COURT FILE NO.: YC-11-10000002
DATE: 20120518
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
[Note: This proceeding is governed by publication restrictions under section 110 of the Youth Criminal Justice Act.]
B E T W E E N:
HER MAJESTY THE QUEEN
M. Humphrey and K. Simone, for the respondent
Respondent
- and -
S.M.
(a young person pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1)
M. Webster & S. Stauffer, for the applicant
Applicant
HEARD: May 3, 2012
Nordheimer J.:
[1] In this first degree murder trial, S.M. seeks to exclude from the evidence items that were seized from his residence when a search of that residence was conducted by the police on January 14, 2010. S.M. also seeks to exclude from the evidence information obtained either directly or indirectly from cellular telephones including contact lists, text messages and records of telephone calls made by or to him. On the morning of May 7 (the next day of the trial), I advised counsel that the application to exclude the evidence failed and was dismissed. I said I would provide my reasons for that conclusion in due course. I now provide those reasons.
[2] On December 29, 2009, Kenneth Mark was shot and killed while walking home from a neighbourhood pizza store located at the corner of Dundas Street West and Gilmour Street. A lone male ran up behind Mr. Mark as he walked north on Gilmour and fired a single shot into the back of Mr. Mark’s head. Earlier this year, Lamar Skeete was convicted by a jury of first degree murder in this matter. It was alleged by the prosecution that Mr. Skeete shot and killed Kenneth Mark, or arranged for someone to do so, and that this killing occurred as retaliation for Mr. Mark having given evidence against Mr. Skeete and his younger brother, J.B., on an earlier charge of attempted murder. In this trial, it is alleged that S.M. was a party to the murder of Kenneth Mark. Specifically, it is alleged that S.M. acted as a lookout for the shooter and as the “getaway” driver. It may be suggested that S.M. participated in this murder in other ways as well.
[3] The homicide squad began their investigation immediately after the murder. The investigators were advised of prior events between Mr. Mark, Mr. Skeete and J.B and the latter two quickly became the prime suspects in this murder given that history with Mr. Mark. This history included not only the attempted murder charge but an altercation that had taken place between Mr. Mark and J.B. that was followed shortly after by Mr. Mark being shot by someone armed with a shotgun. Mr. Mark identified J.B. as the shooter and Mr. Skeete as being present with his younger brother when the shooting occurred. Both Mr. Skeete and J.B. were arrested and charged with the attempted murder of Mr. Mark. Ultimately, the charge against Mr. Skeete was withdrawn on December 14, 2009 and J.B. was acquitted of the charge on December 17, 2009. Twelve days later, on December 29, 2009, Mr. Mark was murdered.
[4] While the investigators were learning of this information, they also located security surveillance videos from two businesses near the pizza store – one from a bake shop and one from a coin laundry. The police also had an eyewitness to the murder. While the eyewitness could not identify the shooter, he did provide the investigators with details regarding the events that occurred leading up to, and including, the shooting. In particular, the eyewitness told the investigators that he had seen two young black males acting suspiciously immediately prior to the shooting. They each, at different times, walked back and forth on Dundas Street West along the sidewalk outside of the pizza store.
[5] Of the two security surveillance videos that were seized by the police, the one from the bake shop showed a young black male walking eastbound from the direction of the pizza store and then return westbound. The video shows the same male return moments later, walk eastbound, look around the corner of a building and then suddenly run back westbound. This video coincides with some of the eyewitness’ evidence regarding the actions of the second male. The security surveillance video from the coin laundry showed a different male enter the laneway beside the coin laundry. The male walks back and forth in the alleyway in a manner that might suggest that he was trying to keep an eye out for what was happening on the opposite side of Dundas Street in the area of the pizza store. The male then runs out of the alleyway in a northwest direction, that is, in the direction of the pizza store and the area of Gilmour Street where the shooting occurred. This video also coincides with some of the eyewitness’ evidence regarding the first male.
[6] Based on this and other information, the police obtained a search warrant for the residence of Lamar Skeete and J.B. (the “Skeete search warrant”). During the execution of the Skeete search warrant, various items were seized including cellular telephones. The police identified one of the cellular telephones as belonging to Lamar Skeete. Within the contact list for that cell phone was an entry for “b-triz” with the last name of the accused and a telephone number. The police obtained a production order for the telephone number associated to Mr. Skeete’s cell phone. The records for that phone number showed, among other things, that the cell phone was in the area where the murder occurred a short time before the shooting took place.
[7] The investigators received anonymous information that identified another young male, D.L-K., as possibly being involved in this murder. The police learned that D.L-K. lived in Ottawa but had been in Toronto between December 24, 2009 and January 3, 2010. Further, the records from Mr. Skeete’s cell phone showed that there was contact on the day of the murder between Mr. Skeete’s cell phone and a number belonging to the aunt of D.L-K. D.L-K. had stayed with his aunt when he was in Toronto.
[8] Based on this and other information, the police obtained a search warrant for the residence of D.L-K.’s aunt (the “D.L-K. search warrant”). During the execution of the D.L-K. search warrant, the police again seized various cell phones. One of those cell phones belonged to K.R., who is D.L-K’s cousin (K.R. is the son of D.L-K’s aunt). No cell phone belonging to D.L-K. was found. Within the contact list in K.R.’s cell phone was an entry for “B-Triz” with the same telephone number as was found in Mr. Skeete’s contact list. The investigators conducted a search of police files and learned that “B-Triz” was a nickname associated to S.M.
[9] Meanwhile, the examination of Mr. Skeete’s cell phone and phone records continued. The police found a series of text messages on the day of the murder that went between Mr. Skeete’s cell phone and the cell phone that carried the phone number associated to “b-triz”. The contents of those text messages showed that whoever was using Mr. Skeete’s cell phone and whoever was using the “b-triz” cell phone were intending to meet up just a couple of hours before the shooting occurred.
[10] The police contacted Telus, which was the cell phone carrier for the cell phone number associated with “B-Triz”. They received certain information from Telus including that the “B-Triz” cell phone was also in the area of the murder a short time before the shooting took place. At the same time, the police obtained a photograph of S.M. The police compared the photograph of S.M. with the male seen on the bake shop surveillance video (the one who was seen running) and concluded that there was a good possibility that the person on that surveillance video was S.M.
[11] Based on that and other information, including the information I have set out above, the police obtained a search warrant for the residence of S.M. (the “S.M. search warrant”). The police also obtained a warrant for the arrest of S.M. on a charge of first degree murder. The police executed the search warrant on January 14, 2010. S.M. was not home at the time that the search warrant was executed. A short time later, S.M. was found at his school and was arrested there. When arrested, the police seized a cell phone that S.M. had on his person. That cell phone carried a phone number that matched the phone number listed for “B-Triz” in both Mr. Skeete’s and K.R.’s cell phones.
[12] S.M. challenges each of these search warrants. S.M. also challenges the search of his cell phone that occurred after it was seized from him when he was arrested. It is necessary for S.M. to challenge each of these search warrants since the search warrant executed on S.M.’s residence is based, to a considerable degree, on the items and information obtained from the two earlier search warrants. Consequently, there is a domino effect to the search warrants. If the earlier search warrants fall, then the search warrant for S.M.’s residence would fall.
[13] Five issues are raised by this application: (1) S.M.’s standing to challenge the Skeete search warrant and the D.L-K. search warrant; (2) the challenge to the Skeete search warrant; (3) the challenge to the D.L-K. search warrant; (4) the challenge to the S.M. search warrant and (5) the challenge to the search of S.M.’s cell phone on arrest.
Standing
[14] I turn to the first issue – standing. S.M. contends that he has a privacy interest in the information that the police obtained from the cell phones that they seized and therefore has standing to challenge those searches. The prosecution says that S.M. has no privacy interest in another person’s cell phone and therefore has no standing to challenge any search relating to that cell phone.[^1]
[15] The issue of standing does not allow for an absolute answer one way or the other because different forms of information can be obtained from a cell phone. Long gone are the days when a phone was simply used to make or receive calls with others. Nowadays, cell phones can, and usually do, contain vast amounts of personal information. Cell phones not only make and receive what I might refer to as traditional forms of telephone calls, they also act as recording devices (both audio and video), cameras and depositories of other forms of communications such as emails and, more importantly in this case, text messages. That reality in turn requires an analysis of the type of information that the police obtained through the searches of the cell phones because, depending on the nature of that information, different conclusions arise regarding any privacy interest in the information.
[16] The prosecution is correct that S.M. has no standing to challenge the searches of other persons’ cell phones with respect to certain forms of information. For example, S.M. has an insufficient privacy interest in the contact list in another person’s cell phone such as to have standing to challenge a search and seizure of a cell phone and the discovery of that information. While the information contained in a contact list will involve private information belonging to each contact, in this case S.M.’s nickname and his phone number, any privacy interest the contact has in that information is significantly reduced once that person communicates that information to other persons knowing that those persons may record it and/or share it with others. Similarly, in the normal instance, the non-owner of a cell phone would not have any privacy interest in photos or recordings that might be contained within that cell phone and that were, presumably, created by or on behalf of the owner of the cell phone. I conclude, therefore, that S.M. has no standing to challenge the search and seizure of either Mr. Skeete’s cell phone or K.R.’s cell phone insofar as the prosecution seeks to rely on the contents of the contact lists found therein.
[17] Conversely, I conclude that the non-owner of a cell phone does have an ongoing and important privacy interest in other information that might be obtained from another person’s cell phone. In particular, the non-owner of a cell phone has an ongoing privacy interest in text messages that are either contained in a cell phone or that can be obtained from the records of the carrier for that cell phone. I reach that conclusion for the following reasons.
[18] Text messages are a relatively recent phenomenon but their increasing use as a method of communication between individuals cannot be denied. Text messages are instantaneously transmitted and it is generally expected that text messages will receive an equally timely response. The contents of the text messages in this case demonstrate that reality. Text messages are not like email messages where an immediate response is not an expectation inherent in the mode of communication used – although a quick response may nonetheless be wanted. Text messages occur very much more in “real time”. Indeed, text messages are often a substitute for an actual conversation and thus are much more akin to a traditional telephone conversation than they are to other modes of communication. Emails, on the other hand, are more akin to an electronic version of a letter.
[19] I recognize that there are still differences between a telephone conversation and a text message. Principal among those differences is that there is generally no record of the contents of a telephone call whereas there is a record of the contents of a text message. This distinction is important because it serves to take text messages outside the scope of the provisions of Part VI of the Criminal Code dealing with the interception of private communications. While a text message would fall within the definition of “private communication” contained in s. 183, I agree with the conclusion that others have reached that the prohibition against the interception of private communications involves a contemporaneous interception of the communication, not a later seizure of that same communication – see, for example, R. v. Finlay (1985), 1985 CanLII 117 (ON CA), 23 C.C.C. (3d) 48 (Ont. C.A.) at para. 66. By way of example, if a person happened to record all of their telephone conversations, the police would not need an authorization under Part VI to seize those existing records. Rather, they would obtain a search warrant under s. 487 for the records.
[20] I reach my conclusion regarding the non-application of Part VI notwithstanding that the definition of “intercept” in s. 183 includes “listen to, record or acquire a communication”. The use of the word “acquire” in that definition is somewhat problematic because it might suggest that any seizure of a communication at any point in time would fall within that definition of “intercept”. On that definition, plainly read, such a conclusion would seem to be justified. However, I believe that it is evident from the contents of Part VI read as a whole that the proper interpretation of the definition carries with it an implicit requirement of contemporaneous seizure of the contents of the communication. It is clear that the harm, which the provisions of Part VI were to guard against, was the acquisition by the state of personal communications that would otherwise be unattainable because their existence disappears once the words are spoken. Hence the need for simultaneous interception. The seizure of text messages falls outside the scope of Part VI because a digital record of them continues to exist after the communication is over.[^2] I note that the length of time that the digital record exists may vary depending on the carrier involved and also on whether the owner of the cell phone keeps or erases those messages.
[21] The conclusion that text messages are not covered by Part VI of the Criminal Code does not carry with it, however, the corollary conclusion that the non-owner of the cell phone, who is a party to a text message retrieved either directly or indirectly from the cell phone, does not have any privacy interest to protect in the state’s seizure of that message. The scope of privacy interests does not depend on the nature of the authorization by which the authorities seize private communications.
[22] The leading case on privacy interests is R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30. While that decision dealt with one party consent interceptions of private communications, the breadth of the principles enunciated by the Supreme Court of Canada went beyond that narrow concern. As La Forest J. tellingly observed, at para. 22:
The reason for this protection is the realization that if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance. The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning.
[23] With text messages, the state is not technically making a permanent record of private communications. Both the originator and the recipient of the message each make a record of it through the means utilized to communicate the message. The originator maintains control of his/her copy of the message but never has control of the recipient’s copy. That distinction does not, in my view, change the nature of the privacy interest. The reality is that we now live in a world where a great deal more of our daily actions are recorded than has been the case in the past. The advent of the “digital age” carries with it the creation of digital records of all types. For example, in the past, a person might enter a store and purchase an item with cash and there would be no record of that event for anyone to seize. Nowadays, that same person purchases that same item with a debit card and there is a complete record of what was purchased, when it was purchased, where it was purchased and so on, all of which is susceptible to seizure by the state. By way of another example, the increasing use of electronic security systems with their capacity to record a vast amount of information regarding the actions of a great many people, all at the same time and often without the subject’s knowledge, provides another trove of information that infringes on the privacy of the individual but is again susceptible to seizure by the state.
[24] The fact that a digital record exists of a text message does not substantially change the privacy interest that arises from the nature of the message. It is still a private communication that the sender intends only for the recipient. While I accept that the fact that there is a record of that message beyond the control of the originator slightly lessens the privacy interest, in the sense that the originator must be alert to the possibility that the recipient might show or otherwise transmit the message to others, I believe that there is a qualitative difference between that risk and the risk that the state will seize the message. Again, the observations of La Forest J. in Duarte are apposite, at para. 30:
I am unable to see any similarity between the risk that someone will listen to one’s words with the intention of repeating them and the risk involved when someone listens to them while simultaneously making a permanent electronic record of them. These risks are of a different order of magnitude. The one risk may, in the context of law enforcement, be viewed as a reasonable invasion of privacy, the other unreasonable. They involve different risks to the individual and the body politic. In other words, the law recognizes that we inherently have to bear the risk of the “tattletale” but draws the line at concluding that we must also bear, as the price of choosing to speak to another human being, the risk of having a permanent electronic recording made of our words.
[25] I would amend the latter observation of La Forest J., given the realities of the world in which we now live more than twenty years later, to say that the law ought to draw the line between the risk of the “tattletale” who chooses to show a text message to a third party and the seizure by the state of text messages as the price of someone choosing to adopt this form of “new age” private communication over the traditional telephone call.
[26] If my analysis that text messages are much closer to a telephone conversation than to other forms of communication is correct, then it would follow that S.M. has the right to challenge the authorization by which those communications were obtained even though he is not a named party in the authorization nor was it directed expressly at him or at his phone. This conclusion flows naturally from the conclusion reached in R. v. Shayesteh (1996), 1996 CanLII 882 (ON CA), 111 C.C.C. (3d) 225 (Ont. C.A.) where Charron J.A. said, at para. 40:
In this case, however, since the appellant’s own telephone calls were intercepted as a result of the targeting of Daryoosh in the second and third authorizations, he clearly had an expectation of privacy with respect to those communications. This expectation of privacy is sufficient to give him standing to dispute the legality of those interceptions.
[27] In opposing such a conclusion, I was referred by the prosecution to the decision in R. v. Giles, 2007 BCSC 1147, [2007] B.C.J. No. 2918 (S.C.). In that case, other accused complained about the seizure of email messages from a BlackBerry belonging to one of the accused. They contended that the police needed a Part VI authorization to intercept those emails. The British Columbia Supreme Court rejected that contention. I agree with that conclusion for the reasons that I have already set out above. However, that decision does not address the privacy analysis regarding text messages that I have engaged in above. I should also add while I am addressing that decision, since it has relevance to the fifth issue, that I do not agree with the conclusion in that same case that the police did not infringe the s. 8 rights of the owner of the BlackBerry by conducting a warrantless search of it incidental to his arrest. That conclusion is in conflict with the subsequent decision in R. v. Manley (2011), 2011 ONCA 128, 269 C.C.C. (3d) 40 (Ont. C.A.).
[28] I conclude therefore that S.M. has standing to challenge the searches that lead to the authorities discovering the text messages between Mr. Skeete and him and to have the validity of those searches determined.
Skeete search warrant
[29] The defence says that the Information to Obtain used to obtain the Skeete search warrant is flawed and misleading. The defence further says that if the ITO had been properly presented, the search warrant would not have issued. In fact, the defence goes further to suggest that the police not only misled the issuing judge but did so deliberately. I find little merit in the alleged failings in the ITO and no merit to the suggestion that the police deliberately misled the issuing judge.
[30] The defence says that the police should not have been able to obtain a search warrant for Lamar Skeete’s residence because all they had was a “hunch” that Lamar Skeete and J.B. were involved in the murder of Kenneth Mark. Suggesting that the police only had a “hunch” unfairly characterizes the state of the investigators’ knowledge. Lamar Skeete and J.B. were realistically and legitimately the prime suspects in this killing. The lack of anything else in the background of Mr. Mark that would suggest a motive for this murder, the history between Mr. Skeete, J.B. and Mr. Mark, the consequences of the attempted murder charge and the proximity in time between the completion of that charge and the killing of Kenneth Mark pointed straight at Mr. Skeete and J.B. as prime suspects in this crime. In addition, the police had an eyewitness who placed two young black males at the scene of the shooting. The descriptions of those males, while general in nature, could have fitted either Mr. Skeete and/or J.B. in the sense that they were both male, both black, both thin, both young and both relatively short. As well, the investigators had reason to believe that the male captured in the bake shop video was an associate of Mr. Skeete and J.B. While the police may have been some distance from proof of their involvement, they clearly had more than a “hunch”.
[31] The defence also complains that the ITO suggested that there were two eyewitnesses to the events rather than just the one that there was. This suggestion arises from the fact that the ITO refers to an unnamed independent witness and then subsequently refers to the eyewitness by name. While I acknowledge the possibility that a reader of the ITO could be so confused, I consider that possibility to be extremely remote. The ITO itself is only sixteen pages long. It therefore has the distinct benefit of being brief and easily read and re-read. The affiant does initially refer, in paragraph 2, to there being “an independent witness” with particulars as to that witness’ identity. However, in the very next paragraph, the affiant refers to the fact that he has reviewed the video statement of the witness who is named. While the affiant does not expressly connect this witness to the unnamed witness in the immediately preceding paragraph, the match between the two is obvious.
[32] I would also note that, even if I accepted the defence submission on this point, I am ultimately required, in determining the validity of the search warrant, to consider whether the search warrant could have issued if the offending portions are removed – see R. v Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992. Whether there was one eyewitness or two would not, in the circumstances of this case, have affected whether the search warrant should have issued.
[33] The defence also complains that relevant information was contained in different parts of the ITO in an intentionally disconnected manner so that the issuing judge would be confused and not appreciate the failings in the ITO that would have been apparent if the information was presented together. On this point, I simply repeat that this was a sixteen page ITO. It would have been very easy for the issuing judge to go back and forth within the ITO to compare pieces of information assuming, of course, that the issuing judge was confused or thought that process was necessary. In any event, I do not agree that the information was presented in a manner that was disconnected or misleading.
[34] The defence also complains that the descriptions offered by the eyewitness that are recorded in the ITO differ in some respects with what is actually seen of the male on the bake shop video. While I accept that is the case, in my view, those differences are not material for the purposes of the search warrant. The obtaining of a search warrant does not require proof beyond a reasonable doubt or, for that matter, even probable guilt. It requires simply that the police satisfy the issuing judge that there “are reasonable grounds to believe” that there is anything that will afford evidence of an offence located in a building or place. I have already set out why I accept that the police had reasonable grounds to believe that Lamar Skeete and J.B. may have been involved in this shooting and that a search of their residence would afford evidence of that fact through the items that they were authorized to search for. I would add on this point that the ITO did make it clear to the issuing judge that neither Mr. Skeete nor J.B. is the male seen in the bake shop video.
[35] In considering all of these matters, I take the same approach as was expressed in R. v. Nguyen, 2011 ONCA 465, [2011] O.J. No. 2787 (C.A.) at para. 57, that is, that 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”.
[36] The challenge to the Skeete search warrant fails.
D.L-K search warrant
[37] I can deal with this issue more briefly and I do so only out of a sense of completeness. I say completeness because I have already concluded that S.M. does not have standing to challenge the search and seizure of the cell phone belonging to K.R., D.L-K.’s cousin, since the only evidence obtained from it upon which the prosecution relies is the contents of the contact list and the reference to “B-Triz” and the related phone number.
