ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 2014/07/11

WARNING

A non-publication order in this proceeding has been issued pursuant to subsection 486.5 (1) of the Criminal Code.

BETWEEN:

HER MAJESTY THE QUEEN

– and –

THEODORE BECKFORD

Mihael Cole, for the Crown

O. Benjamin Vincents, for Theodore Beckford

Heard: June 19, 20, 23, 24, 25, 26, 27, 30, July 4. Judgment, July 11, 2012.

judgment,

J.D. McCOMBS J.

(a) The Charge

Theodore Beckford is a designated Long Term Offender (LTO) subject to a five-year Long Term Supervision Order (LTSO). He is charged under s. 753.3(1) of the Criminal Code that over the approximately seven weeks between May 1 and June 19, 2012, he breached a condition lawfully imposed by the National Parole Board[^1] restricting his entitlement to access the internet.
Specifically, the condition provides:

You are not to own, possess or have access to any computer or other electronic equipment with internet access, except for specific access for employment purposes and with the written authorization of your parole supervisor

Mr. Beckford has brought an application under the Charter of Rights and Freedoms seeking a stay of proceedings or alternatively, exclusion of evidence.
In these reasons, I reject Mr. Beckford’s Charter application and conclude that the evidence establishes his guilt beyond a reasonable doubt.

(b) The Charter Application

The Charter application raises serious allegations of misconduct on the part of correctional officials, the police, and the Crown. Mr. Beckford alleges that his cellphone was tampered with, and electronic data was planted in order to frame him. He alleges that correctional officers were complicit in the Charter violations, and that the Crown has abused the process of the court by proceeding with the charge in the face of “obviously” fabricated evidence. He also claims that various witnesses have committed perjury as part of a conspiracy to wrongfully convict him.
The Crown concedes that if the claims of evidence tampering, perjury and abuse of process were established, then this would be the “clearest of cases” where the only appropriate remedy is a stay of proceedings. See for example: R. v. Babos, 2014 SCC 16, 2014 S.C.C. 16, R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659 at p.1667.

(c) Trial Procedure—Blended Hearing of Charter Motion and Trial Proper

Much of the evidence on the Charter application is relevant to the issues on the trial proper, and counsel agreed that a blended hearing was appropriate in order to avoid duplication. Because determination of the Charter motion would necessarily involve credibility findings, counsel agreed that fairness required that I address the merits of the Charter application after all the evidence had been heard. Therefore, the evidence on the Charter application and on the trial proper was heard together, with argument at the end of the trial.
Merging a Charter application with evidence on the trial proper poses procedural challenges. While efficiency is important, trial fairness is the overriding consideration. There are differing onuses and burdens of proof. The accused bears the onus of establishing a Charter violation on a balance of probabilities, while the Crown bears the onus on the ultimate issue: whether the evidence displaces the presumption of innocence and proves guilt beyond a reasonable doubt.
Some of the witnesses called by the accused on the Charter motion were also Crown witnesses on the trial proper. Witnesses in that category were facing allegations of serious impropriety and were obviously adverse to the interests of the accused. With the agreement of the Crown, I decided that fairness required that defence counsel be permitted to cross-examine those witnesses.
I invited counsel to advise me at any point in the trial if there were concerns about whether the procedure that had been adopted operated unfairly to either side. Any procedural issues that arose were resolved after discussion and with the consent of counsel. After all of the evidence had been heard, counsel indicated that they were satisfied that the adopted procedure had been fair to both sides.
On the Charter application and the trial proper, the defence called six witnesses and the Crown called five. The accused did not testify.
I turn now to a discussion of the evidence. I will begin by discussing the events leading to the charge before the court. I will then discuss the allegations of evidence planting and other alleged misconduct, and explain my reasons for concluding that no impropriety has been established and for rejecting the Charter application. I will then address the evidence on the charge before the court and explain why I conclude that the accused has been proven guilty beyond a reasonable doubt.

