SUPERIOR COURT OF JUSTICE

CITATION: R. v. Aguas, 2015 ONSC 3462

COURT FILE NO.: 676/13

DATE: 20150529

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

ANGELINO AGUAS

Rebecca Law, for the Crown

Jason Rabinovitch, for the accused

HEARD: March 2-5, 9-10, 2015

Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of any complainants and any information that could disclose such identities, shall not be published in any document or broadcast or transmitted in any way.

Kenneth L. Campbell J.:

Pre-Trial Ruling on Charter Application

I

Overview

[1] The accused, Angelino Aguas, faces an indictment that charges him with: (1) an alleged sexual assault on the female complainant, STED, on February 16, 2012; (2) an alleged act of voyeurism with respect to the female complainant, CBL, on May 20, 2012; and (3) an alleged sexual assault on the female complainant, KF, on May 22, 2012. The accused is a nurse at the Toronto Western Hospital, and it is alleged that the accused committed these offences during the course of his employment while each of the complainants was in attendance at the hospital seeking medical care.

[2] Members of the Toronto Police Service (TPS) began their investigation when they received a complaint of sexual assault by the complainant KF on May 24, 2012. In her statement to the police, KF alleged that when she had attended at the emergency department of the hospital two days earlier for treatment for some physical injuries, the male nurse that saw her, took her into a private treatment room, and had her remove all of her clothing. Once she had disrobed, the nurse took a number of pictures of her body with his iPhone. After reflecting on the nature of these photographs and the way the nurse touched her and spoke to her during their interactions in the treatment room, KF believed that she had been sexually assaulted by the nurse. When the nurse started sending text messages to the complainant from the hospital while the complainant was at the police station, the police immediately attended at the emergency department of the hospital where the accused was working, and ultimately arrested him.

[3] When the accused was arrested, he was advised of the general reason for the police investigation (i.e. that a sexual assault complaint had been made against him), but he was not advised of his right to counsel. Instead, he was questioned about the location of his cell phone. He reluctantly disclosed that it was at the desk where he had been seated, in the triage area of the emergency department, when the police arrived at the hospital. The police then went over to this triage desk and quickly discovered the accused’s iPhone in the centre drawer of the desk. Subsequently, the accused was formally arrested and, on his way back to the police station, was advised of his right to counsel. He spoke to duty counsel at the police station.

[4] Shortly thereafter, a search warrant was issued to permit the police to examine the contents of the accused’s iPhone. This examination revealed a series of 17 photographs of KF in various stages of undress. These images are focused almost entirely upon her breasts, buttocks and vaginal area. Some of the images reveal that the complainant was being touched at the time the photographs were taken. Only one image reveals some of the physical injuries that had caused KF to attend at the hospital in the first place. Some of these photographs are extreme close-up images of the complainant’s anal and vaginal areas. The accused’s iPhone also contained an audio-video recording, approximately 28 seconds long, of a very similar nature. While this recording shows the physical injuries the complainant suffered, it is similarly focused mainly upon the breasts, buttocks and vaginal region of KF. Indeed, the recording begins with close-up images of her anal and vaginal area. This examination of the accused’s iPhone also disclosed the exchange of text messages between the accused and KF, and between the accused and the police (after KF had given the police permission to pose as her by using her cell phone). This examination of the accused’s iPhone also revealed one photograph of another female, the complainant CBL. In this image, the CBL appears to be asleep or unconscious, and her left breast is fully exposed.

[5] Conceding that there was a violation of the accused’s right to counsel, protected by s. 10(b) of the Charter of Rights and Freedoms, the Crown does not tender any of the utterances of the accused, including his direction to the police that his cell phone was located in the triage desk. The Crown does tender, however, the evidence revealed by the accused’s iPhone. Indeed, the Crown alleges that these text messages, photographic images and the audio-video recording from the iPhone provide powerful and objectively reliable evidence of the commission of two of the three alleged offences by the accused, namely the sexual assault against KF and act of voyeurism with respect to CBL. This evidence, the Crown argues, should be admitted under s. 24(2) of the Charter.

[6] The accused argues, however, that this iPhone evidence should be excluded under s. 24(2) of the Charter, as it was obtained by the police in violation of his constitutional rights protected by ss. 8, 9 and 10 of the Charter. More particularly, the accused contends that: (1) he was unlawfully arrested by the police, in violation of s. 8 and 9 of the Charter, as the police did not have the necessary reasonable and probable grounds for his arrest; (2) as his arrest was unlawful, the accused and his surroundings could not properly have been searched incident to that unlawful arrest, so the police could not properly have discovered and seized his cell phone; (3) the police flagrantly violated his right to counsel by failing to advise him of his rights under s. 10(b) of the Charter immediately upon his arrest, and by convincing him to incriminate himself by disclosing the location of his iPhone; and (4) the Information to Obtain (ITO) the search warrant used to examine the accused’s seized iPhone should be quashed for various drafting deficiencies and, accordingly, the search of the iPhone was undertaken in violation of s. 8 of the Charter.

