Regina v. Khan, 2013 ONSC 1570
Court File and Parties
COURT FILE NO.: 330/12
DATE: 20130410
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Raymond Khan
Applicant
Philip Zylberberg, for the Crown
Terry P. Waltenbury, for the accused
HEARD: March 7th and 8th, 2013
DECISION ON APPLICATION
Cornell J.:
[1] This is an application by the accused, Raymond Khan, to exclude evidence based upon a violation of his rights under the Canadian Charter of Rights and Freedoms following an alleged illegal arrest and an alleged unauthorized search of his Blackberry. For the reasons which follow, the application is dismissed.
Background
[2] On October 6, 2011, Detective Constable Hall of the Greater Sudbury Police Service received information from a confidential informant that a black male named Kyle was travelling to Sudbury to sell crack cocaine. Kyle would be travelling with his crew which consisted of three other black males and a white female with blonde hair. They would be travelling in a black Toyota with a licence number of BJCD325 and a red Mazda. The drugs were to be taken to 241 Second Avenue, Unit 295 in the City of Greater Sudbury (the “residence”). If there was any suggestion of police attention, the female was to “hoop” the drugs, which meant that she would place them in a body orifice.
[3] On October 6, 2011 at 10:46 a.m., the black Toyota was observed and followed to the municipal address which had been provided. This vehicle contained two black males.
[4] Approximately two minutes later, a red vehicle containing two black males and a white female with blonde hair parked in a nearby parking lot. The occupants of these vehicles then proceeded towards the residence, but were not actually observed entering it.
[5] As the information provided by the confidential informant had been proven to be correct, arrangements were made by the drug squad to begin surveillance of the residential unit and the vehicles which were coming and going to and from it.
[6] At 2:53 p.m. that afternoon, police followed the red Mazda vehicle and arrested its two occupants, who were subsequently identified as Jahvar Marshall and Melissa Coughlin.
[7] At 3:15 p.m., police observed a Hyundai car park near the residence. The occupants of this vehicle entered Unit 295 and came out five minutes later, which led the observing officer to suspect that a drug transaction had taken place. The vehicle was followed, pulled over and an arrest was made when the occupants of the vehicle were found to be in possession of crack cocaine.
[8] As a result of the information provided by the confidential informant, the police surveillance, and additional information received as a result of the arrest of the occupants of the Hyundai and Mazda vehicles, Constable Hall applied for and received a warrant pursuant to the Controlled Drugs and Substances Act. The warrant permitted the search of 241 Second Avenue, Unit 295 for cocaine.
[9] At approximately 6:25 p.m., the black Toyota, with two black male occupants, was observed to depart and instructions were given that surveillance be maintained on that vehicle.
[10] The vehicle was quickly spotted and was followed by Constable Hutton for approximately four kilometres before it was pulled over. After Mr. Khan had been arrested and grounded by the police, a Blackberry and a cell phone were found lying on the ground and were taken into the possession of Constable Hutton.
[11] It is against this background that Mr. Khan alleges that his arrest contravened s. 9 of the Charter and that Constable Hutton’s subsequent examination of the Blackberry constituted an illegal search within the meaning of s. 8 of the Charter.
The Arrest
[12] Constable Hutton began his shift at 12:30 p.m. on October 6, 2011. He was advised by his commanding officer, Detective Constable Hall, that information had been received from a confidential informant that cocaine was to be delivered to a residence in Sudbury that day. The delivery would involve the use of a black Toyota Camry, licence plate number BJCD325 as well as a red Mazda, bearing a Newfoundland licence plate number HVK471. The drugs were to be delivered to 241 Second Avenue, Unit 295, in Sudbury.
[13] Constable Hutton was made aware that the two occupants of the red Mazda were arrested at approximately 3:00 p.m. and that as a result of surveillance conducted at Unit 295, another vehicle had been stopped and an arrest had been made.
[14] At approximately 6:24 p.m., Detective Constable Train contacted Constable Hutton by radio to advise that a black Toyota Camry was leaving the residence. At 6:31 p.m., Detective Constable Train further advised Constable Hutton that a Toyota Corolla bearing the licence plate number BJCD325 and containing two black males was leaving the residence.