(d) Events Leading to the Charge Before the Court

At the relevant time, Mr. Beckford was a resident of a half-way house known as Keele Community Correction Center (KCCC).
KCCC has about 40 beds, and houses parolees, as well as about 10 offenders subject to LTSOs. KCCC’s mandate is to try to achieve the difficult dual objectives of assisting parolees and long-term offenders to reintegrate into society while at the same time supervising them in order to ensure that the public is protected.
Mr. Beckford is a designated long-term offender (LTO) subject to a LTSO with a condition restricting his internet access to employment searches under staff supervision. Until his arrest on June 19, 2012, he had been at KCCC since July 28, 2011.
Mr. Beckford had been authorized to have a cellphone but not one with internet access. His parole officer, Heather Reville, had seized his cellphone in late-May because of concerns that he may have been using it to access the internet.
In order to ensure that Mr. Beckford could not access the internet over his cellphone, Ms. Reville, along with Correctional Officer Sharon McLymont, had accompanied Mr. Beckford on May 31, 2012 to a retail outlet to get him another cellphone with a limited data plan restricting usage to phone calls and text messaging. Parole Officer Reville arranged with the provider, Koodo, to have Beckford’s monthly statement sent to her so she could ensure that the data plan did not have internet access capability. The phone number assigned to Beckford was the same as his previous cellphone number: 647-858-6255.
During the period after May 31, 2012, Ms. Reville became increasingly concerned about Mr. Beckford’s deteriorating behavior. She ultimately decided to suspend his long-term supervision and have him detained in custody pending a status review. Authority to suspend and detain an offender subject to a LTSO is found in s. 135.1 (1) of the Corrections and Conditional Release Act. She conveyed her concerns to her supervisor, Crown witness Steven Popovski, who testified that he signed the warrant of apprehension on June 19, 2012.
Mr. Beckford was arrested on June 19, 2012. His room was immediately secured. Following standard procedure, the room was entered the next day in order to secure Beckford’s property. Two correctional officers, Sharon McLymont and Joy McTeague, unlocked Beckford’s room and entered together. Officer McLymont picked up Beckford’s cellphone and saw on its screen that the envelope icon indicated 153 unread messages. She did not open them or do anything further with the phone. She believed that Mr. Beckford had been using the internet in contravention of a condition of his LTSO.
Officers McLymont and McTeague immediately took the cellphone to Beckford’s parole officer, Ms. Reville, who looked at its screen, saw that there were 153 unopened messages, and that the subject lines showed that many of them related to Facebook or Twitter, both of which are internet-based social networking sites.
Parole Officer Reville immediately contacted Detective Constable Mark Repa, whose office was just a couple of doors away. She told him that it appeared that Beckford was following people on Facebook and Twitter and asked him to come to her office.
Detective Constable Repa is a police officer with Toronto Police Services (TPS). He was then working at KCCC as part of the Repeat Offender and Parole Enforcement team. D.C. Repa testified that he came immediately to Ms. Reville’s office. Ms. Reville gave him the phone. He testified that he went into it only to verify the “identity of the phone”. He went into “menus”, then “settings”, then “phone”, then “own number”, and observed that the display read 1-647-858-6255, the number registered to Mr. Beckford.
D.C. Repa testified that on June 20, he did not make any calls on Beckford’s cellphone. Ms. Reville and the two correctional officers also testified that they did not make any calls on the cellphone.
D.C. Repa seized the cellphone as evidence and returned to his office where he placed it in a property bag, assigned it a property number, and locked it in the property safe. He went to his computer and went into the Correctional Services Canada primary data base and into CPIC[^2]. He confirmed Beckford’s status as a Long-Term Offender subject to a LTSO with a condition limiting his access to the internet.
Based on the information he had at that time, he concluded that he had reasonable and probable grounds to believe that Mr. Beckford had breached a term of his LTSO.
The following day, June 21, 2012, at about 10:40 a.m., D.C. Repa took the cellphone out of the property safe and turned it on. He then called Beckford’s number, 1-647-858-6255, from his office land line. The cellphone display lit up and showed Repa’s office number on the call display. Repa then turned off the phone and returned it to the safe, where it remained, untouched, until August 24, the day D.C. Repa obtained a search warrant. After obtaining the warrant, Repa retrieved the cellphone, still in its sealed bag, and delivered it to TPS intelligence division for forensic testing.
Detective Repa swore that he did not touch the phone at any other time or in any way other than as he described.

(e) The Charter Challenge: The Alleged Evidence Planting

The Koodo Phone Records – alleged phone use while Mr. Beckford was in custody

• June 20

Koodo phone records show activity on Beckford’s phone on June 20, 2012. Ex. A1 is a Koodo phone bill dated July 7, 2012. It shows “message retrieval” activity on June 20 at 10:16 a.m.. Mr. Beckford could not have used his phone on June 20 because he was in custody.

• August 24

Koodo phone records also show activity on Beckford’s phone on August 24, 2012. Exhibit A2 is a Koodo phone bill dated September 7, 2012. Koodo’s records show that two calls were made to “*227” on August 24, 2012, at 8:41 a.m. and 11:38 a.m.
Beckford could not have made these calls from his cellphone because he was in custody.
Detective Constable Repa testified that August 24 was the day he obtained the search warrant, then returned to KCCC, retrieved the phone, and delivered it to the TPS intelligence division technological crime section. He testified that the phone remained sealed in the property bag while it was in his possession.
Ms. Joanne Strawson was a defence witness on the Charter application. She is an employee of Telus Communications, of which Koodo is a subsidiary. She is a security analyst who works as part of Telus’s court order liaison team. She assists in providing call records and has testified in court about 15 times concerning call records. She testified that she had been trained on billing procedures, but not on the “technical side”. She was permitted to give evidence on the Charter application, subject to the limitations on her expertise.
Ms. Strawson testified that the “*227” number is a Koodo/Telus payment services number and as far as she is aware, that number cannot be accessed without using the cellphone or handset. She also testified that as far as she is aware, a phone like Beckford’s (i.e., without a data plan), can incur accidental usage without the knowledge of the user. She also testified that text messaging does not involve use of the internet.

The Retrieved “Web Browsing” Data

• June 20 and June 27

Detective Constable Zachary Irvine is a technological crime investigator and computer forensic examiner with the intelligence unit of TPS. His c.v. is exhibit K. He was called by the Crown and was permitted to give expert opinion evidence concerning the retrieval and interpretation of data and artifacts resulting from internet activity, including cellphone analysis.
DC Irvine examined Beckford’s Samsung cellphone on October 25, 2012. He testified that the cellphone was antiquated and difficult to analyze. He removed the SIM card, recharged the battery, and used the forensic technology available to him to recover stored data.
The data he recovered showed web browsing “updates” on June 20 and June 27. He photographed each of the images from the cellphone. They were tendered as ex. C. They show a browsing history of 23 websites, all of which had been “last updated” in about two minutes on June 20, and of a further 5 websites, all of which had been “last updated” in about a minute on June 27. Most of the websites are of the provider, Koodo, or its parent company, Telus, but some are from other internet sources such as Facebook, Lavalife, Flickr, Yahoo, and Hotmail.
The defence position is that since Mr. Beckford was in custody, the phone records and web browsing data must have been planted on his cellphone to frame him for breach of his LTSO.
D.C. Irvine testified that the Samsung cellphone is not a modern phone. He called it a “strange” phone. It had a “proprietary operating system”, meaning that the phone was designed to “prevent interaction” and prevent knowing “how things run”. D.C. Irvine said there is not much information in the forensic community about how this phone works online. Although the Toronto Police Service forensic technology unit has tools to extract information from phones, the tools “wouldn’t let us pull data from this device”.
D.C. Irvine testified that in his opinion it would not be possible to insert the data into the phone as alleged by the defence. Among his reasons were that login credentials such as usernames and passwords would be needed in most cases. He tried to access some of the sites but was “kicked out” because he did not have that information. Also, in D.C. Irvine’s opinion, it would take at least 30 to 60 seconds per site in order to manually browse from one to the other. The websites retrieved as “last updated” on June 20 and 27 had been accessed at lightning speed - only a few seconds apart.
D.C. Irvine offered a number of speculative explanations for the data that he found:

i. The date and time settings on the cellphone may have been wrong;
ii. The carrier (i.e. the cellphone company or the provider) could have electronically “pushed” updates to the phone;
iii. The phone could have lost connectivity and later regained it;
iv. The battery could have died on the phone and the updates were “pushed” in when the phone was charged up again;
v. The web browser itself could have tried to refresh those dates by connecting to them.
vi. The “cookies” on the phone could have expired and when connectivity was restored, the browser could have attempted to update the information;
vii. The buttons on the cellphone could have been pressed.

Although D.C. Irvine’s evidence helped me evaluate the likelihood of evidence planting, he was speculating when he provided possible explanations as to how the data might have got there in the first place. He acknowledged that the cellphone was antiquated and that he could not be sure how the data got there.

