ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 339/13
DATE: 2014-04-06
B E T W E E N:
Her Majesty the Queen
Mark Poland, for the Crown
- and -
Marlon Nurse and Darryl Plummer
Enzo Battigaglia, Counsel for Mr. Nurse
Margaret Bojanowska and Kate Oja, Counsel for Mr. Plummer
HEARD: April 3, 2014
ENDORSEMENT
PUBLICATION BAN:
Pursuant to subsection 648(1) of the Criminal Code,
no information regarding this portion of the trial shall be published in any document
or broadcast or transmitted in any way before the jury retires to consider its verdict.
Coroza J.:
ISSUE 1: SECTION 24(2) OF THE CHARTER (BLACKBERRY DEVICES)
OVERVIEW
[1] On April 2, 2014, I held that the searches of the Blackberry phones belonging to Mr. Nurse and Mr. Plummer (the applicants) and the Blackberry Playbook belonging to Mr. Plummer violated s. 8 of the Charter.[^1]
[2] Having found a s.8 breach, the applicants now seek exclusion of all data obtained by the searches. This data includes a series of Blackberry Messenger (BBM) chats/texts that passed between the phones of the applicants in the days leading up to the murder.
[3] The applicants seek exclusion under s.24(2) of the Charter.
[4] The test for exclusion is not disputed. I must consider whether or not the admission of the data seized from these devices could bring the administration of justice into disrepute in light of s. 24(2). The Supreme Court of Canada’s decision in R. v. Grant[^2], sets out a three part inquiry to be followed. When determining the issue of whether evidence should be excluded pursuant to s.24(2), the Court should consider the following factors:
The seriousness of the Charter-infringing conduct;
The impact of the breach on the Charter-protected interests of the accused; and
Society’s interests in seeing the case adjudicated on its merits
CONCLUSION (BLACKBERRY DEVICES)
[5] The onus is on the applicants to demonstrate that the admission of unlawfully obtained evidence would bring the administration of justice into disrepute. The applicants did not specifically call evidence pursuant to s.24(2), but all parties agreed that I could consider the evidence that was put forward by the parties during the s.8 voir dire. This evidence includes all of the warrants filed on the voir dire, the viva voce evidence called by the applicants (Mr. Dupuis and Cst. Bernier) and any agreed statement of facts that were filed on the voir dire.
[6] When I balance the three factors, and keeping in mind that I must be aware of the concern that routine admission of unlawfully obtained evidence could undermine respect for the Charter, I disagree with the applicants’ submissions that the remedy here is exclusion of all of the data seized from the Blackberry devices. I disagree that the remedy under s.24(2) in the circumstances of this case is an “all or nothing” proposition.
[7] The extraction reports reveal that the following types of active and deleted data records were recovered from the phones: 1) call logs; 2) chats; 3) contacts; 4) cookies; 5) emails; 6) notes; 7) SMS (texts); and 8) Web History.
[8] The following types of active and deleted data was recovered from the Playbook: 1) pictures; 2) video; 3) MP3 Files; 4) .ZIP files; 5) Bookmarks; 6) Browser History; 7) Cookies; 8) History Snapshots; and 9) Blackberry Call Log (1-647-821-4024)
[9] In my view, the applicants have not demonstrated that any chats, SMS (texts), emails, notes, and call logs should be excluded. However, I do agree that the applicants have demonstrated that the admission of cookies, contacts, Web History, Bookmarks, Browser History, History Snapshots, .ZIP files, pictures, video and MP3 Files from these devices would bring the administration of justice into disrepute.
[10] Accordingly, for written reasons that will follow, the following evidence derived from the Blackberry devices is admissible:
BBM chats
SMS (texts)
Emails
Notes
Call logs
ISSUE 2: OTHER WARRANTS (ROGERS AND OHIP WARRANTS)
[11] On April 2, 2014, I dismissed Mr. Nurse’s facial and sub-facial challenges to the following warrants based on violations of the Charter:
telewarrant issued on November 12, 2011 authorizing a search at 12161 the Gore Road in the Town of Caledon;
search warrant issued by Justice of the Peace Creelman on November 16, 2011 authorizing a search of the computers and related equipment seized from 12161 Gore Road
*production orders issued on December 1, 2011 (Rogers Communications); on February 15, 2012 (Toronto Dominion Bank); and on July 27, 2012 (Equifax)
*search warrant authorizing a search of the OPP ECrimes property vault issued February 29, 2012.