[15] At 6:40 p.m., Constable Hutton arranged for the Toyota Corolla to be blocked in. He approached the vehicle and proceeded to arrest Mr. Khan, who was the driver. As a result of Mr. Khan’s failure to follow commands being issued by Constable Hutton, Mr. Khan was grounded by police. After Mr. Khan stood up, Constable Hutton observed a Blackberry and a cell phone on the ground, neither of which had been present prior to Mr. Khan’s being taken down. Constable Hutton said that he told Mr. Khan that he was under arrest for possession of a controlled substance after he was removed from the vehicle.
[16] Constable Hutton testified that it was his decision to arrest Mr. Khan. He said that he based his decision to make the arrest on the information provided by the confidential informant which had been communicated to him by Detective Constable Hall, as well as the additional information that was provided to him about the arrests which had been made following the stopping of the Hyundai and Mazda vehicles. His decision was also based on information received from Detective Constable Train who indicated that at the time that the black Toyota left the residence, another black male had left the residence and was being pursued on foot.
Blackberry Search
[17] Following Mr. Khan’s arrest at 6:40 p.m., Constable Hutton made certain inquiries and determined that Mr. Khan’s driver’s licence was under suspension. He made arrangements for Mr. Khan’s vehicle to be towed, turned Mr. Khan over to Constable McNaught, and booked Mr. Khan at 7:50 p.m. after returning to the police station.
[18] At approximately 8:00 p.m., Constable Hutton began what he described as a “cursory search” of Mr. Khan’s Blackberry. Given the ongoing nature of the investigation, Constable Hutton said that he decided to do so because in his experience, such devices often contain text messages or photographs of drugs which might provide evidence of trafficking in narcotics. He testified that several times during the course of similar investigations, he has found text messages or photos of this nature which assisted in the investigation.
[19] The Blackberry was unlocked and was not password protected. This permitted Constable Hutton to scroll through several text messages and approximately ten photographs. When he came to a photograph showing a distinctively tattooed wrist and a hand with dark complexion holding a loaded handgun with a black handle, he immediately stopped searching and made arrangements to give the phone to Sergeant Burtt of the Sudbury Cyber Crime Unit.
[20] When asked about his authority to conduct such a cursory search, Constable Hutton testified that he believed that he had such authority pursuant to the CDSA warrant which had been issued as well as a general authority under the CDSA to conduct such a search as part of the arrest.
[21] Constable Hutton testified that he did not make any effort to check the other phone that was seized by him as it was locked.
[22] The photograph of the gun took on significant meaning when police searching the residence pursuant to the CDSA warrant discovered a fully loaded 38 calibre Taurus snub-nose handgun.
[23] During the course of cross-examination, Constable Hutton indicated that he was aware that it was necessary to review a search warrant to determine the extent of the permitted search. Although he had not reviewed the CDSA warrant which was issued for the residence, he was of the understanding that the warrant permitted a search of the Blackberry and told Sergeant Burtt that the CDSA warrant was the authority to permit the Blackberry to be searched.
[24] Constable Hutton acknowledged that at the time that he searched the Blackberry, he was not aware that he was permitted to search pursuant to incident of arrest powers.
[25] On October 7, 2011 at approximately 11:50 a.m, Sergeant Burtt received the Blackberry from Constable Hutton, as well as a copy of the CDSA tele-warrant. He proceeded to use software to access and download the text messages and photographs which were stored in the Blackberry. In particular, he extracted two photographs of Mr. Khan and two photographs of a black hand with a distinguishing tattoo holding a loaded handgun.
[26] As a result of advice received from the Crown Attorney’s office, a new warrant was obtained on February 6, 2012 which gave specific authorization for a search of the Blackberry which had been seized by Constable Hutton following the arrest. The original information identifying the Blackberry was incorrect, with the result that a further warrant to search the Blackberry was obtained on February 9, 2012.
The Law
[27] At the time of Mr. Kahn’s arrest, the law about the ability of the police to search a cell phone as an incident to arrest was in a state of flux.