[7] At the conclusion of the hearing of this pre-trial motion, I advised the parties of my ruling. More specifically, I held that that the evidence of any utterances made by the accused following his arrest were not admissible, but that the evidence of the text messages, photographs and the video recording that were discovered on the accused’s iPhone were admissible. These are my reasons for reaching that conclusion.

II

The Facts

A. Introduction

[8] The evidence that was led by the parties on this pre-trial motion consisted of: (1) the evidence of the four police officers who were involved in the initial investigation in this case and in the impugned search and arrest of the accused; (2) the evidence of a nurse practitioner employed at the Toronto Western Hospital; and (3) some admissions that were made for the purpose of this motion. A number of exhibits were also tendered. The accused did not testify. I found the testimony of all of the witnesses credible and, for the most part, reliable. There were some differences in the accounts which were provided by the various police officers. This was predictable given their different perspectives and roles, and the passage of time. I am satisfied, however, that each of these officers (and the nurse practitioner) gave their evidence honestly and candidly. Without engaging in a thorough review of all aspects of the testimony of each witness, I find the relevant facts to be as follows.

B. The Initial Complaint of Sexual Assault by KF

[9] The complainant KF met with TPS officers, Det. Hancock and Det. Campbell on May 24, 2012 at police headquarters, located on College Street in Toronto. At that time, KF provided a video recorded statement alleging that she had been sexually assaulted two days earlier on May 22, 2012.

[10] During this statement, KF explained that she had suffered some injuries in an incident with her boyfriend, which had caused her to go to the emergency department of the Toronto Western Hospital, located at Bathurst and Dundas Streets in Toronto, for treatment. KF indicated that she was attended to by a male, who took her into a room, where she was undressed, her injuries were photographed, and she was touched by this person. In her statement, KF described this male attendant as Filipino, approximately 30 years old, with a short and stocky build, and a red lanyard around his neck with a plastic identification tag that indicated that he was a registered nurse. KF said that this male attendant had pulled an iPhone from his pocket and photographed her injuries. When she questioned him about this, he assured her that he was a nurse at the hospital. The complainant explained that, at one point, the male attendant had her bend over and spread her buttocks. KF stated that the attendant also physically touched her and made inappropriate comments to her while she was undressed. She stated that, at one point, he flicked the nipples on her breasts. The complainant also indicated that, during their interaction, the male attendant spoke English poorly, but identified himself as “Gino” and asked her for her phone number. She provided it to him.

C. The Text Message Exchange – Between “Gino (Mobile”) and Det. Hancock

[11] The police concluded their interview of the complainant at approximately 8:30 p.m. The complainant then waited in the lobby while her friend, who had accompanied her to the hospital on May 22, 2012, similarly provided a statement to the police. When that process was completed, at approximately 10:35 p.m., the police met the complainant again in the lobby. At that point, KF advised them that she had received a text message on her Blackberry smart phone from the male nurse that she had encountered in the hospital two days earlier. This text message had arrived at 9:23 p.m., from “Gino (Mobile),” and stated: “I hope your abrasions are healing well – Gino from Toronto Western Hosp.”

[12] As Det. Hancock testified, by this point, she and her partner believed that the complainant had been sexually assaulted, and that there was evidence of this offence on the iPhone used by the male nurse. They wanted to locate and arrest this individual. They wanted to do that by using the complainant’s phone. The complainant expressly consented, in writing, to the police taking over her account and her online presence in relation to her BlackBerry. Thereafter, Det. Hancock took physical possession of the complainant’s BlackBerry and used it to exchange text messages with “Gino (Mobile)” as if she was the complainant. The complainant left the police station and went home.

[13] The text message exchange that subsequently took place between Det. Hancock and “Gino (Mobile)” over the next couple of hours is as follows:

Hancock: Hey still sore. I’m surprised you remembered me.

Gino: How can I forget… you were funny that night and super hot, lol!

Hancock: Thanks. I wasn’t at my best, like I freakin got thrown from a car.

Gino: maybe you need a professional massage to relieve those sore muscles?

Gino: I saw u talk with the cops… any updates?

Hancock: Oh they took a report and said that they were gonna talk to my ex…. whadda u doing like working or something

Gino: Yes… Im in front again at the western

Gino: how about you?

Hancock: Bet you see all kinds of weird things. I m just hanging out

Gino: Yes… preety much! I got lots of ER stories… weird n funny ones!

Hancock: I bet my story was pretty messed up

Gino: it was… but you survive to tell the tale!

Hancock: Phew I freakin darn near became roadkill wtf

Hancock: Chillin. What do you do after work?

Gino: yuo’re funny!!

