ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-5-0000-409-0000
DATE: 20130215
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SUNDAY MAWUT
Applicant
Laura Bird, for the Crown
Ariel Herscovitch, for the Applicant
HEARD: February 11 and 12, 2013
b. p. o’marra j.
ruling
overview
[1] On October 13, 2011 a masked gunman robbed a pharmacy in Toronto. He fled on foot and was chased by uniform Toronto Police. As he ran he discarded a handgun, shoes, clothing and a cell phone. He eluded capture that night.
[2] Information retrieved from the cell phone relates to the applicant.
[3] The applicant was arrested on November 1, 2011 for the robbery and other related offences. The main issue on the trial will be identity.
the application
[4] The applicant claims the warrantless search of the information on the cell phone contravened s. 8 of the Charter.
the issue
[5] Did the applicant have a reasonable expectation of privacy in the information retrieved from the cell phone?
the facts
[6] In the late evening of October 13, 2011 a lone gunman robbed a pharmacy in Toronto. His face was covered. As he fled the store a uniformed police officer gave chase on foot. As the culprit fled he discarded several items of property including a semi-automatic handgun, his shoes, a balaclava and a cell phone.
[7] A civilian who happened to be nearby observed that the cell phone dropped or fell out of the pocket of the person who was fleeing. The civilian picked up the phone and handed it to a police officer. That phone was in due course turned over to Detective Moreau who was the officer in charge of the investigation.
[8] On October 14, 2011 Detective Moreau conducted a warrantless search of information from the cell phone. He copied down every contact and every sent or received text message for October 12 and 13, 2011. There were a series of text messages between the cell phone and a number that belonged to Sharon Jeethan. Ms. Jeethan is a lawyer who practices criminal law in Toronto. The text messages referred to “Sunday” and the police suspected this related to Mr. Mawut.
[9] There were three particular contacts found on the phone. One was “PJ”. Subsequent investigation revealed that to be PJ McFarlane. Mr. McFarlane was a group home worker who had worked with Mr. Mawut on an ongoing basis. The other contact located was “Tanya”. Subsequent investigation determined that was in fact Tanya Lico. Ms. Lico was a mental health worker who also had worked with Mr. Mawut on an ongoing basis in the past. A third contact referred to “Mo”. Investigation revealed that to be Mossad Abdelrahim. Several months earlier Mr. Abdelrahim had been arrested while in the presence of two other males. One of those other males was Mr. Mawut.
[10] The phone was registered in the name of Joe Jhon. Police determined that in fact Jo Jhon did not exist. The phone was not password locked.
[11] Mr. Mawut was arrested on November 1, 2011.
[12] The applicant did not testify on this application.
position of the applicant
[13] The applicant submits as follows:
There is a reasonable expectation of privacy in information on cell phones.
He had a subjective expectation of privacy in that information that was objectively reasonable.
The applicant need not testify in order to establish the subjective expectation of privacy.
It is clear that the phone belonged to the applicant whether or not he had the phone at the time that the masked culprit was being chased by the police.
the position of the respondent
[14] The position of the respondent is as follows:
Absent evidence that the applicant was in possession of the phone immediately before it was discarded, he has not established that he had a reasonable expectation of privacy in terms of s. 8 of the Charter.
The applicant cannot simply rely on the fact that the Crown alleges he is the robber in order to establish standing. That would be akin to a rule of “automatic standing” which has been rejected in the case law.
The Crown’s theory of ownership is not a relevant consideration at this stage. The applicant must establish standing.
analysis
[15] A person has, objectively viewed, a reasonable expectation of privacy in the contents of their cell phone.
R. v. Polius [2009] O.J. No. 3074 (O.S.C.) at para. 52.
[16] On a s. 8 motion the accused has the onus of establishing reasonable expectation of privacy on a balance of probabilities.
R. v. Belnavis (1996) 1996 4007 (ON CA), 107 C.C.C. (3d) 195 at paras. 25-33 (O.C.A.).
R. v. Emsley [2006] O.J. No. 5476 (S.C.J.) at para. 34.
[17] A reasonable expectation of privacy is a triggering device for s. 8 rights.
R. v. Gomboc 2010 SCC 55, [2010] 3 S.C.R. 211 at paras. 17-21.
[18] Whether the accused has a reasonable expectation of privacy depends on the totality of circumstances and involves two questions:
Did the accused have a subjective expectation of privacy?
Was that expectation objectively reasonable?
R. v. Gombac (supra) at paras. 17-21.
R. v. Edwards (1996) 1996 255 (SCC), 104 C.C.C. (3d) 136 S.C.C. at para. 45.
[19] Justice Cory set out a non-exhaustive list of factors for deciding whether an accused has a reasonable expectation of privacy:
Presence at the time of search.
Possession or control of the property or place searched.
Ownership of the property or place searched.
Historical use of the property or place searched.
The ability to regulate access including the right to admit or exclude others.
The existence of a subjective expectation of privacy.
The objective reasonableness of the expectation.
R. v. Edwards (supra) at para. 45.
[20] The applicant cannot simply rely on the fact that the Crown alleges that he was the robber who was chased by the police and who discarded or dropped the cell phone to establish standing. That would be akin to a rule of “automatic standing” which has been rejected by the Supreme Court of Canada in Edwards. If such an approach were permitted every applicant would have standing to bring a s. 8 application simply by virtue of the fact that they are charged with a criminal offence.
R. v. Edwards (supra) at paras. 52-56.
[21] The Crown’s theory of ownership is not a relevant consideration at this stage. The applicant is required to establish by evidence on the application that he in fact has standing to challenge the search and seizure.
R. v. Hanky [2008] O.J. No. 4285 (O.S.C.) at para. 11.
R. v. Belnavis and Lawrence 1997 320 (SCC), [1997] S.C.J. No. 81 at para. 15.
[22] Based on the Edwards factors the evidence presented on this application reveals the following:
The applicant was not present at the time of the search and seizure. Either he had fled the scene or was not there at all.
He did not have control or possession of the phone when it was seized and then searched.
There is no evidence he had possession or control of the phone at any time that night.
The phone was registered to an apparently fictitious name. There is no evidence it was ever owned by the applicant.
There is circumstantial evidence linking the applicant to historical use of the phone. There is no direct evidence that the applicant personally sent or received texts.
Even if the applicant sent or received texts there is no evidence as to whether other persons also used the phone.
There is no evidence that the applicant had the ability to regulate access to the phone.
The phone was not password locked.
There is no evidence that the applicant had a subjective expectation of privacy.
conclusion
[23] The applicant has failed to meet the threshold for an application under s. 8 of the Charter.
result
[24] Application dismissed.
B. P. O’Marra J.
Released: February 15, 2013
COURT FILE NO.: 12-5-0000-409-0000
DATE: 20130215
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SUNDAY MAWUT
Applicant
RULING
B. P. O’Marra J.
Released: February 15, 2013