[28] One line of authorities suggested that given the nature and amount of information which can be stored on a cell or smart phone, there was a high expectation of privacy with the result that it was necessary to obtain a warrant before conducting a search of a cell phone. See R. v. Polius, 196 C.R.R. (2d) 288 (Ont. S.C.), and R. v. Liew, 2012 ONSC 1826.
[29] A different approach was taken by the court in R. v. Fearon, 2010 ONCJ 645, where the court stated:
In my view, an ordinary cell phone objectively commands a measure of privacy in its contents. However, the expectation of privacy in the information contained in the cell phone is more akin to what might be disclosed by searching a purse, a wallet, a notebook or briefcase found in the same circumstances. The evidence in this case is that the LG cell phone appears to have had the functions of cell phone operation, text messaging, photographs and contact lists. While certainly private, the information stored is not so connected to the dignity of the person that this court should create an exception to the police ability to search for evidence when truly incidental to arrest and carried out in a reasonable manner.
[30] This line of reasoning was also taken in R. v. Otchere-Badu, 2010 ONSC 1059, and R. v. Gilles, 2007 BCSC 1147.
[31] This debate has now been clarified by the Court of Appeal for Ontario in R. v. Fearon, 2013 ONCA 106, a decision rendered on February 20 of this year. The narrow issue for the court to determine was whether the court should carve out a cell phone exception to the common law doctrine of search incident to arrest. In that case, a pat-down search following Mr. Fearon’s arrest led to the discovery of a cell phone. The cell phone was examined and found to contain photographs of a gun and cash as well as an incriminating text message.
[32] In Fearon, the investigating officer testified that based on his experience, cell phones often contain text messages sent between perpetrators that can assist police investigations. In order for this information to be of assistance, it is important that such information be obtained as quickly as possible following the arrest.
[33] Many months after the arrest, the police applied for a search warrant to download the contents of the cell phone in view of the uncertain state of the law. A search warrant was issued, the phone was re-examined and the photos and text messages were entered into evidence. The trial judge found that the search of Mr. Fearon’s cell phone did not breach s. 8 of the Charter of Rights and Freedoms and admitted the evidence from the cell phone.
[34] The starting point for the Court of Appeal’s analysis involved consideration of the Supreme Court’s decision in R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51. Lamer C.J. writing for a majority of the court was quoted at para. 25:
[T]he police must be must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a proper explanation.
[35] In rendering a decision not to carve out an exception for cell phones from the general power to search as an incident to arrest, the Court of Appeal in Fearon said at para. 57:
This case is not significantly different from Manley. I cannot conclude, in the circumstances of this case, that the original examination of the contents of the cell phone fell outside the ambit of the common law doctrine of search incident to arrest. Apparently, the cell phone was turned “on” and it was not password protected or otherwise “locked” to users other than the appellant. The police officers had a reasonable belief that they might find photographs and text messages relevant to the robbery. The initial search at the time of the arrest involved a cursory look through the contents of the cell phone to ascertain if it contained such evidence.
[36] In declining to carve out an exception for cell phones from the powers of search incident to arrest, the court took into consideration that the cell phone was not locked or password protected, the police knew from previous investigations that evidence relevant to the ongoing investigation could be obtained, and the cursory examination of the phone did not involve the use of someone with specialized skills or the use of specialized equipment. In conclusion, the court stated at para. 77:
It may be that some future case will produce a factual matrix that will lead the court to carve out a cell phone exception to the law as articulated in Caslake. This is not that case. To put it in the modern vernacular: “if it aint broke, don’t fix it”.
Analysis
[37] Counsel for Mr. Khan argued that despite Constable Hutton’s subjective belief that he had reasonable and probable grounds to arrest and consequently the right to conduct a cursory search of the Blackberry, Mr. Khan was in fact arbitrarily detained in contravention of his s. 9 Charter rights, and the resultant seizure and search of the Blackberry violated his s. 8 Charter rights.
[38] The defence urged the court to accept their view that the Blackberry device was akin to a mini-computer, and that the presence of highly intimate personal photographs was evidence of the need to protect Mr. Khan’s privacy interests. These interests, they argued, should be taken into account during the course of a s. 24(2) analysis, with the result that the evidence obtained from the Blackberry should be excluded.