Gino: we’ll hang some time

Hancock: Yeah maybe when I don’t feel like shit

Hancock: Hey you got anything stronger than this polysporin?

Gino: What like pain pills? Or just antibiotic ointments?

Hancock: What up

[14] While Det. Campbell was not personally involved in this text message exchange, he was next to his partner for most of the exchanges, and Det. Hancock kept him “in the loop” as to the contents of most of the messages.

[15] The first message from Det. Hancock was sent at approximately 11:15 p.m. Det. Hancock explained that she engaged in this text message exchange with Gino because she wanted to identify him and learn his location so she could arrest him for sexual assault. When Gino sent the message indicating that he was “in front again at the western,” Det. Hancock assumed this meant that Gino was working in the front reception area of the Toronto Western Hospital. When Gino indicated that he had “lots of ER stories,” Det. Hancock viewed that statement as confirmation that Gino was a nurse or employee of the hospital who worked in the emergency department, and was the same person who had sexually assaulted KF.

D. The Police Meeting Near the Hospital

[16] Upon learning that Gino was “in front again at the western” the police decided that they would attend at the Toronto Western Hospital in an effort to identify him and arrest him. At 11:38 p.m. Det. Campbell contacted the 14 Division station in order to get some other TPS officers to provide assistance in this regard. Det. Hollingshead and Det. MacInnes were assigned to this responsibility. Det. Campbell sent them a general occurrence (ecops) report to provide them with background information about the complainant’s allegations. Det. Hancock and Det. Campbell then left for the hospital. Indeed, Det. Hancock was in the police car when she sent the message “Yeah maybe when I don’t feel like shit.” The 14 Division officers also headed off to their arranged meeting place near the hospital.

[17] Det. Hancock and Det. Campbell met the two 14 Division officers in a business parking lot across the street from the hospital at 12:07 a.m., and Det. Campbell briefed them about the nature and progress of the investigation. This briefing lasted for approximately five minutes. With the assistance of his notes, Det. Campbell provided the 14 Division officers with the following description of the individual they were looking to arrest: Male, oriental (Filipino), approximately 30 years old, dark complexion, short black hair, wide nose, chubby cheeks, five feet five inches tall, approximately 140-150 pounds, short and stocky build, a hospital identification tag with a red ribbon or necklace, possibly wearing a blue shirt and hospital scrubs, and possibly in possession of a cell phone or iPhone with a military green backing. Det. Campbell explained that he got this information from the complainant KF shortly after she arrived at the police station. Det. Campbell advised the 14 Division officers that the complainant had indicated that this suspect had taken photos of her with this phone.

[18] At this point, their plan was that Det. Hancock would go into the hospital alone first, and see if the head nurse could identify Gino. Det. Hancock would then summon the other officers inside. As Det. Hancock explained, all four of the police officers were in “plain clothes” and they were going to try to keep their attendance “very low key and discreet.” The police officers recognized that this was the emergency department of the hospital, where other staff and patients might be present, and they wanted to be respectful of that environment.

E. Det. Hancock Entered the Emergency Department Looking For Gino

[19] Det. Hancock entered the emergency department of the Toronto Western Hospital through its Dundas Street entrance at approximately 12:14 a.m. Immediately inside this entrance is a large waiting area, in front of a series of smaller rooms designated for “triage” and “registration.” The triage and registration areas are physically right next to each other. When Det. Hancock entered the emergency department there was no one sitting at the triage or registration desks. Accordingly, she spoke to security personnel at the entrance and gained access to rest of the emergency department through a set of double doors.

[20] Det. Hancock then went to the nursing station and spoke to the head “charge nurse.” They spoke privately in a nearby resuscitation room, and Det. Hancock tried to learn whether there was anyone who matched the description of Gino that KF had provided. During this conversation, the charge nurse indicated that she had no staff named “Gino,” and while about half of her staff were Filipino, there were no Filipino males working the “front desk” that night. When Det. Hancock inquired about whether there were any Asian males working that night, the charge nurse said that there were two Chinese men working on the “other side” of the department that night, and she invited Det. Hancock to “wander around.”

[21] At that point, Det. Hancock contacted Det. Campbell, and told him (and the two 14 Division officers) to come inside the hospital to help her try to find Gino. Det. Hancock then began to walk around the emergency department of the hospital looking for someone matching the description of Gino provided by KF.

[22] When she walked back to the nursing station, Det. Hancock noticed that, at approximately 12:18 a.m., Gino had sent KF his final text message stating: “What like pain pills? Or just antibiotic ointments?” At that point it was 12:34 a.m., and Det. Hancock sent her final text message to Gino saying: “What up.” At that point, Det. Hancock was looking around the emergency department, from her vantage point at the nursing station, to see if there was anyone involved in a text message conversation. Det. Hancock then began to make her way back to the double doors, expecting to meet up with the other three police officers.

