ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-A13643
DATE: 20140401

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

JEFFREY JAMES FINNEGAN
Applicant

Julian Daller, for the Respondent

Michael A. Johnston, for the Applicant

HEARD: March 10, 11, 12 and 14, 2014

RULING

Beaudoin J.

1The Applicant seeks an order excluding unconstitutionally obtained evidence pursuant to section 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, on the basis that his section 8 rights were violated. He further seeks to quash the search warrant obtained in this proceeding on the basis that the affiant failed to make full and frank disclosure.

Background

2A number of exhibits were filed in this application and the court heard the evidence of Lisa Blasko, an Investigation and Intelligence Officer with Corrections Canada, Neil Baker, an Admission and Discharge Officer for Corrections Canada, and Detective Stephen Love. Their facts as set out below are not seriously in dispute.

3On December 15, 2009, at approximately 5:10 PM, a white male described as being in his 40’s, wearing a black leather jacket and a camouflaged scarf approached the bank teller at the TD Canada Trust at 1480 Richmond Road in Ottawa. The man showed the teller a note which stated that he was armed and that he wanted money. The teller grabbed $200, and a decoy money pack, placed the notes in a plastic bag and provided this to the robber. The robber left the bank. The police were called, attended and investigated.

4The investigation conducted by the Ottawa police service was inconclusive and was closed on March 4, 2010. On June 21, 2012, the Ottawa police received information that the suspect in the TD Canada Trust robbery pictured on an Ottawa police service website was Terry Trist. Detective Stephen Love of the Ottawa Police compared surveillance photos and the Ministry of Transportation photo for Mr. Trist and noted that Mr. Trist bore a strong resemblance to the robber. Mr. Trist was ultimately arrested for the robbery but was later ruled out as a suspect. While Mr. Trist was under investigation, Detective Love received a further tip that the suspect in the photograph look like Jeffrey Finnegan, the accused.

5Detective Love conducted a criminal record check for Mr. Finnegan which disclosed that Mr. Finnegan was incarcerated at Kingston Penitentiary. On September 18, 2012, Detective Love spoke with Lisa Blasko, a Security Intelligence Officer at Kingston Penitentiary. She advised him that Mr. Finnegan had been arrested by Kingston police on December 17, 2009. Detective Love requested photographs of Mr. Finnegan. After reviewing two of the photographs, he concluded that Mr. Finnegan bore a strong resemblance to the suspect in the bank robbery.

6Detective Love subsequently obtained a mug shot of Mr. Finnegan taken during the December 2009 arrest. Detective Love then spoke with Detective Harvey Kolff of the Kingston police about the arrest. Detective Kolff recalled that Mr. Finnegan had two garbage bags of property seized from the stolen car he was driving. A camouflaged scarf stood out in his mind. These items were no longer in the Kingston police’s custody and it was later learned that these items had been sent to the Kingston Penitentiary.

7Detective Love called Lisa Blasko who consulted Mr. Finnegan’s Personal Property Record and she determined that they had a record of a black leather coat. Detective Love requested that she access his personal property bin and photograph the coat. Detective Love received the photograph and was unable to see zippers on the upper sleeves. A brass button on the collar appeared to him to match one seen in photographs of the robbery; the cuffs were similar. Detective Love was told by Lisa Blasko that the property officer who took the pictures said that the sleeves had zippers near the shoulder. Surveillance photos of the robber revealed that his coat had zippers on the sleeves. She further advised Detective Love that he would require a search warrant to seize the coat. Some of these communications between Detective Love and Lisa Blasko were by e-mail and others were by phone.

8On November 7, 2012, Detective Love e-mailed Lisa Blasko advising that a warrant would be obtained to seize the coat; he further advised her that none of Mr. Finnegan’s property was to be released. On November 21, 2012, Detective Love attended the Justice of the Peace’s office in Ottawa where a warrant application was submitted. The information that the police had obtained about Mr. Finnegan’s property from Lisa Blasko was included in the Information to Obtain (“ITO”). The search warrant was granted on the same date.

9On November 23, 2012, Detective Love and Detective O’Neill attended a large administrative office at the Kingston Penitentiary and were presented with a large plastic container marked “Finnegan 766.” The box was taped and closed. The container was opened, its contents were searched, and the black leather coat was photographed. Mr. Finnegan was later advised by Detective Love that the coat had been seized from his property. Mr. Finnegan was formally charged for the robbery on December 3, 2012.

