ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-30000219-0000
DATE: 2014-02-18
B E T W E E N:
HER MAJESTY THE QUEEN
Robert Fried for the Crown
- and -
JASON CAIN
Gabriel Gross-Stein for Jason Cain
HEARD: December 5, 6, 2013, February 10 - 13, 2014.
RULING ON APPLICATION TO EXCLUDE EVIDENCE
CORRICK J. (orally)
Introduction
[1] Mr. Cain applied to exclude from evidence at his trial recordings of two telephone conversations he had while an inmate at Millhaven Penitentiary. The telephone conversations were intercepted and recorded on April 12, 2010, and were seized on April 28, 2010 by the Toronto Police Service pursuant to a search warrant.
[2] Mr. Cain takes no issue with the seizure of the recordings by the Toronto Police Service. He argues that the recording of the conversations violated his rights protected by s. 8 of the Charter and ought to be excluded pursuant to s. 24(2) of the Charter.
Background
[3] Mr. Cain is on trial for charges of robbery, threatening death, use of a firearm, assault and intimidation. The offences are alleged to have occurred while Mr. Cain was serving a sentence in Millhaven Penitentiary.
[4] The Crown alleges that Mr. Cain orchestrated, from Millhaven, a gun-point home invasion on April 4, 2010 at the residence of his former partner, Ms. Sweetland. On April 12, 2010, Ms. Sweetland reported to the police that Mr. Cain had called her and threatened to kill her. The Crown alleges that Mr. Cain made a statement during this telephone call that supports the allegation that Mr. Cain was responsible for the home invasion.
[5] Police informed officials at Millhaven of Ms. Sweetland's allegation. As a result, Mr. Cain's telephone calls were intercepted. At issue in this application are telephone communications Mr. Cain had with Ms. Sweetland on April 12, 2010 that were recorded. The recorded calls are marked as Exhibit #5 on the voir dire.
Discussion
[6] Mr. Cain seeks the exclusion of the intercepted telephone communications on the basis that his right to be secure against unreasonable search or seizure protected by s. 8 of the Charter has been breached. The onus, therefore, rests on him to satisfy the court on a balance of probabilities that his s. 8 rights were breached and that the evidence should be excluded from the trial under s. 24(2). Mr. Cain bears a further onus to establish on a balance of probabilities that he had a reasonable expectation of privacy with respect to the telephone communications that were intercepted and seized by the police: R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128.
[7] Counsel agree that this issue is properly analyzed by considering the following questions:
Did Mr. Cain have a reasonable expectation of privacy in the telephone communications?
If he did, was the interception of the communications authorized by law?
If it was not, would the admission of the telephone communications bring the administration of justice into disrepute?
Did Mr. Cain have a reasonable expectation of privacy in the telephone communications?
[8] Whether Mr. Cain had a reasonable expectation of privacy depends on a consideration of the “totality of circumstances.” (R. v. Edwards, at para. 45) As Justice Binnie noted in R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, this “assessment always requires close attention to context.”
[9] The Supreme Court of Canada in Edwards listed the following seven factors, which are not exhaustive, that may be considered in assessing the totality of circumstances:
presence at the time of the search,
possession or control of the property or place searched,
ownership of the property or place,
historical use of the property or place,
the ability to regulate access, including the right to admit or exclude others from the place,
the existence of a subjective expectation of privacy, and
the objective reasonableness of the expectation.
[10] Mr. Fried submitted that Mr. Cain did not have a subjective expectation of privacy, and even if he did, such a belief was not objectively reasonable.
[11] Mr. Gross-Stein submitted that although Mr. Cain had a substantially diminished expectation of privacy by virtue of being a prisoner, he nevertheless had a reasonable expectation that his telephone communications would only be lawfully intercepted. In support of this submission, he relies on the decision of the British Columbia Supreme Court in R. v. Stubinski, 2002 BCSC 613 and the decision of the British Columbia Court of Appeal in R. v. Siniscalchi, 2010 BCCA 354.
[12] With respect, I do not agree with approach of the court in Stubinski, and I find that the facts of the Siniscalchi case are distinguishable from Mr. Cain's case. I will deal with the Siniscalchi case later in these reasons. In my view, the court in Stubinski merged the issues of whether the accused had a reasonable expectation of privacy with whether the search was authorized by law. This is contrary to the sequence of analysis to be followed to address s. 8 challenges set out by Justice Cory in Edwards. Cory J. addressed the issue at paragraph 33 as follows:
It is important to emphasize that generally, the decision as to whether an accused had a reasonable expectation of privacy must be made without reference to the conduct of the police during the impugned search. There are two distinct questions which must be answered in any s. 8 challenge. The first is whether the accused had a reasonable expectation of privacy. The second is whether the search was an unreasonable intrusion on that right to privacy. See Rawlings v. Kentucky, 448 U.S. 98 (1980). Usually, the conduct of the police will only be relevant when consideration is given to this second stage.
[13] Following what Cory J. held, two distinct inquiries must be made in this case. First, did Mr. Cain have a reasonable expectation of privacy? Only if I find that he did, do I go on to consider the second inquiry, whether the interception was authorized by law.