*search warrant authorizing the search of the storage locker on February 15, 2012
[12] I deferred ruling on Mr. Nurse’s challenge of the production orders issued on November 26, 2013 (Rogers) and November 28, 2013 (OHIP) pending further argument by the parties as to what information should be excised from the single ITO sworn by Det. Sortino used to obtain these specific production orders in light of my finding that the Blackberry chats seized from Mr. Nurse’s phone were obtained in violation of s.8 of the Charter.
[13] Having heard further argument on the matter, I dismiss Mr. Nurse’s challenge to these warrants.
ANALYSIS (ROGERS AND OHIP WARRANTS)
[14] Mr. Battagaglia relies on the well-known principle that information obtained as a result of unlawful activity by the police should be excised by a reviewing court in determining the validity of the warrant.[^3]
[15] Mr. Battagaglia argues that paragraphs referring to chats or messages retrieved from Mr. Nurse’s Blackberry phone should be excised from the Information to Obtain (ITO) used to obtain these specific production orders. Once the excision of that information is complete, he argues that there are no grounds to support the issuing of these two orders.
[16] The affiant in the ITO relies on chats between Mr. Nurse and the deceased, Mr. Kumar, at paragraphs 88 to 96 and 124 to 127.
[17] I did not understand Mr. Battagaglia to dispute that the chats between Mr. Nurse and Mr. Kumar were also seized from Mr. Kumar’s phone. In other words, the identical chats were stored in both phones.
[18] Mr. Battagaglia, however, submitted that Mr. Nurse has a reasonable expectation of privacy in the chats and that a violation of s.8 occurred when the police seized the chats from Mr. Kumar’s phone. Counsel relies on the decisions of R. v. Telus.[^4]
[19] I acknowledge that there is some debate as to whether an individual has a reasonable expectation of privacy in text messages stored on a recipient’s phone.[^5]
[20] I agree with the Crown that I need not weigh in on this debate. I am of the view that there are compelling arguments for both sides. However, even assuming that Mr. Nurse had a reasonable expectation of privacy in the contents of his chats with Mr. Kumar, and some residual privacy interest remained with the chats when they were stored in Mr. Kumar’s phone, there is absolutely no evidence on this record that the seizure or the reading of the chats by the police on Mr. Kumar’s phone was unlawful.
[21] There are two distinct questions which must be answered in any s. 8 challenge. The first is whether the applicant has a reasonable expectation of privacy. The second is whether the search was an unreasonable intrusion onto that right to privacy.
[22] The evidence falls far short of establishing that the police seizure or reading of the chats from Mr. Kumar’s phone breached the Charter. The affiant clearly references in the ITO that the chat was seized from both Mr. Nurse’s phone and Mr. Kumar’s phone and there is no evidence that lawfully reading the chat on Mr. Kumar’s phone was an unreasonable intrusion onto Mr. Nurse’s right to privacy.
[23] In conclusion, assuming that the answer to the first question is yes, the answer to the second question is no. I decline the invitation to excise paragraphs 88 to 96 and 124 to 127.
[24] My review of the orders is that there was a basis on which the issuing justice could have been satisfied that there were reasonable grounds to issue the production orders.
SECTION 24(2) OTHER WARRANTS
[25] If I am incorrect in my analysis of the legality of the searches pursuant to any of the other warrants, it is my view that the evidence derived from these warrants should not be excluded under s.24(2) of the Charter. Further written reasons will follow.
Coroza, J
Released: April 6, 2014
[^1]: Written reasons will follow
[^2]: 2009 SCC 32
[^3]: See R. v. Chang (2003) 2003 29135 (ON CA), 173 CCC (3d) 397 (Ont.C.A.) at para. 35
[^4]: 2013 SCC 16, [2013] S.C.J. No. 16 (at para.5 and 32)] and R. v. S.M. 2012 ONSC 2949, [2012] O.J. No. 2833 (S.C.J.)
[^5]: Nordheimer J. in R. v. S.M., supra, and Defreitas J. in R. v. Knox [2013] O.J. No. 4269 (C.J.) have held that text messages stored in another person’s phone carry with them a reasonable expectation of privacy. However, McCarthy J. in R. v. Pammett, 2014 ONSC 1213 has held that while it may be possible to establish a reasonable expectation of privacy, it should not, in the absence of subjective evidence, apply routinely to text messages stored in another individual’s phone.