10The black leather jacket was found to have some staining in one of its pockets: this staining was subsequently tested by Dr. Elspeth Lindsay of the Center of Forensic Sciences, and confirmed to contain the same chemical found in dye packet dye. TD Canada Trust teller, Sebastian Podlesny, claims that he included such a dye pack amongst the money he provided to the robber.

Issues

11The issues raised in these applications are:

1. Did the Applicant possess a reasonable expectation of privacy with respect to his Personal Property Record and in his personal property which was stored and taped shut in an assigned bin at the Kingston Penitentiary?

2. Did Detective Love violate the Applicant’s right to be free from unreasonable searches and seizures, as guaranteed by section 8 of the Charter, by asking Lisa Blasko to disclose information contained in Mr. Finnegan’s Personal Property Record and by then directing her to conduct a warrantless search of the Applicant’s personal property bin?

3. Should the impugned evidence be excluded pursuant to section 24(2) of the Charter?

4. Could the search warrant have been issued if the impugned evidence is excised from the ITO?

5. Even if the photograph of the jacket is excised from the ITO, should the search warrant be quashed on the basis that Detective Love did not comply with his ex parte obligation to make full, frank, and fair disclosure in the ITO?

Reasonable Expectation of Privacy

12Section 8 of the Canadian Charter of Rights and Freedoms states that “[e]veryone has the right to be secure against unreasonable search or seizure.” The Applicant bears the burden of establishing that he had a reasonable expectation of privacy in his Personal Property Record and in his personal belongings stored in the storage bin at the Kingston Penitentiary. In R. v. Edwards, [1996] 1 S.C.R. 128, the Supreme Court established the following test at para. 45:

45 A review of the recent decisions of this Court and those of the U.S. Supreme Court, which I find convincing and properly applicable to the situation presented in the case at bar, indicates that certain principles pertaining to the nature of the s. 8 right to be secure against unreasonable search or seizure can be derived. In my view, they may be summarized in the following manner:

1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed.

2. Like all Charter rights, s. 8 is a personal right. It protects people and not places.

3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated.

4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably.

5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.

6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:

(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation.

7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.

13The factors listed in Edwards are not exhaustive. In this case, the Applicant was incarcerated at the Kingston Penitentiary. A number of decisions have addressed whether inmates have a reasonable expectation of privacy in their personal property stored in correctional facilities.

14The Crown submits that an item already in the custody of Corrections Service Canada is removed from an expectation of privacy. The Crown cites Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872. While that decision focused on the search of an inmate’s cell, the following paragraph is relevant to this inquiry:

5 Imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and to require observation. The frisk search, the count and the wind are all practices necessary in a penitentiary for the security of the institution, the public and indeed the prisoners themselves. 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.

15In Tyrell v. Canada (Attorney General), 2008 FC 42, 322 F.T.R. 236, the Court held that when determining whether a seizure is unreasonable, it should be remembered that the purpose of s. 8 is the protection of an individual's reasonable expectation of privacy.

16In R. v. McArthur, Justice Laforme dealt with an application under the Charter to exclude evidence of intercepted communication and stated that even in penitentiary environments Charter rights are not abolished but are significantly curtailed.

17In R v. Dobni, the accused was already in custody and his clothes and shoes had been placed in a locked locker in the change-room area. Police examined the property and later seized it with a warrant. The court concluded that the accused did not have a reasonable expectation of privacy.

18In R. v. Blais, the Ontario Court of Appeal considered the search of an inmate’s property that had been placed in a sealed but transparent plastic bag. The court held that the accused could not reasonably expect that agents of the state would not inspect those goods, although a warrant would be required to seize them.

19The case law does not, in every case, set out the legislative provisions that may be applicable and these should be considered in assessing the relevant authorities:

1. The Corrections and Conditional Release Act;
2. The Privacy Act; and
3. Commissioners Directives issued pursuant to the CCRA and the CCRR.

20The CCRA sets out provisions reflecting an environment where there is a greatly diminished expectation of privacy.

21Commissioners Directive 566‑12 describes the management and storage of inmate personal property and confirms that ultimate control and responsibility for such property rests with corrections officials.

22The following provisions of the Privacy Act are relevant:

8. (1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.

