ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-0100-00
DATE: 2014-04-16
B E T W E E N:
HER MAJESTY THE QUEEN
Joseph Wilkinson and David Dubinsky, for the Respondent
RESPONDENT
- and -
JOHN TSEKOURAS
Claude Richer and Kristen J. Mohr, for the Applicant
APPLICANT
HEARD: April 7,8,9,10, 2014,
at Thunder Bay, Ontario
Mr. Justice J.deP. Wright
Reasons On Voir Dire
[1] This is a voir dire.
[2] The accused is charged with drug offenses. He moves to suppress evidence found on a Blackberry device #. . .44505 seized by the police on 16 June 2011.
[3] The crown submits as a threshold issue that the accused had no reasonable expectation of privacy in the information contained in the device in the circumstances of this case.
[4] Both parties agree that cell phones may contain information that may be the subject of a right to privacy. (R. v. Manley ¶39)
[5] Both parties agree that the voir dire should first be limited to determining the question “did the accused have a reasonable expectation of privacy in the data contained on blackberry number. . . 44505 at the time that information was accessed by the police?”
[6] I believe that counsel agree that we proceed as follows:
(1) Did the accused have a reasonable expectation of privacy in the information in question when he had possession of the device which contained it?
[7] If the answer is “no” then that is the end of the issue under section 8. No analysis is necessary or possible under section 24 (2).
[8] If the answer is "yes" then we pass on to consider:
(2) Did the accused surrender his reasonable expectation of privacy by abandoning the device where it was easily accessible to anyone and the information it contained became accessible to the police?
[9] If the answer is "yes" then, again, that is the end of the discussion. Section 8 is no longer engaged.
[10] If the answer is "no" then we pass on to consider:
(3) Did the police breach his charter rights?
[11] If the answer is "no" then that is the end of the discussion.
[12] If the answer is "yes" then we embark upon a section 24 (2) analysis.
[13] The defense accepts that a reasonable expectation of privacy is the foundation of the protections guaranteed by section 8 of the Charter and that the onus is on the accused to bring himself within this protection on a balance of probabilities.
[14] The crown agrees that the defense may file a record as its “Kuynec” material that is as its threshold facts upon which the defense moves but not as the evidence upon which it relies.
FACTS:
[15] The accused was swept up in the execution of Project Dolphin, a multi-agency police investigation of criminal activity in Thunder Bay. 16 June 2011 was "take-down day" for the project. This involved 100 to 120 police officers and the simultaneous execution of search warrants with respect to 16 separate locations. This was done at 7 AM.
[16] Neither the accused nor his property were to be the objects of searches and arrest. A five-man surveillance team was created. It was headed by Cpl. Miller of the RCMP. The instructions to this team were that they were to keep the accused under surveillance and report his conduct as word of the "takedown" spread. Written instructions were issued and read to the officers. These included the stipulation that the accused was not to be arrested because "at this time [the accused] is not arrestable".
[17] At 10:19 hrs. the accused was observed leaving Sequoia Avenue. Subsequently the surveillance team lost contact until 11:22. At 11:30 the accused drove to his brother-in-law's house. At 11:50 the surveillance team saw the accused leave that residence. He was driving a Chrysler minivan and eventually parked by Woodcrest School. At 12:00 a red pickup truck parked near the accused on the other side of the street. The accused got into the red pickup truck as a passenger. It then pulled away and drove around town. In the course of this driving the red truck passed some of the sites which had been subject to searches earlier. At 13:05 the red truck was joined by a green Honda and the two vehicles drove "in tandem" back to where the accused's vehicle was parked near the school.
[18] The accused got out of the red truck, went to his vehicle, took a bag and gave it to the people in the green Honda. He then went back to his vehicle, picked up a box of papers and returned with them to the green Honda. He returned his vehicle and then went back to the green Honda carrying some papers in his hand. The accused then got into the red truck and both it and the green Honda began to drive off "in tandem". The police considered that these actions were sufficiently interesting to warrant stopping the accused.