The Arrest
[39] When Constable Hutton came on duty on the day in question, he was immediately provided with information about the on-going investigation. He was made aware of the information that had been received from a reliable confidential informant. The level of detail provided by the informant was significant, and included a description of and the number of people involved, a description of the two vehicles which were to be used including a licence plate numbers, as well as the full municipal address for the delivery destination for the cocaine. By the time that Constable Hutton came on shift, most, if not all, of the information provided by the confidential informant had been confirmed.
[40] Surveillance of the residence in question confirmed the presence of four black males and one white female with blonde hair. It was known to Constable Hutton that the red Mazda had been stopped and the occupants arrested after the vehicle left the residence and that the occupants of another vehicle that had attended at the residence had been arrested.
[41] At 6:25 p.m. when the black Toyota left the residence and in the process picked up another man, Detective Constable Train provided this information to Constable Hutton along with a licence plate number for the vehicle. Detective Constable Train also indicated at that time that they were in foot pursuit of a third male who had fled the residence.
[42] Although he was not explicitly told by Detective Constable Train to arrest the occupants of the black Toyota, Constable Hutton testified that it was implicit in the information provided by him that an arrest was to take place. Constable Hutton went on to say that based on all of the information that had been provided to him during the course of the day, he determined that he had reasonable and probable grounds to arrest the occupants of the black Toyota.
[43] Although no cocaine was ultimately found in the vehicle, on Mr. Khan, or on the other occupant, this information was not known to Constable Hutton at the time of arrest. To the extent that Mr. Khan relies upon the absence of drugs at the time of arrest as support for his position that he was arbitrarily detained, this hindsight view of the matter fails to take into account the totality of the information available to Constable Hutton. It also fails to take into account the possibility that Mr. Khan may well have been found to have been in possession of a controlled substance if it were ultimately to be found at the residence in question or if possession could have been established for the cocaine which was found at the time of the arrest of the occupants of the Hyundai vehicle.
[44] The threshold for an arrest is far lower than what is required to support a conviction. The arresting officer need only have reasonable and probable grounds for an arrest. Police are often involved in dynamic, fluid and fast-changing situations and investigations. This must also be taken into account in determining whether reasonable and probable grounds for an arrest exist.
[45] As already noted, defence counsel conceded that Constable Hutton held the requisite subjective believe that he had reasonable and probable grounds to arrest Mr. Khan. When I take into account all of the information that was available to Constable Hutton on the day in question, I am satisfied that there was an objective basis for the existence of Constable Hutton’s belief. Accordingly, I find that there was no violation of Mr. Khan’s s. 9 Charter rights.
Blackberry Search – Reason for search
[46] The evidence clearly shows that the Blackberry in question belongs to Mr. Khan and that it was seized by Constable Hutton at the time of arrest.
[47] Defence counsel argued that the information obtained from the Blackberry should be excluded due to Constable Hutton’s mistaken belief in the source of his right to conduct the search. Constable Hutton testified that he believed he had the right to search the Blackberry pursuant to the CDSA warrant when in fact, the warrant only permitted a search of the residence for cocaine. Constable Hutton testified that it was his usual practice to review a warrant prior to conducting a search, but that he had not done so on the occasion in question.
[48] The Charter has completely changed the law concerning searches by requiring that all searches must be authorized by law in one form or another. It has been determined that warrantless searches are prima facie unreasonable and that the onus is on the party attempting to rely upon a warrantless search to uphold the basis for the search being conducted. In undertaking this task, the party having that burden must point to a law which authorizes the search.
[49] In this particular case, the warrant which was obtained on October 6, 2011 for the search of the residence for cocaine did not provide any lawful authority for the search of the Blackberry. The Crown attempted to establish that the search of the Blackberry by Constable Hutton was done pursuant to the power to search as an incident of arrest. During the course of his evidence, Constable Hutton made it clear that he believed that his authority to search the Blackberry was pursuant to the warrant or general powers of search under the CDSA. At no point in time did he suggest that the search had been conducted pursuant to the search powers incident to arrest.
