that the reasons for both exclusion and admission of the evidence are heightened when the stakes are high: Grant at para. 84 .

[ 36 ] Mr. Byrne conceded that the Visa records are not critical to the Crown’s case, in the sense that the case will necessarily fail without them, but submitted the loss of this evidence would be significant in that these records will assist the Crown in establishing that it was Mr. Sonne who purchased the chemicals and when he did so. This is important as these substances were found in Mr. Sonne’s home, where he resided with his wife. As this is a circumstantial case it is difficult to assess the impact of exclusion of this evidence. This evidence is real and it is reliable. This is not an instance in which the Charter breach undermines the reliability of the evidence. The exclusion of these records would tend to undermine the truth-seeking function of the trial. The admission of the evidence would not affect the fairness of the trial.

[ 37 ] For these reasons, I find that the truth seeking function of this criminal trial would be better served by admission of the evidence.

(d) The Balancing

[ 38 ] At this stage of the analysis I must weigh the various factors. I do so understanding that there is no overarching rule governing how the balance should be struck: Grant at para. 86 .

[ 39 ] Two of the three Grant criteria work in favour of not excluding the Visa records. I have found that there was no new freestanding Charter breach and that Constable Waruk acted in good faith throughout. There was a new breach of section 8 as a result of the production of these records that had some impact on Mr. Sonne’s section 8 interests, and in particular his right to informational privacy, but I have found that was not severe and this evidence is important to the Crown’s case.

[ 40 ] Balancing all of the factors, I would not, in these circumstances, exercise my discretion to exclude Mr. Sonne’s Visa records, notwithstanding my findings that there was a breach of his section 8 Charter rights.

Final Disposition

[ 41 ] For these reasons the application to exclude the Visa records obtained as a result of the production order directed to TD Canada Trust is dismissed subject to my ruling on the Global section 24(2) Charter argument.

SPIES J.

Date: March 19, 2012

[^1]: R. v. Sonne , 2012 ONSC 1755 [^2]: R. v. Sonne , 2011 ONSC 6734 [^3]: R. v. Sonne , 2012 ONSC 1741 [^4]: R. v. Sonne , 2012 ONSC 584 [^5]: He mistakenly refers to it as being taken on June 27th [^6]: R. v. Sonne , 2012 ONSC 1755 [^7]: 2007 SCC 48 , [2007] S.C.J. No. 48 [^8]: 2009 SCC 32 , [2009] 2 S.C.R. 353