[23] As she proceeded, Det. Hancock continued to survey the emergency department area and noticed, at a small nursing station, the two Chinese males that the charge nurse had mentioned earlier. However, they were both younger, approximately 20 years old, did not match the physical description of Gino provided by KF, and they were not using any phones.

F. The Other Officers Entered the Hospital – Observed the Accused at the Triage Desk

[24] When summoned by Det. Hancock, the other three police officers entered the emergency department of the hospital through the same Dundas Street entrance. As soon as they entered the waiting room area, all three of the officers saw the accused sitting at the closest triage desk. The accused was seated at this metal triage desk alone. The officers did not notice anyone else in the vicinity.

[25] According to Det. MacInnis, when they entered the emergency department of the hospital, he was thinking of the description of the man they were looking for and, in the triage area that was directly in front of him, he recognized someone who could be that person. This person “caught [his] attention” as he seemed to match the physical characteristics of the description, and was wearing an ID card on a red lanyard around his neck, except that this man was wearing a black t-shirt and thick, dark-framed glasses, and had a slight goatee on his chin. The officer “took note” of this individual, as he thought this man was possibly the person they were looking for. Det. MacInnis saw no one else in this area. This male was aware of the three officers in the waiting area, as he was staring back at them.

[26] According to Det. Hollingshead, as soon as they entered the emergency department of the hospital, he noticed a male “fitting the description” of the suspect that had been provided, sitting at a desk in the triage area. Det. Hollingshead noted, more specifically, that this male at the triage desk was Filipino, five feet, five inches tall, with a muscular build, and wearing a black t-shirt, blue scrub pants, a red necklace with his hospital identification card, and glasses. Det. Hollingshead testified that he thought that he was the suspect they were looking for as he “matched” the physical description provided. He thought that this male was a “good suspect” and, if this had been his investigation, he would have started talking to him immediately. However, he did not immediately suggest to the other officers that “this is the guy” that they were looking for.

[27] Initially, when Det. Campbell first glanced over at the accused, he did not “take note” of him. He did not immediately conclude that the accused was the person they were looking for or think that he needed to arrest him immediately. Det. Campbell explained that Det. Hancock had told him, when she summoned him into the hospital, that she had been advised there were no male Filipino nurses working that night. He had therefore assumed that the suspect they were looking for was not in the hospital that night. It was only shortly thereafter that Det. Campbell realized that the accused “matched” the physical description of Gino that had been provided by KF “almost exactly” on “all points.”

[28] According to Det. Campbell, he may have flashed his police identification credentials to the accused (that would have been his usual practice), and the accused may have risen from the desk and waved the officers towards the double doors, but he was not certain as to the details of these events. Det. Hollingshead specifically recalled, however, that the accused asked him and Det. MacInnis who they were looking for, and one of them responded that they were looking for “another police officer.” In any event, the three police officers and the accused all headed towards the double doors – the police officers through the waiting room area, and the accused through the triage/registration area.

G. The Initial Interaction Between Det. Hancock and the Accused

[29] As Det. Hancock approached the double doors from the interior of the emergency department, she saw a male approaching from the front triage/reception area of the emergency department. He fit the physical description of Gino that KF provided. When they came face-to-face, Det. Hancock noticed that he was wearing a red lanyard around his neck with a plastic photo identification card that said “Angelino Aguas Registered Nurse.” Det. Hancock identified herself as a police officer and asked him his name, and the accused said “Angelino.” Det. Hancock then said “Gino,” but the accused did not respond, but just continued to look at her. Nevertheless, Det. Hancock believed that the accused was the male nurse that KF had described in her statement to the police, and at that point she decided that he would be arrested.

[30] At that point, Det. Campbell and the two 14 Division officers came through the double doors, and joined Det. Hancock and the accused. Everyone stood together as a group in close proximity to one another. At that point, Det. Hancock introduced the other officers to the accused, pointing at the accused and saying “that’s Angelino” or “that’s Gino.” Det. Campbell testified that he thought that there was a logical connection between the name of the accused (Angelino) and the name of the person they were looking for (Gino), especially given the way Det. Hancock introduced the accused.

[31] Det. Hancock asked the other officers to take the accused further back into the registration area, where they could speak privately to him. She did not direct the other officers to arrest him, but she assumed that, as they had discussed earlier, Gino would be arrested for sexual assault and taken back to 14 Division along with his cell phone. She thought that the arrest would take place at the appropriate time and would be undertaken quietly and discreetly, so as not to cause a big scene or commotion amongst the hospital staff or patients. Det. Hancock confirmed, however, that the accused was not free to leave.