(f) Discussion and Conclusion Re: Charter Application

It is unnecessary to determine how the data recovered from Mr. Beckford’s cellphone got there. The issue to be determined is whether the defence has established on a balance of probabilities that someone planted evidence of phone activity and browser history in relation to June 20, and 27, and August 24.
The evidence falls far short of establishing anything even remotely supporting the suggestion that Mr. Beckford has been the victim of an attempt to frame him.
How the data got on the phone on the dates mentioned is a mystery, even to D.C. Irvine, an expert forensic technologist. Based on the evidence I have heard, I am in no position to make findings of fact concerning the source of the data attributed to June 20, 27, and August 24. However, although I do not know how the retrieved data got there, I am certain, based on the evidence, that it was not due to some sinister action by any police officer or other state authority.
Based on the evidence, the most likely explanation is that the retrieved data got there through unexplained electronic means outside the control of investigative and/or prosecutorial authorities. The least likely explanation is that law enforcement authorities planted it there in order to frame Mr. Beckford.
Detective Repa could not have been responsible for the insertion of the data for several reasons: he lacked the technical expertise as well as the user I.D. information needed to carry out the alleged evidence planting. The retrieved browser history showed that on June 20, all 23 websites had been updated within a couple of minutes; and on June 27, 5 websites were updated within a minute. The evidence satisfies me that it is not humanly possible to browse that number of websites in such a short time.
Furthermore, it makes no sense to think that anyone wanting to frame Mr. Beckford would choose to plant evidence showing web activity and phone calls at a time when Beckford had no access to his phone because he was in custody. As well, as I will discuss later, there was ample other evidence, both on the cellphone and apart from it, that showed that Mr. Beckford had been accessing the internet in breach of a condition of his LTSO during the period covered by the indictment.
Each of the law enforcement officials who testified were credible witnesses who impressed me as honest, professional, and candid. Their evidence had the ring of truth and they were not shaken in vigorous cross-examination. I am satisfied that they bore no animus toward Mr. Beckford, and were simply doing their jobs in a responsible and honourable fashion.
I reject the suggestion that any of them behaved improperly.
There was no Charter violation. The application is dismissed.

(g) The Substantive Charge—Merits of the Case for the Crown

I am unable to give any weight to the web browsing history retrieved from Beckford’s cellphone by D.C. Irvine. Although I have found that the evidence was not planted there in an attempt to frame Mr. Beckford, I am unable to say how it got there. It follows that it has no evidentiary value in the case against Mr. Beckford.
However, other forensic and witness testimony leave no doubt that Mr. Beckford was accessing the internet during the period covered by the indictment. Exhibit H is a DVD containing nine electronic files. It has not been suggested that the information in those files has been tampered with. The files in exhibit H demonstrate, among other things, that on May 2, 2012, Mr. Beckford or someone acting on his behalf, created a profile of himself on the internet dating website, PlentyOfFish (POF). He gave himself the profile name “TeRock”. A POF profile cannot be created without accessing the POF website and providing a valid email address.
The TeRock profile contains two photos of Mr. Beckford. I accept the evidence of D.C. Repa and supervisor Steven Popovski that the background shows that the photos were taken in a resident’s room at KCCC.
There is no reasonable conclusion other than that Mr. Beckford created the POF profile himself by accessing the internet during the period covered by the indictment.
W.R.R. was a Crown witness. He testified that he had a POF profile. He testified that his POF site was contacted in May by “T”, or “Te”. It will be recalled that “TeRock” was Mr. Beckford’s POF profile name. W.R.R. checked the sender’s profile, was interested, and responded. They exchanged a few messages over the internet on POF, then exchanged phone numbers. Thereafter, they communicated frequently by text message until Beckford was arrested on June 19, 2012. The retrieved text messages contained in Ex. H, the DVD, in a file named “Beckford telus spreadsheet”, confirm the reliability of W.R.R’s testimony. He was straightforward and credible and his evidence was not undermined in cross-examination. I accept W.R.R.’s evidence.
M. R. was a Crown witness. He had met Mr. Beckford in Hamilton in April of 2010. Beckford called himself “T”. There was considerable evidence about communication between Beckford and M. R., but I consider most of it to be irrelevant to the core issue of whether Beckford accessed the internet during the period covered by the indictment. Most of the communication occurred prior to May 1, 2012, and the bulk of the communication after that date was in the form of text messaging.
The defence called Mr. Beckford’s aunt, P.B. She testified that from time to time, at Mr. Beckford’s request, she would use her email address to email friends of Mr. Beckford so that he could get their phone numbers. Some of the emails were sent during the period covered by the indictment. P.B. was a credible witness, but her evidence does not contribute to a reasonable doubt. I find that Mr. Beckford periodically used his aunt so that he could access the internet in contravention of his LTSO condition.
The Crown relied on other text messages and forensic evidence in support of its contention that Mr. Beckford had used Facebook and Twitter and other internet sites during the period covered by the indictment. Although the evidence is suspicious, I do not find it sufficiently persuasive to allow me to conclude beyond a reasonable doubt that he accessed any other internet websites during the period covered by the indictment.

(f) Conclusion

The defence evidence, including the evidence elicited in cross-examination of the Crown witnesses, does not raise a reasonable doubt. In evaluating the evidence that I do accept, I am satisfied that the guilt of Theodore Beckford has been proven beyond a reasonable doubt. In approaching this ultimate issue, I am guided by the principles in R. v. W.(D.), [1991] S.C.R. 742.
The evidence establishes beyond a reasonable doubt that Theodore Beckford, without written authorization of his parole supervisor, accessed the internet for purposes other than employment during the period covered by the indictment. In doing so, he breached a lawfully-imposed condition of his long-term supervision order.
Theodore Beckford is therefore found guilty as charged.