ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
COURT FILE NO.: 11-10000133
DATE: 20120119
B E T W E E N:
HER MAJESTY THE QUEEN
M. Humphrey and K. Simone , for the respondent
Respondent
- and -
LAMAR SKEETE
R. Richardson & F. Javed, for the applicant
Applicant
HEARD: January 19, 2012
Nordheimer J. (orally):
[ 1 ] Mr. Skeete seeks to exclude evidence obtained from cell phones seized by the police pursuant to a search warrant on the basis that his rights under s. 8 of the Charter were infringed. Specifically, it is asserted that there was a defect on the face of the Information to Obtain the search warrant, namely, that reasonable and probable grounds for belief that cell phones in general would provide evidence of the offence and that, in particular, cell phones would be found in the premises to be searched, were not set out within the ITO.
[ 2 ] In the ITO, the affiant refers to the fact that he has reviewed some security video from the scene of the murder that shows a male suspect who, according to the affiant, was seen talking on a cell phone. While the defence takes issue with that characterization, I have heard from the affiant and I have seen the security video. While reasonable persons could differ on whether the video does show the male talking on a cell phone because the video does not clearly show the presence of a cell phone, I am satisfied that the affiant had a reasonable belief in that regard. The male has his left hand up near his head for the period he is seen on the security video before running off and he has what appears to be an object in his left hand. At the same time, there is no evidence that categorically establishes that the male was not talking on a cell phone.
[ 3 ] I would add to that conclusion the reality that in this day and age cell phone use is “ubiquitous” to borrow the word used by Watt J. in R. v. Mahmood, 2011 ONCA 693. The police knew that Mr. Skeete used a cell phone as they had observed him doing so. It is well known that cell phones can provide a great deal of information that can be useful to an investigation. Not only can a cell phone possibly place a person at a particular location at a particular point in time, it can also provide information regarding the contacts that a person has with other persons. Police officers know from their experience that this is the case and it is open to the police to rely on their experience in advancing grounds for their belief that certain items may provide evidence – see R. v. Ngo, 2011 ONSC 6676 at para. 33.
[ 4 ] In my view, those facts and the logical inferences that flow from them would generally provide sufficient grounds for a search warrant to include cell phones as one of the items for which the police are authorized to search assuming, of course, that the nature of the information that cell phones can provide would be relevant to the offence being investigated. In particular, I do not see it as a prerequisite to the inclusion of cell phones in a search warrant that there be some direct evidence that cell phones were somehow involved in the offence. As long as there are reasonable grounds to believe that the suspect used a cell phone, that ought to be sufficient to include cell phones in the items for which the police are authorized to search. The inclusion of cell phones in this search warrant was therefore justified.
[ 5 ] The defence also challenges the warrant on the basis that within the ITO there is no particularization for the belief that cell phones would be found within the residence to be searched. I agree that that can be seen to be a failing in the ITO but I disagree that it is fatal to the search warrant. As noted in R. v. Nguyen, 2011 ONCA 465 at para. 57 the review of a search warrant is not “an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions”.
[ 6 ] It is clear from the ITO as a whole that Mr. Skeete was a suspect and that Mr. Skeete used a cell phone. It was consequently a reasonable inference that a cell phone might be found in his residence. As was said in Ngo at para. 35 (6):
An authorizing judge is entitled to draw reasonable inferences from stated facts and an informant is not obliged to underline the obvious.
[ 7 ] The authorizing judge in this case knew that Mr. Skeete used a cell phone. She would have been entitled to draw the reasonable inference that a cell phone might be found in Mr. Skeete’s residence. The authorizing judge did not have to have a picture drawn for her to reach that conclusion. Read as a whole, the ITO established reasonable and probable grounds to search the residence for cell phones.
[ 8 ] As a result, I conclude that there was no breach of s. 8 through the granting of this search warrant. The application is dismissed.
NORDHEIMER J.
Released: January 19, 2012
COURT FILE NO.: 11-10000133
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
LAMAR SKEETE
Respondent
REASONS FOR DECISION
NORDHEIMER J .
RELEASED: