ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-G30391
DATE: 2012/12/17

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – TROY SAIKALEY Applicant

Roderick W.A. Sonley, and Margaret Jarmoc, for the Crown

Gregory Lafontaine, for the Applicant

HEARD: November 13-16, 2012

rULING ON SECTION 8 AND SECTION 24(2) OF THE charter
and GAROFOLI APPLICATION

LALONDE J.

Introduction

Introduction

1On March 18, 2009, following a vacation in Mexico, the Applicant, Troy Saikaley, was re-entering Canada with his wife and children. Unknown to the Applicant, he had been targeted by a member of the Royal Canadian Mounted Police (“RCMP”) drug section as a person of interest in “Project A – Wire.”

2Project A – Wire was an investigation by the RCMP drug unit that began in November 2008. During the first phase of the investigation, following a tip from a confidential informer, police began to investigate Billy Joe Krieger, a known trafficker of cocaine in quantities of ounces, in the Ottawa and Pembroke area. The investigation quickly expanded as several other persons came to the police’s attention, following surveillance operations.

3On December 28, 2008, Girault J.P. refused to issue a Dial Number Recorder (“DNR”) order. However, on January 5, 2009, the RCMP did obtain a DNR warrant, an assistance order, a production of telephone records order and a sealing order related to a cell phone used by Mr. Krieger. Similar orders were obtained in February, March and April of 2009. Police had observed Mr. Krieger meeting the Applicant on at least one occasion on April 23, 2009.

4On March 18, 2009, customs officer, Ryan Spencer, who was acting as a target at the Ottawa International Airport, called the Canadian Border Services Agency (“CBSA”) Regional Intelligence Officer, Mark Bond. Earlier, Officer Spencer had contacted Officer Bond to advise him that the Applicant was on a passenger list for an aircraft landing at the airport. As a result, Officers Bond and Spencer caused the Applicant and his family to leave the customs line-up and come to the customs’ superintendent’s office. There, officers searched the Applicant’s iPhone and camera. A substantial debt list was discovered on the iPhone, named “O-due,” and contained a list of names of individuals and dollar amounts. A second file was located on the iPhone called “Shepherd Finance,” and it also contained a list of names and payment amounts. Among the names were “Billy Krieger” and “Sherri-Lynn Newton,” two individuals already on the RCMP drug unit suspects list.

5On May 20, 2009, the RCMP obtained, from a judge of the Ontario Superior Court of Justice, an authorization under s. 816 of the Criminal Code , R.S.C. 1985, c. C-46 [ Code ], for the interception of communications of several persons, including the Applicant. Two more Superior Court of Justice authorizations were obtained on July 13, 2009, and on September 10, 2009, to intercept communications. The authorizations involved the Applicant, and allowed the police to intercept communications in two of the Applicant’s vehicles. The second authorization, aside from allowing the interception of communications, allowed for “house probes.”

6On November 2, 2009, a judge from the Ontario Court of Justice granted other authorizations that led to the following results:

On November 5, 2009, police conducted a stop of the Applicant’s vehicle. There was another person known to be dealing in illicit drugs in the vehicle with the Applicant. A search was performed, incident to arrest. In the vehicle, police found $5,620 in cash, 1 gram of cocaine, 20 grams of marijuana, 7 grams of hashish, keys to a storage room at 210-1380 Prince of Wales, Ottawa, Ontario, and the Applicant’s iPhone.

Also, on November 5, 2009, police conducted a search of 210-1380 Prince of Wales, Ottawa, pursuant to a Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA] search warrant, and found large quantities of hashish, hash, cocaine, Novocain, and marijuana. Police also found $4,720 CDN and $300 USD, drug packaging and weighing paraphernalia and an “Enfield .38” revolver (restricted firearm).

Further, on November 5, 2009, police conducted a search of 144 Kerry Hill Crescent Dunrobin, Ontario, pursuant to a [ CDSA ] search warrant and found a loaded “Glock 23” (prohibited firearm), two taser/stun guns, a butterfly knife, some ammunition, $128,310 CDN, but no cocaine or other drugs.

7Subsequently, the Applicant was arrested on November 5, 2009, and formally charged on March 18, 2010.

THE CHARGES

The Charges

8The Applicant stands charged with 60 counts, of which include: four counts of possession of a firearm without a licence, contrary to s. 91(3) of the Code ; possession of a prohibited firearm without a licence, contrary to s. 92(3) of the Code ; three counts of possession of a loaded, prohibited, firearm without a licence, contrary to s. 95(2) of the Code ; two counts of careless storage of a prohibited firearm, contrary to s. 86(3) of the Code ; four counts of possession of proceeds of crime exceeding $5,000, contrary to s. 355 (A) of the Code ; two counts of conspiracy to traffic cocaine, contrary to s. 465(1) (c) of the Code ; three counts of conspiracy to traffic a Schedule II substance (cannabis and marijuana); four counts of possession for the purpose (cocaine), contrary to ss. 5(2) and 5(3) (a) of the CDSA ; six counts of possession for the purpose of trafficking, possessing a substance included in Schedule II (cannabis resin and marijuana), contrary to ss. 5(2) and 5(3)(a) of the CDSA ; six counts of trafficking in a Schedule II substance (cannabis resin and marijuana), contrary to ss. 5(1) and 5(3)(a) of the CDSA; two counts of trafficking cocaine, contrary to ss. 5(1) and 5(3)(a) of the CDSA ; participation in a criminal organization, contrary to s. 467.11(1) of the Code ; committing an offence for the benefit of a criminal organization, contrary to s. 467.12 of the Code ; instructing a commission of an offence for a criminal organization, contrary to s. 467.13 of the Code ; possession of a Schedule II substance (cannabis resin) under 3 kg for the purpose of trafficking, contrary to ss. 5(2) and 5(4) of the CDSA : possession of a restricted firearm without licence, contrary to s. 92(2) of the Code ; possession of a Schedule I substance (cocaine), contrary to ss. 4(1) and 4(3) (a) of the CDSA ; two counts of extortion, contrary to s. 346(1.1) (b) of the Code ; conspiracy to traffic Schedule II (cannabis resin) substance under 3 kg, contrary to s. 465(1) of the Code ; eight counts of receiving payment or partial payment of interest at a criminal rate of interest, contrary to s. 347(1) (a) of the Code ; and duplicate eight counts of entering an agreement to receive interest at a criminal rate of interest.

9The Applicant has elected to stand trial before a judge of this court, sitting without a jury.

ISSUES

Issues

10In the Notice of Application, the Applicant raises the following issues:

(a) Did the Applicant have a reasonable expectation of privacy in the context of the border search which occurred on March 18, 2009, respecting the contents of his iPhone, such that the protection afforded by s. 8 of the Charter was engaged?

(b) If the Applicant had a reasonable expectation of privacy in his iPhone, in the border context, was the search one that was authorized by law and conducted in a reasonable manner?

(c) Was the Applicant’s right to be secure against unreasonable search and seizure, as provided by s. 8 of the Charter , infringed upon in the case at bar, with regard to the interception of his private communications and the execution of the search warrants with regard to his house and vehicle?

(d) Should the evidence gathered by the execution of the Authorizations to Intercept Private Communications and Search Warrants be excluded pursuant to s. 24(2) of the Charter ?

11Firstly, I will deal with the Applicant’s and Respondent’s positions on the s. 8 seizures. Secondly, I will address the s. 24(2) issue on exclusion of evidence.

THE APPLICANT’S POSITION

The Applicant's Position

12The Applicant seeks to have the following evidence excluded, pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [ Charter ]:

All products of the search of the Applicant’s iPhone device, conducted on March 18, 2009, by CBSA officers at Ottawa International Airport, including, but not limited to, the following items and facsimiles thereof:

(a) Photographs viewed and/or taken from the Applicant’s digital camera;

(b) The “O-Due” text file; and

(c) The “Shepherd Finance” text file.

All communications and the recordings thereof, intercepted under the authority of the following judicial authorizations:

(a) The part VI Authorization issued on May 20, 2009, by Métivier J. of the Superior Court of Justice; and

(b) The part VI authorization issued on July 13, 2009, by Maranger J. of the Superior Court of Justice.

All items seized during the execution of the following search warrants:

(a) The search warrant issued pursuant to the Controlled Drugs and Substances Act , on November 2, 2009, by Fraser J. of the Ontario Court of Justice, authorizing the search of the Applicant’s residence, 144 Kerry Hill Crescent, Dunrobin, Ontario; and

(b) The search warrant issued pursuant to the Controlled Drugs and Substances Act , on November 2, 2009, by Fraser J. of the Ontario Court of Justice, authorizing the search of 1380 Prince of Wales, Unit 210, Ottawa, Ontario.

All items on the Applicant’s person and in the Applicant’s vehicle seized, incidental to the Applicant’s arrest, on November 5, 2009.

EVIDENCE FROM CUSTOMS OFFICERS

Evidence from Customs Officers

13Todd Jolicoeur is an officer with the CBSA. He testified that on March 18, 2009, he was assigned to the secondary inspection area at the Ottawa International Airport. From the primary inspection line, the Applicant was referred to a secondary inspection line; the Applicant was referred to a secondary inspection area, not in plain view of the public. Officer Jolicoeur testified that the Applicant was directed, with his baggage, to the customs’ superintendent’s office. He further explained that the Applicant was a “lookout”. A “lookout” is a person, singled out by an intelligence officer of CBSA, as being a person of interest. A Canadian Police Information Centre (“CPIC”) check – a police record for criminality – and a travel history check were made regarding the Applicant, in the presence of Officer Bond, the Regional Intelligence officer and Officer Spencer, the targeter. The “targeter” is the officer in charge of vetting aircraft passenger lists to ascertain if any passenger has been subject to a seizure of goods in the past.

14Officer Jolicoeur described the search of the Applicant’s baggage, which was x-rayed. The suitcase was then subjected to an ion swab that was then fed through a machine to detect the presence of drugs. In the Applicant’s suitcase, the searches rendered a negative result for drugs. When asked to empty his pockets, the Applicant, who had just returned from an all-inclusive vacation resort, in Puerto Vallarta, Mexico, produced $2,200 in US currency and $2,100 in CDN currency. The Applicant told the officer, “I just like to have that much cash on me.” The officer also searched the Applicant’s iPhone and two cameras. Officer Jolicoeur explained during re-examination that where a passenger is not a “lookout,” but possesses a cell phone, the cell phone will be checked as part of the customs’ officer’s routine.

15Officer Bond explained that the role of an intelligence officer consists of developing intelligence probes that yield tactical intelligence, to assist the border services to interdict contraband, illegal migration, and any violations of the statutes governing the entry into Canada of foods, plants, and animals. He stated that there is a liaison role between CBSA, local police and federal police, to name only a few.

16On March 19, 2009, Officer Bond recalled that he oversaw the search done by Officer Spencer, and that he had noticed the “O-due” list, on the Applicant’s iPhone. He testified that several of the named individuals on that list were suspects of interest to CBSA with regard to narcotics. During the hearing of this motion, the officer read out the 45 names recorded in his notes.

17A secondary list titled, “Shepherd Financial,” was also found on the iPhone. It contained the name of “Mr. Krieger 15,000” and “Newton 6.5” and nothing else. The officer then read 47 names, each accompanied by a phone number, as being the contacts the Applicant had listed on his iPhone.

18Officer Bond was asked what information he had, when the Applicant was questioned in the customs’ office. First, the officer identified Exhibit 2, which I now reproduce as follows:

From: “Bond, Mark”

To: 00109293.LEOMONT.NCR_REMOTE

Date: 12/1/2008 8:18 AM

Subject: Help :-)

We should meet

-----Original Message-----

From: Lisa Williams-Pelly

Sent: November 28, 2009 1:06 PM

To: Bond Mark

Subject: Help :-)

Hey Mark

Just wanted to let you know that it was confirmed that Troy Saikaley is currently out of the country. Still not sure of an exact location, other than China. But, it has been suggested that he may return in the very near future – sorry that I can’t be more specific here. At any rate, just wanted to make sure that he is flagged & that anything that he may have with him is checked.

Also, I am looking for anything CBSA may have on the following people (travel history, companions/associates, contact info, etc.)

1. KRIEGER, Billy Joe (1974-12-08) his surname has also been spelled KRIEGER as well. He was recently released from a 2 year prison term so I am not expecting much from this guy.

2. NEWTON, Sherri Lynn (1986-08-01)

And I would also ask that _________as well in the event of future travel.

As always, thanks a bunch.

Lisa

RCMP-GRC

Ottawa Drug Section – Section Antidrogue d’Ottawa

155 McArthur Avenue

Ottawa, Ontario

K1A 0R4

[The remainder of the decision continues exactly as in the source text, preserving all paragraphs, headings, and wording through paragraph [143] and the release line.]

LALONDE J.

Released: December 17, 2012

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – TROY SAIKALEY Applicant ruling on section 8 and section 24(2) of the charter and GAROFOLI APPLICATION Lalonde J.