[32] Det. Hancock explained that while she did not see the accused with a cell phone, she wanted to secure the accused’s cell phone as she believed that the evidence of the text messages and the photographs of KF would be on that cell phone, and she was concerned that if his cell phone was not obtained at that point there was a possibility that this evidence would be destroyed. Det. Hancock was not involved, however, in the arrest of the accused or any efforts to secure his cell phone.

[33] Det. Hancock then left the group, and went back to the nursing station to talk to the charge nurse again. She had no further conversation with the accused and was not involved in effecting his arrest. When she returned to the nursing station, Det. Hancock told the charge nurse that they had “found him” and that he would be arrested. The charge nurse then accompanied Det. Hancock back to the accused, in the registration area of the emergency department, identified him as a registered nurse in the hospital, and spoke with him briefly.

H. The Arrest of the Accused – Seizing the Accused’s iPhone

[34] Det. Campbell testified that, at that point, he was satisfied that the accused was, in fact, the individual described by KF that they had been looking for, and that he had the necessary reasonable grounds to arrest the accused. Accordingly, after identifying himself to the accused, Det. Campbell asked to speak to the accused in private. He agreed, however, that this request was more of a direction to the accused than a question. Det. Campbell explained that this was his “standard practice.” Det. Campbell explained that he wanted to maintain a level of professionalism in the hospital, and provide a measure of dignity for the accused. He did not think the circumstances required any “big scene” or “big take down” production in the arrest of the accused that would only embarrass him in front of his co-workers. Privacy would also prevent any potential interference from others. Det. Campbell further explained that he was going to arrest the accused, obtain his identification details, secure any evidence that they gathered, and remove the accused from the hospital, transporting him to the 14 Division station.

[35] Once the accused, Det. Campbell and the two 14 Division officers had moved further into the hospital registration area to obtain this further level of privacy, Det. Campbell spoke to the accused. This conversation took place at approximately 12:32 a.m. The two 14 Division officers were standing with Det. Campbell during this conversation. Det. Campbell generally explained the allegation of sexual assault that had been made against him by KF, and told the accused that he had been identified as the suspect, and he was going to be arrested and would be leaving the hospital with the police. The accused denied that he had sexually assaulted anyone.

[36] Det. MacInnis believed that, at that point, the accused was effectively under arrest. He was certainly detained, and was not at liberty to leave. He was eventually going to be escorted back to the 14 Division station by the police.

[37] Det. Campbell then asked the accused the location of his phone, and the accused said: “I had it with me.” When Det. Campbell inquired “where,” the accused asked: “Why do you need it?” Det. Campbell then explained: “I am going to keep this very private, and give you dignity and privacy. You are coming with us. I am going to seize your phone.” Det. Campbell then asked the accused again, “Where is your phone.” The accused replied: “It’s at my desk.” Det. Campbell testified that he could not recall whether or not the accused had motioned toward the triage desk where he had been sitting earlier but, in his notes, Det. Campbell had written in brackets “where male was sitting upon our initial arrival.” Det. Campbell indicated that, from where they were standing together, he could see that same triage desk just a short distance away.

[38] At that point, Det. Hollingshead walked over to the grey metal triage desk where the accused had been sitting when the three officers had entered the emergency department of the hospital. This desk was no more than 20 feet away. There was no phone on top of that triage desk, or in the drawers on the sides of the desk, but the officer did ultimately discover and seize a black iPhone from the thin centre drawer of the desk. It was the only phone the officer found in the triage desk. The iPhone was off at the time, and the officer used a glove to retrieve it from the triage desk. Det. Hollingshead turned the iPhone over to Det. Campbell at 12:35 a.m. The iPhone was not turned on at the time it was discovered and seized, and it was not activated or examined by either officer who had custody of the phone.

[39] Det. Campbell explained that he wanted to secure the accused’s iPhone as he believed that it had been used in the commission of an offence, and he wanted to “maintain the evidence” located on the iPhone. He thought that the iPhone would reveal photographs of the complainant KF, and would show that the accused also sent text messages to KF. These things would be important evidence in the case. Det. Campbell further explained that the iPhone had been in the possession of the accused as he had been using it earlier in the evening, so it had to be “pretty close by,” and he had been sitting at that desk just moments before their interaction. Accordingly, Det. Campbell wanted to seize the iPhone to maintain the continuity of the evidence, so that a proper examination of the iPhone could take place once a search warrant had been obtained. Det. Campbell testified that he did not want the accused to be able to destroy the evidence that he believed was on the iPhone. He explained that he knew there was “all kinds of weird things people can do to destroy data” on their cell phones.

[40] Det. Campbell agreed that, prior to speaking to the accused privately (and seizing his iPhone), the accused had not been advised of his rights to counsel, had not been told of his right to remain silent, and had not been cautioned in any way about the making of any statements to the police and the potential admissibility of such statements. Det. Campbell also agreed that, at that point, the accused had not been personally searched, even though the accused might have had his iPhone somewhere on his person.