[14] I turn now to the evidence relevant to Mr. Cain's expectation of privacy. I begin with the context in general. These telephone calls were made by Mr. Cain while he was an inmate in a federal penitentiary. Prisoners, by necessity, are subject to surveillance, search and scrutiny. They live in environments where their level of privacy is substantially diminished. As Justice LaForest said in Weatherall v. Canada (Attorney General), 1993 112 (SCC), [1993] 2 S.C.R. 872 at paragraph 5, "a substantially reduced level of privacy is present in this setting and a prisoner thus cannot hold a reasonable expectation of privacy with respect to these practices." Although that case dealt with female guards frisk searching male prisoners, the principle applies equally in this case.
[15] Dealing specifically with telephone communications from the prison, Janice Whalen[^1], a security intelligence officer for Correctional Service Canada, testified about Mr. Cain's telephone privileges in Millhaven. Upon admission to the Millhaven Assessment Unit, Mr. Cain was given a phone card that contained a personal identification number. When he received the card, he signed a form known as a "Statement Concerning Private Communications," which acknowledged that he had been advised that any communication he has, other than with his counsel and members of Parliament and the Senate, may be intercepted or acquired through unassisted listening. Mr. Cain signed this document on February 10, 2010.
[16] Mr. Cain was also given an "Offender Orientation Handbook" when he was admitted to Millhaven. Section 36 at page 30 of that handbook sets out the rules governing telephone calls from within the institution. The handbook states that, "telephone calls may be monitored and recorded."
[17] Ms. Whalen testified that there are prominent signs throughout the institution in areas where the telephones are located that read as follows:
ALL ACTIVITIES INCLUDING CONVERSATIONS AND TELEPHONE COMMUNICATIONS IN THIS AREA, ARE SUBJECT TO MONITORING AND MAY BE TAPED OR VIDEO RECORDED.
[18] These signs were posted on the wall by the telephone in 1F range, where Mr. Cain was usually housed, as well as in the segregation wing, where Mr. Cain was housed on April 12, 2010. Ms. Whalen testified that while he was in the segregation unit, Mr. Cain would have had to pass these signs every time he went out to the yard or used the shower. When he was not in segregation, and was on 1F range, Mr. Cain had to walk by the signs everyday to leave the range. Photographs of the signs, together with the Offender Orientation Handbook and Statement Concerning Private Communications, have been marked as exhibits on the voir dire.
[19] It is apparent from Exhibit #1, the Statement Concerning Private Communications, that on February 10, 2010 Mr. Cain was aware that his calls were subject to being monitored or recorded. He had been in Millhaven for two months when he made the calls in question. Given the prominence of the warning signs throughout the institution, his acknowledgement in the Statement Concerning Private Communications, the contents of the Offender Orientation Handbook, and the absence of any evidence to the contrary, I find that Mr. Cain knew his telephone communications were subject to being monitored or recorded.
[20] One further factor I have considered in determining whether Mr. Cain had a reasonable expectation of privacy in these phone calls is the fact that they were not private calls. Mr. Cain did not call Ms. Sweetland directly. He called his sister, who in turn called Ms. Sweetland. At times during the recorded calls, Mr. Cain spoke to his sister. His sister remained on the line as he spoke to Ms. Sweetland and to another person named Shawna. Having a third person on the line while speaking to someone is the antithesis of having a private communication.
[21] This case is distinguishable from that of R. v. Siniscalchi in which the British Columbia Court of Appeal held that prisoners had a reasonable expectation that their telephone calls would only be monitored when certain statutory pre-conditions were met. In that case, the accused signed a document upon admission to the correctional facility acknowledging that all of his telephone calls would be recorded and may be accessed and reviewed by corrections officials if "they have reasonable grounds to believe that the call may disclose a threat to the management, operation, discipline or security of the centre or where there may otherwise be a risk to public safety." A booklet entitled "Information for Inmates: What you need to know," which was made available to all inmates, set out the same information. Unlike in the Siniscalchi case, the information provided to Mr. Cain did not include any limitations on when the telephone calls may be monitored or recorded.
[22] Mr. Gross-Stein also relied on the trial decision of Justice LaForme in R. v. McArthur 1996 Carswell5134 in support of his submission that Mr. Cain had a reasonable expectation that his telephone calls would only be intercepted as authorized by law. However, in my view this case does not assist because the issue of whether the accused had a reasonable expectation of privacy was not before Justice LaForme. The Crown conceded that the telephone conversations were private.
[23] Mr. Cain has not established on a balance of probabilities that he had a subjective expectation of privacy in his telephone calls and, in any event, such an expectation in all of the circumstances would not be objectively reasonable. I base this on Mr. Cain's knowledge that his telephone communications were subject to being monitored and recorded together with the three-way nature of the calls. I therefore find that Mr. Cain's s. 8 rights were not violated and his application is dismissed.
[24] Given my finding that Mr. Cain had no reasonable expectation of privacy, it is not necessary to go on to consider whether the interception of the calls was authorized by law.
Corrick J.
Released: February 18, 2014
COURT FILE NO.: CR-12-30000219-0000
DATE: 2014-02-18
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JASON CAIN
RULING ON APPLICATION TO
EXCLUDE EVIDENCE
Corrick J.
Released: February 18, 2014
[^1]: Janice Whalen was known as Janice Crawford in April 2010.