9. (2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed…

23In assessing the existence of the Applicant’s privacy interest the following facts are relevant:

1. The general public does not have access to Mr. Finnegan’s Personal Property Record;
2. A written request must be made for personal information;
3. The general public does not have access to the storage area;
4. The coat was held on Correctional Service Canada property rather than a private residence or storage location;
5. As a matter of course the Applicant’s property had already been viewed by police officers following his arrest;
6. Corrections officials searched and stored the property upon his admission;
7. The coat had an assigned value of $100;
8. The Applicant had no ability to regulate access to the stored property;
9. Access required special arrangements;
10. Corrections officials had custody and control over the effects;
11. They were responsible for loss of the property;
12. The property could be searched at any time for safety and security reasons;
13. The search in question involved photographing the exterior of the jacket only;
14. Inmates are subject to routine non‑intrusive searches without individualized suspicion;
15. Vehicles may also be searched without individualized suspicion;
16. Cells may be searched at any time.

24There is no dispute that the information contained in Mr. Finnegan’s Personal Property Record was shared with Detective Love. Lisa Blasko testified that she was authorized to share that information because of the investigation being conducted.

25Section 8(2)(e) of the Privacy Act does not require notice to the person whose information is requested. The section appears to have a limited administrative purpose of creating a record of requests.

Was there a Breach of Section 8 of the Charter?

26Having regard to the provisions of the Privacy Act, I conclude that Mr. Finnegan did have a very limited privacy interest in the information contained in his Personal Property Record.

27With respect to his personal property, I cannot conclude that he had a privacy interest in the contents of his storage bin that was under the complete control of Corrections Canada. I find that Detective Love did not violate the Applicant’s Charter rights when he asked Lisa Blasko to conduct a warrantless search of the Applicant’s personal property bin. Even if I am wrong on that point, whatever privacy interest he had was extremely limited.

Should this Evidence be Excluded Pursuant to Section 24(2) of the Charter?

28The Supreme Court set out the approach to be taken in determining if evidence should be excluded as a result of Charter‑infringing state conduct in R. v. Grant, 2009 SCC 32. A court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter‑infringing state conduct, (2) the impact of the breach on the Charter‑protected interests of the accused, and (3) society's interest in the adjudication of the case on its merits.

The Seriousness of the Charter‑infringing Conduct

29In Grant the Court explained that the more severe or deliberate the state conduct that led to the Charter violation, the greater the need for courts to dissociate themselves from that conduct.

30In this case, the breaches, if any, were technical and minor. The information could have been obtained through a simple written request. The property had already been seized and held by corrections officials. The impugned act involved only photographing the exterior of the jacket.

The Impact on the Charter‑protected Interests of the Accused

32Grant instructs courts to assess the seriousness of the impact of the breach on the accused’s protected interests.

33As I concluded above, an inmate has no reasonable expectation of privacy in personal effects under the custody and control of corrections officials. Any impact here was minimal.

Society’s Interest in an Adjudication on the Merits

34Society expects criminal allegations to be adjudicated on their merits. The court must weigh the truth‑seeking function of the trial against the need to protect Charter rights.

35The forensic examination of the jacket pockets provided highly reliable evidence. Its exclusion would negatively impact the repute of the administration of justice.

The Garofoli Application

36The Crown conceded that Detective Love could be cross‑examined on the Information to Obtain regarding certain omissions, including lack of observations of dye pack ink, absence of burn marks, the Band‑Aid seen in surveillance images, and the lack of proof the accused was in Ottawa.

37Defence also questioned differences in hair colour and height descriptions.

38Detective Love explained that he had no evidence that a dye pack had exploded and therefore made no comment regarding dye pack ink or burns. Photographs from shortly before the robbery showed the accused with salt‑and‑pepper hair.

39The standard for issuing a warrant is reasonable probability rather than proof beyond a reasonable doubt.

40My finding that the photograph of the jacket was not obtained through an unreasonable search significantly affects this analysis.

41As stated in R. v. Araujo, a reviewing judge must not substitute his or her view for that of the issuing justice.

42The grounds available to Detective Love included:

1. Information from a robbery crime analyst suggesting the suspect resembled the applicant;
2. A criminal record showing multiple robbery convictions;
3. Photographs resembling the suspect;
4. Similar hairstyle and hair colour;
5. Facial expression similarities;
6. Information from Kingston police recalling a camouflaged scarf;
7. Property seized at arrest including clothing;
8. Property traced to Kingston Penitentiary;
9. A record of a black leather jacket;
10. Photographs of the jacket showing similarities with the robber’s jacket.

43On the totality of the evidence before the issuing justice, there was reliable evidence that might reasonably be believed and justified the issuance of the warrant. The application to quash the warrant is dismissed.

Mr. Justice Robert N. Beaudoin

Released: April 1, 2014