[50] The issue of the purpose of a search was specifically addressed by Lamer C.J. in Caslake. In that case, after arresting the accused for possession of narcotics, an RCMP officer conducted a search of the accused’s vehicle some six hours after arrest. The officer testified that he searched the vehicle in order to comply with an RCMP policy that mandated that the contents of an impounded car be inventoried. In addressing the attempt to introduce the results of that search pursuant to the search incident to arrest power, Lamer C.J. had the following to say at paras. 27 and 29:
Naturally, the police cannot rely on the fact that, objectively, a legitimate purpose for the search existed when that is not the purpose for which they searched. The Charter requires that agents of the state act in accordance with the rule of law. This means that they must not only objectively search within the permissible scope, but that they must turn their mind to this scope before searching. The subjective part of the test forces the police officer to satisfy him or herself that there is a valid purpose for the search incident to arrest before the search is carried out. This accords with the ultimate purpose of s. 8, which, as Dickson J. stated in Hunter, supra, is to prevent unreasonable searches before they occur.
The fact that this search was not, in the mind of the searching party, consistent with the proper purposes of search incident to arrest means that it falls outside the scope of this power. As a result, the search cannot be said to have been authorized by the common law rule permitting search incident to arrest.
[51] I prefer the approach taken by the minority in that case, which was decided 4-3. There, Bastarache, J. opined that was not necessary to independently establish reasonable and probable grounds to conduct a search incidental to arrest, and that in the circumstances, the police officer’s subjective belief in the purpose and justification for his search was not relevant.
[52] Nevertheless, I am bound by the decision of the majority.
[53] On the facts before me, it is clear that Constable Hutton conducted his cursory examination of the Blackberry under a mistaken belief that he was authorized to do so pursuant to the CDSA warrant which was obtained for the search of the residence or pursuant to the general CDSA search power. At no point during the relevant period of time in question was he under the belief that the search of the Blackberry was being conducted pursuant to the power of search incident to arrest. In view of this, I have no alternative but to find that the search of the Blackberry was improper and constituted a violation of Mr. Khan’s s. 8 Charter rights.
Subsequent Search Warrant
[54] When concerns were raised about the initial search conducted by Constable Hutton, the police obtained a subsequent search warrant, which authorized a search of a Blackberry cell phone with a specified model and serial number. This warrant was issued on February 6, 2012 and presented to Sergeant Burtt, who was to conduct the forensic examination of the Blackberry. Sergeant Burtt determined that the warrant did not refer to the phone in question. Another warrant was provided to him on February 9, 2012 which correctly identified the Blackberry in question. As a result, Sergeant Burtt proceeded to conduct a forensic examination of the Blackberry seized by Constable Hutton.
[55] Having found that the October 2011 searches of the Blackberry were carried out in breach of s. 8 of the Charter, it would ordinarily be necessary for me to review the Information to Obtain the search warrant without regard to the findings of that earlier search and determine whether the remaining information could reasonably support the warrant. See R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at paras. 55 and 56. In this particular case, I am unable to undertake that exercise as only the Information to Obtain the defective warrant dated February 6, 2012 was before me and no information about the Information to Obtain the warrant dated February 9, 2012 was provided. In view of this, I find that the results of the second search of the Blackberry conducted on February 9, 2012 were also obtained in violation of Mr. Khan’s s. 8 Charter rights.
Charter Breach
[56] I am of the opinion that all of the searches of the Blackberry which were conducted were done without lawful authority and accordingly, all of the evidence obtained as a result of such searches was obtained in violation of Mr. Khan’s rights under s. 8 of the Charter.
Section 24(2)
[57] Having determined that there was a violation of Mr. Khan’s s. 8 Charter rights, I will proceed to conduct a s. 24(2) analysis in accordance with the requirements of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. This analysis requires me to consider:
(i) the seriousness of the Charter - infringing state conduct;
(ii) the impact on the Charter – protected interest’s of the accused; and
(iii) society’s interest in adjudication on the merits.