[19] The accused exited the red truck without being told to do so. He was holding the BlackBerry device in his hand. Cpl. Miller approached him carrying his holstered side arm in his hand at “the low ready” position, by which I take it he meant his arm was extended at a downwards angle pointed at the ground. According to my notes the officer testified that when the accused saw the officer approaching him he ripped the batteries out of the device and threw the device onto the ground. The officer also testified that he first ordered the accused to the ground then the accused removed the battery and attempted to throw the device to the ground. The accused was otherwise compliant with the officer’s orders.
[20] My impression is that the device was stripped and thrown, not dropped, simultaneously with and independently of, the order to get on the ground.
[21] Miller testified that he then handcuffed the accused. He testified that he arrested the accused for having possession of the proceeds of crime. With respect, I believe Cpl. Miller may have been mistaken in these details. There was no basis for arresting the accused on a proceeds of crime charge at that point. The latter had not been searched and the $2,100 which was later held as proceeds of crime had not yet been found.
[22] Then Acting Sgt. Dubec who arrived shortly afterwards, testified that Miller turned the accused over to him, that he was led to believe that the accused was in custody on a charge of obstruction of justice, a more realistic charge at that stage, that the accused was not handcuffed and in fact he was the one who handcuffed the accused, that it was he who searched the accused and removed his wallet which contained $180 and that it was he who found the $2,100 in another pocket which was ultimately retained as proceeds of crime.
[23] Sgt. Davis testified that he understood that the accused was in custody for obstruction and that he gave the accused an unconditional release on that charge on the understanding that if evidence was found on the device in question the charge would be revisited as a result of his attempt to destroy the phone.
[24] For our purposes these latter inconsistencies are irrelevant.
ARGUMENTS:
[25] The Crown submits that the defence raises issues of unreasonable search and seizure under section 8 of the Charter and seeks suppression pursuant to section 24(2). The Crown challenges the Defence on the threshold issue noting that "a claim for relief under section 24 (2) can only be made by the person whose charter rights have been infringed. See R v. Rahey, 1987 52 (SCC), [1987] 1 S.C.R. 588.” "The right to challenge the legality of the search depends upon the accused establishing that his personal rights of privacy have been violated." (R v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128 ¶ 45 #3)
[26] The Crown submits that at no time did the accused have a reasonable expectation of privacy with respect to the BlackBerry device or the information contained in it and that even if it could be argued that he had such an expectation initially the accused lost it through abandonment when he threw the device away.
[27] The Crown submits that it is incumbent upon the accused to establish an evidentiary foundation for his claim to section 8 protection. The Crown submits that the onus of doing this lies on the accused.
[28] The Crown accepts that the accused was the last person in possession of the device prior to it being thrown down but argues that possession alone is not enough to give rise to an expectation of privacy. (R v. Edwards ¶52)
[29] The Crown submits that the factual basis for a reasonable expectation of privacy has not been established and that the defence must establish this independently of the police. The defence cannot look to the conduct of the police or the theory of the Crown’s case for assistance. (R v. Edwards ¶33)
[30] The Crown refers to tests such as those to be found in R v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128 ¶ 45 and argues that the onus on the accused has not been discharged.
[31] The Crown submits that while the possession or control of the property searched is a factor to be considered in assessing the totality of the circumstances (Edwards ¶45(6)(ii)) possession alone is not sufficient to give rise to a reasonable expectation of privacy and that the court should not fall into error by adopting the "discredited rule of automatic standing".(Edwards ¶ 56)
[32] I have considered this issue and I have concluded that during the time the accused had physical possession of the device he had a reasonable expectation of privacy with respect to that device and the information contained therein. While possession alone may not be sufficient to found such an expectation there was also evidence led which was capable of establishing on a balance of probabilities (although, perhaps, not beyond a reasonable doubt) that the accused was in possession of the password necessary to access the information and that he had repeatedly used the device prior to losing possession of it.