I. The Accused Retrieved His Wallet From his Locker

[41] After the cell phone discussion between Det. Campbell and the accused, Det. MacInnis asked the accused for further identification. Det. MacInnis had looked at the identification card attached to the red lanyard that the accused was wearing, and saw that the photograph on the card matched the accused, and that the name on the card was “Angelino Aguas” of the Toronto Western Hospital. Det. MacInnis thought that the name was of Spanish origin, and believing that Spanish individuals often have “different permutations” of their last name, he wanted to ascertain the accused’s proper full name. Accordingly, Det. MacInnis asked the accused if he had any other identification. The accused replied that there was some additional identification in his wallet.

[42] Det. Campbell, Det. MacInnis and Det. Hollingsworth then accompanied the accused to his locker in the staff locker room, and permitted him to obtain his wallet. Det. MacInnis knew that the accused would need his identification documents in order to secure his release from custody. This visit to the locker room took place at 12:38 a.m. When the accused opened his locked locker, Det. Campbell did not see any other cell phones or photo-identification cards inside the locker, or anything else of any concern to him. Det. Campbell explained that, if he had seen another phone in the locker, he would have sealed the locker and tried to obtain a search warrant. The accused retrieved his wallet from a knapsack located within the locker, and passed the wallet to Det. MacInnis.

J. Accused Was Advised of His Right to Counsel – Taken to the 14 Division Station

[43] At approximately 12:40 a.m., after the accused was permitted to retrieve his wallet, Det. Campbell directed the two 14 Division officers to formally arrest the accused, place him in handcuffs, advise him of his rights to counsel and transport him back to the station.

[44] Det. Campbell indicated that he and Det. Hancock would meet up with them back at the 14 Division station. Det. Campbell explained that he understood that anyone placed under arrest had to be advised of the reason for their arrest, provided with their rights to counsel, and given access to counsel, but he thought that there was no reason to make a “big scene” about effecting the arrest in the hospital area.

[45] Det. MacInnis and Det. Hollingshead then escorted the accused out to their unmarked police car for transport back to 14 Division. Det. MacInnis conducted a brief pat down search, put handcuffs on the accused, and then placed the accused in the back seat of the vehicle. They all left for the 14 Division station at 12:42 a.m. Det. Hollingshead was driving and Det. MacInnis was in the back seat with the accused.

[46] On their way back to the police station, Det. MacInnis took out his Memo Book and read to him verbatim the details of his right to counsel as guaranteed by s. 10(b) of the Charter. As Det. MacInnis explained, he knew that the accused had not yet been advised of his rights to counsel, and he wanted to fulfill his important obligations in this regard. When this was completed, the accused acknowledged his understanding of his rights to counsel. When Det. MacInnis asked the accused if he wanted to contact a lawyer, the accused said he did not have a lawyer. When the officer asked him if he wanted to speak to duty counsel, a free lawyer, over the phone, the accused said “yes, please.”

[47] Det. MacInnis then fully cautioned the accused, again relying on the contents of his Memo Book, advising him that he would be charged with “sexual assault,” asking him if he wished to say anything in answer to the charge, and advising him that he was not obliged to say anything in answer to the charge, but that whatever he did say might given in evidence. The accused acknowledged his understanding of that caution, and he exercised his right to remain silent. Det. MacInnis then provided the accused with the standard “secondary caution,” again with the assistance of his Memo Book. In essence, Det. MacInnis advised the accused that, if he had already spoken to a person in authority, that should not influence him in the making of any further statement. The accused acknowledged his understanding of the secondary caution.

[48] Det. MacInnis explained that, as they travelled together back to the 14 Division station, he was very cautious not to ask the accused any questions about the alleged offence, as he did not want to interfere with the process, and he realized that once an accused had expressed their desire to speak to a lawyer, the police were bound to hold off in their questioning of the accused until they had exercised their right to speak to counsel.

[49] They arrived at the 14 Division station at 12:47 a.m., so it was only a five minute long journey from the hospital to the police station. Det. MacInnis and Det. Hollingshead then paraded the accused before the booking Sergeant at the station. The booking Sergeant was advised of the reasons for the accused’s arrest, that the accused had been advised of his rights and that the accused wanted to speak with duty counsel. Once the accused went through the booking process, and was searched, he was secured in an interview room and his handcuffs were removed.

K. Access to Counsel for the Accused at the Police Station

[50] Det. MacInnis then located Det. Hancock and Det. Campbell and updated them as to what had taken place since they had left the hospital. More particularly, Det. MacInnis indicated to them that the accused had been advised of his rights to counsel, and had been cautioned, and that the accused wanted to speak to duty counsel.