[i] The seriousness of the Charter breach
[58] It has been held that there is a significant privacy interest in a cell phone. See R. v. Liew. This case illustrates such concern given the fact that even during the course of the cursory examination of the Blackberry, Constable Hutton discovered intimate personal photographs. For this reason, I find that the breach is somewhat serious given the privacy interest in cell phones.
[59] The Crown suggested that the court should also take into account the unsettled state of the law which existed at the time that Constable Hutton conducted his search of the Blackberry. The difficulty with this approach is that the evidence of Constable Hutton indicates that he was unaware of his ability to search the Blackberry device pursuant to a search power incident to arrest, and there is no indication that he had any knowledge about the unsettled state of the law.
[60] On the other hand, it was conceded by defence counsel that Constable Hutton honestly believed that he had the right to search the Blackberry. The evidence supported this concession. I am satisfied that when he conducted the examination of the Blackberry, Constable Hutton honestly believed that he had the right to do so, albeit for the wrong reason. He undertook only a cursory examination of the Blackberry and ended such search when he found the incriminating photographs. He held the honest belief that the Blackberry might provide information which would be of assistance in connection with the ongoing investigation in the form of text messages or photographs, including information which might assist in locating the suspect who had fled on foot and had not yet been apprehended.
[61] Despite the fact that I have found that the second and third warrants which were obtained to permit a lawful search of the Blackberry to be conducted do not cure the s. 8 Charter breach, they are additional evidence that the police were trying to act in good faith.
[ii] The impact on the accused’s Charter – protected rights
[62] As the Crown correctly notes in its factum, “the extent of the privacy interest affects both the seriousness of any breach and the impact of the search on the accused’s rights.” The fact of the matter is that there is little, if any, impact on the accused’s Charter-protected rights, as the evidence contained on Mr. Khan’s Blackberry was lawfully discoverable at all times. If Constable Hutton had known of his ability to conduct the cursory examination of the Blackberry device, I would have found that the evidence obtained by him was lawfully obtained.
[63] The Information to Obtain for the warrant which was provided on February 6, 2012 provided ample grounds for such a warrant to have been issued, but could not be relied upon as the identification information for the Blackberry was incorrect. Sergeant Burtt testified that when he received the warrant dated February 9, 2012, it contained the correct identifying information for the Blackberry. If the Information to Obtain for that warrant had been provided to me and had mirrored the information contained in the defective warrant of February 6, 2012, I would also have held that the results of that search were lawful.
[64] Given the fact that the information contained on Mr. Khan’s Blackberry could have been lawfully obtained if proper procedures had been followed, I find that this factor favours the admission of the evidence.
[iii] The public interest in the prosecution.
[65] Guns and drugs often make for a deadly combination including the death of innocent bystanders. The possession of a loaded handgun is something that Parliament takes very seriously. If the evidence which was obtained on the search of the Blackberry is excluded, no other evidence is available to assist the Crown in connection with the charges against Mr. Khan. .
[66] Faced with this prospect, the issue is correctly summarized in R. v. Little, 2009 41212 (ON SC), [2009] O.J. No. 3278 where M.K. Fuerst J. states at para 45:
The evidence is of such value to the Crown’s case that the vindication of the s. 8 violation through the exclusion of the evidence would extract too great a toll on the truth-seeking goal of the trial.
[67] In a case such as this where the evidence is of significant importance to the prosecution, the tendency is to favour inclusion of the evidence. See R. v. Polius, R. v. Caranci, 2012 ONSC 3470, 262 C.R.R. (2d) 146, R. v. Jones 2011 ONCA 632, 278 C.C.C. (3d) 157, and R. v. Biltcliffe, [2012] O.N.S.C. 5828.
Disposition
[68] After balancing all the factors, I am satisfied that the administration of justice will be brought into disrepute if the evidence obtained as a result of the search of Mr. Khan’s Blackberry is excluded. Accordingly, I decline to exercise my discretion to exclude such evidence with the result that the application is dismissed.
[69] The matter is remanded to May 21, 2013 at 10 a.m. for trial.
Mr. Justice R. Dan Cornell
Released: April 10, 2013
COURT FILE NO.: 330/12
DATE: 20130410
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Raymond Kahn
DECISION ON APPLICATION
Cornell J.
Released: April 10, 2013