[33] The device was no different than a schoolgirl's diary which protects her private thoughts with a clasp and lock. Surely to protect herself from the agents of the state she need prove only possession of the diary and the key to unlock it. This is not a high hurdle. (R v Patrick ¶37)
[34] We then proceed to consider what I believe to be the real issue, that is:
Did the accused surrender his reasonable expectation of privacy by abandoning the device where it was easily accessible to anyone and the information it contained became accessible to the police?
[35] The Crown argues that whatever the situation may have been prior to the action of the accused, the question of abandonment is a question of fact and the fact that he threw the device onto the ground was a clear and unequivocal gesture that he had divested himself of the device and that his abandonment of it caused it to move out from under the protection of his right to privacy.
[36] There is no doubt that there are many cases where the work of the police has been made easier by the actions of the accused in jettisoning backpacks containing drugs, hurling revolvers in a sock out of the window onto the neighbour’s property, placing revolvers in the purse of one's girlfriend and placing incriminating evidence in garbage pails on public streets etc.
[37] The Crown argues that upon the mere divesting oneself of control of the container within which information is stored the information loses its privileged position.
[38] The defence argues that computers are fundamentally different from the information receptacles that search and seizure law has had to respond to in the past. Computers compromise the ability of the user to control the information that is available about them in two ways: they create information without the users knowledge and they retain information that users have tried to erase. (R v. Vu, 2013 SCC 60, [2013] S.C.J. No. 60, ¶43)
[39] The defence argues that abandonment is a conclusion inferred from conduct. (Patrick ¶54)
[40] The defense argues that the issue is whether the accused acted inconsistently with the continued assertion of his privacy interest. The defence argues that the act of throwing is ambiguous, that it was equally consistent with an assertion of his privacy interest.
[41] The Crown argues that intention has no role to play in determining issues of abandonment, that one looks to conduct only. It cites R v Patrick ¶¶ 22-25, and ¶54; Nesbitt, Stevens and Plummer.
[42] With respect I cannot accept this proposition. If an accused were to grind his heel into his cell phone at the same time commenting: "I don't want you looking through my messages" then this would seem to me to be an exemplification not of a desire to divest oneself of his cell phone with the consequent loss of his right to privacy but rather an exemplification of his desire to maintain his right of privacy.
CONCLUSION:
[43] What conclusions should we come to on the facts of this case? The difficulty is in the details.
[44] We have no direct evidence as to the intention of the accused when he threw the cell phone. We can come to two alternative conclusions. We can conclude that his reaction was consistent with an intent to divest himself of his association with the device or we can conclude that his reaction was consistent with an intent to assert his privacy interest.
[45] The onus is on the defense. The test is the balance of probabilities. Given the circumstances, what was the more likely intention?
[46] The fact is that the officer was standing in plain view of and in close proximity to the accused. They were on open ground. There was no way that throwing the device onto the ground under these circumstances could sever any ties between the device and the accused. The accused could not disassociate himself from the device. Removing the batteries is more consistent with trying to maintain privacy than it is with trying to hide any association with the device.
[47] The only reasonable conclusion one can accept on a balance of probabilities is that the accused was acting in accordance with an assertion of his privacy interest and was not abandoning such an interest.
[48] In the result I have concluded that the accused had a reasonable expectation of privacy with respect to the information contained on Blackberry device number ….44505 and that this expectation was not lost by throwing the device on the ground at the time of detention.
“Original Signed By”
The Hon. Mr. Justice J. deP. Wright
Released: April 16, 2014
COURT FILE NO.: CR-12-0100-00
DATE: 2014-04-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
JOHN TSEKOURAS
Applicant
REASONS ON VOIRE DIRE
J.de.P. Wright, J.
Released: April 16, 2014
/nf