[51] Det. Campbell then assisted the accused in placing a number of phone calls on his behalf. More particularly, he assisted the accused in contacting his wife, and in placing calls to duty counsel. At 1:57 a.m., when duty counsel returned the earlier calls placed by Det. Campbell, the accused was permitted to speak privately with duty counsel. Subsequently, Det. Campbell interviewed the accused for approximately 40 minutes.

L. Drafting the Information to Obtain the Search Warrant for the iPhone

[52] Sometime after the arrest of the accused and the seizure of his iPhone, Det. Campbell began to work on the preparation of an ITO for judicial authorization to search the contents of the accused’s iPhone. The ITO was finally completed and sworn on June 8, 2012. Based upon this ITO, a search warrant was issued permitting an examination of the accused’s iPhone.

[53] As I have indicated, this examination of the accused’s iPhone revealed a series of 17 photographs of KF in various stages of undress, with a predominant focus on her breasts, buttocks and vaginal area. The accused’s iPhone also contained an audio-video recording, approximately 28 seconds long, of a very similar nature. The accused’s iPhone also contained the text message exchange between the accused and KF, and between the accused and the police (after KF had given the police permission to adopt her online presence by using her cell phone). The accused’s iPhone also had one photograph of another female, CBL, asleep or unconscious, with her left breast exposed.

III

Analysis

A. The Lawful Arrest of the Accused

1. Introduction

[54] The accused contends that his arrest by the police was in violation of ss. 8 and 9 of the Charter because the police lacked the necessary reasonable and probable grounds to justify his arrest. The accused argues that, because his arrest was unlawful, the police were not entitled to conduct any search incident to that unlawful arrest. Accordingly, in seeking to justify the police seizure of the accused’s iPhone, the Crown cannot rely upon the warrantless search power of search incident to arrest. I disagree. In my view, the arrest of the accused was neither unlawful nor in violation of the Charter, but rather was based upon reasonable and probable grounds to believe that the accused had sexually assaulted KF.

2. Reasonable Grounds – The Legal Standard

[55] According to s. 495(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, a peace officer may arrest without warrant a person who has committed an indictable offence or who, “on reasonable grounds,” he believes has committed or is about to commit an indictable offence. The statutory requirement of “reasonable grounds” means that: (1) the police officer effecting the arrest must subjectively believe that he or she has reasonable and probable grounds to arrest the accused; and (2) this belief must be objectively reasonable, in the sense that a reasonable person in the position of the officer must be able to conclude that there were, indeed, reasonable and probable grounds for the arrest. See R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 249-251; R. v. Hall (1995), 1995 CanLII 647 (ON CA), 22 O.R. (3d) 289 (C.A.), at pp. 298-299; R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont.C.A.), at para. 20, leave denied, [1997] S.C.C.A. No. 571; R. v. Muller, 2014 ONCA 780, 122 O.R. (3d) 721, at para. 36; R. v. Amare, 2014 ONSC 4119, at para. 83.

[56] Recently, in R. v. Grant and Campbell, 2015 ONSC 1646, at para. 92, I outlined the following principles surrounding the practical application of the objective branch of this legal standard:

• Proof of reasonable and probable grounds does not require proof of the commission of the alleged offence beyond a reasonable doubt, or even anything like the establishment of a prima facie case against the accused. See R. v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 (Ont.C.A.), at p. 219, affirmed, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140; R. v. Storrey, at pp. 249-251; Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.), at p. 329; Illinois v. Gates, 462 U.S. 213 (1983), at p. 235.

• Proof of reasonable and probable grounds does not require proof of the commission of the offence on the civil standard of the balance of probabilities or on the basis of a 51% probability. See R. v. Hall, at p. 298; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270, 37 C.R. (6th) 320 (Ont.C.A.), at para. 22; R. v. Loewen, 2010 ABCA 255, 260 C.C.C. (3d) 296, at para. 18, affirmed, 2011 SCC 21, [2011] 2 S.C.R. 167; R. v. Spence, 2011 BCCA 280, at para. 31; United States v. Garcia, 179 F.3d 265 (C.A., 5th Cir., 1999), at p. 269.

• In considering whether or not the arresting officer was objectively possessed of the necessary reasonable and probable grounds, the court must take into account all of the circumstances known by the arresting officer, and appreciate that a trained and seasoned police officer is entitled to draw inferences and make deductions drawing on his or her years of experience. See R. v. Rajaratnam, 2006 ABCA 333, 214 C.C.C. (3d) 547, at para. 25; R. v. Juan, 2007 BCCA 351, 222 C.C.C. (3d) 289, at paras. 17-20, 27-28; R. v. Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127, at para. 61; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 48; R. v. Muller, at para. 37; R. v. Biccum, 2012 ABCA 80, at para. 21.

• The threshold of reasonable and probable grounds demands more than establishing merely a reasonable suspicion of the commission of the offence. See R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 85.