[38] In any event, I see no basis for the challenge to this search warrant especially given my conclusion regarding the Skeete search warrant. Information from the execution of the Skeete search warrant along with an anonymous tip lead to D.L-K. D.L-K was staying with his aunt and K.R. during the time of the murder. Contact had occurred between Mr. Skeete’s cell phone and the home number for D.L-K.’s aunt on the day of the murder. The accumulating information provided reasonable grounds for a search warrant for the residence of D.L-K.’s aunt and the seizure of cell phones found therein. It was clear that any cell phone found might provide potentially useful evidence in this case given what was already known about the degree of contact between the cell phones of individuals who were thought to be involved. On the issue of the importance of cell phones as a potential source of evidence, I repeat what I said in R. v. Skeete, 2012 ONSC #2633 at para. 3:
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, [2011] O.J. No. 5023 (S.C.J.) at para. 33.
[39] The defence suggested that, once the police executed the search warrant and found a number of cell phones, they ought to have been required to return before the issuing judge and obtain further authorization to actually search those phones since it would not be clear to whom the phones belonged. I do not see why such an additional step should be imposed on the police in these situations nor do I understand what additional information could be placed before the issuing judge that would allow him or her to grant this supplemental authorization. Unless the police actually determine what information is contained within the cell phone, they have no basis for providing additional information to the issuing judge to justify a search of the cell phones. Even a cursory examination of the cell phone to determine who it belonged to would not be determinative since some people do not register their phones in their own names. In any event, even if the stated owner of the cell phone is known, that does not mean that someone else did not use that cell phone. Indeed, as it turned out in this case, D.L-K. used the cell phone belonging to K.R. in the days leading up to, and subsequent to, the murder. The fact is that the police had a search warrant that authorized them to seize cell phones and that was sufficient authority to search any cell phone seized.
[40] The challenge to the D.L-K. search warrant fails.
S.M. search warrant
[41] Given my conclusions regarding the first two search warrants, the challenge to the S.M. search warrant must fail because it is largely based on the results of those two earlier search warrants and the connections that they demonstrated between Mr. Skeete and S.M. In fairness, the defence concedes that the text messages found on Mr. Skeete’s phone between him and S.M. would have justified the S.M. search warrant on their own.
[42] That said, there is one issue that should be addressed. The ITO for the S.M. search warrant reveals that one of the homicide detectives had contacted Telus and obtained from Telus certain information regarding where S.M.’s cell phone was before and after the shooting. It is unknown why Telus provided this information to the police without a search warrant or a production order. It is clear that the police should not have obtained this information without such an authorization and the police should have known that they were not entitled to it in the absence of that authorization.
[43] In my view, that information must be excised from the ITO and the issuance of the search warrant considered without regard to that information. Again, in fairness, the prosecution agrees that that is the case. Nevertheless, as I have already noted, the ITO contained sufficient other information to warrant the issuance of the search warrant.
[44] The challenge to the S.M. search warrant fails.
The search of S.M.’s phone
[45] As I earlier noted, when S.M. was arrested, the police found a cell phone on his person. That phone was searched by the police without a warrant. There was no issue regarding ownership of the phone and no pressing reason to search the contents of the phone for public safety or like concerns. The police should have obtained a warrant to search that phone – see again R. v. Manley above.
[46] However, had S.M. been home when the search warrant for his residence was executed, the police would have been able to seize his cell phone and examine it. The minor disparity that results from the timing between these events could fairly be described as a technicality. Given those realities, and accepting that the warrantless search of S.M.’s cell phone resulted in a breach of S.M.’s rights under s. 8 of the Charter, it was an inconsequential breach. Any proper analysis under s. 24(2) arising from that breach could not lead to any reasonable conclusion that the evidence obtained should be excluded. Once again, the defence fairly concedes that would be the result.
[47] The challenge to the evidence obtained from S.M.’s cell phone fails.
[48] It is for these reasons, that the application was dismissed.
NORDHEIMER J.
Released: May 18, 2012
Court File No.: YC-11-10000002
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
S.M.
(a young person pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1)
Applicant
REASONS FOR DECISION
NORDHEIMER J.
RELEASED:
[^1]: When I refer to a search in this context, I do not distinguish between the formal search warrants by which cell phones were seized and the production orders that were obtained for the records relating to the cell phones. Under either form of order, searches are conducted and the same issues arise.
[^2]: I add a note of caution to this conclusion. If technology is developed (indeed if it exists now and is used) that would allow text messages to be intercepted as they are transmitted, it would then seem clear that Part VI would apply to that mechanism for seizing text messages.