• The standard of reasonable and probable grounds is used to define the point at which the state’s interest in detecting and preventing crime begins to prevail over the individual’s liberty interest in being left alone, namely, at the point where credibly-based probability replaces suspicion. In short, the threshold requires that there must be a “reasonable probability.” See Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 167-168; R. v. Debot, at p. 1166; Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416, at pp. 446-447.

• Beyond these principles, it may not be possible to more precisely define the nature of the standard of reasonable and probable grounds, or affix specific mathematical percentages, as it is a commonsense threshold designed to provide a practical and non-technical standard based on probabilities, and which permits consideration of the totality of circumstances in each individual case. See R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at paras. 52-54, affirmed, 2011 SCC 32, [2011] 2 S.C.R. 549; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 29, 62, 69; R. v. MacKenzie, at para. 71; R. v. Ward, 2012 ONCA 660, at para. 116; Illinois v. Gates, at pp. 238, 244; Ornelas v. United States, 517 U.S. 690 (1996), at pp. 695-696; Maryland v. Pringle, 540 U.S. 366 (2003), at p. 371; Safford Unified School District v. Redding, 129 S.Ct. 2633 (2009); Florida v. Harris, 133 S.Ct. 1050 (2013), at p. 1055.

3. Subjective Belief in Reasonable Grounds

[57] As a matter of fact, I find that all four of the police officers who were involved in the arrest of the accused subjectively believed that they possessed the necessary reasonable and probable grounds to arrest the accused for the indictable offence of having sexually assaulted KF. I accept their viva voce testimony which was to this effect. Indeed, the accused did not suggest otherwise. The real issue is whether this subjective belief was objectively reasonable.

4. Objectively Viewed – There Were Reasonable and Probable Grounds

[58] In the circumstances of the present case, the application of these governing principles has caused me to conclude that, in addition to honestly subjectively believing that they possessed the necessary reasonable and probable grounds to arrest the accused, this subjective belief was objectively reasonable. In other words, a reasonable person in the position of the arresting officers would have concluded that there were, indeed, reasonable and probable grounds justifying the arrest of the accused. I have reached that conclusion having regard to all of the circumstances, but particularly having regard to the following considerations.

[59] First, earlier that evening the complainant KF had provided the police with a detailed video recorded statement outlining how she had been sexually assaulted two days earlier by a male nurse in the emergency department at the Toronto Western Hospital. In this statement KF explained how the nurse had identified himself to her as Gino, and had assured her that he was a nurse at the hospital. Further, the complainant provided a detailed physical description of the nurse that had sexually assaulted her.

[60] Second, after providing that statement to the police, the complainant began to receive text messages from that same male nurse. These text messages indicated that they had been sent from “Gino (Mobile),” and they expressly referred to the complainant’s attendance at the hospital two days earlier. The content of these messages confirmed that Gino worked regularly in the emergency department of the hospital, as he said that he had “lots of ER stories.” In this exchange of text messages, Gino also confirmed that he was working in the emergency department of the hospital again that night as he indicated that he was “in front again at the western” that night.

[61] Third, when the police arrived at the emergency department of the hospital shortly thereafter, the accused was seen (by three of the officers) sitting at the triage desk in the emergency department. Moreover, all four of the officers who attended the hospital that night concluded that the accused matched the physical description of Gino that had been provided by the complainant. Having seen the accused in court, it appears to me that, indeed, the accused matches that description.

[62] Fourth, the accused was wearing the red lanyard around his neck that had been described by the complainant. This lanyard does not appear to be hospital-issue, as it does not display the name of the hospital, but rather repetitively displays the Nike motto “Just Do It” at various locations around the lanyard.

[63] Fifth, as some of the police officers explained, the name “Gino” is very similar to the full first name of the accused “Angelino,” and would appear to simply be a shortened derivation of that full first name. The fact that the accused did not respond, one way or the other, when Det. Hancock called him “Gino,” does not serve to entirely undermine this apparent connection between the accused and the “Gino” they were looking for, and who had been communicating through text messages with the complainant KF.

[64] In the result, as the police had reasonable and probable grounds to believe that the accused had committed the indictable offence of sexual assault against KF, they were lawfully entitled to arrest him without a warrant pursuant to their statutory powers granted by s. 495(1)(a) of the Criminal Code. Accordingly, the arrest of the accused was not in violation of s. 8 of the Charter in the circumstances of the present case.

[65] In reaching this conclusion, I have considered the aspects of the evidence relied upon by defence counsel in his argument as to why there were no objectively reasonable grounds justifying the arrest of the accused.

[66] As defence counsel observed, the physical description of Gino that was provided by the complainant was somewhat “generic” in that it might accurately describe many Asian/Filipino men, and the “scrubs” that the complainant described Gino wearing would likely be worn by any working nurse in the hospital. Further, it is possible that red “Just Do It” lanyards were issued to all hospital employees. But these aspects of the evidence also pointed to the accused as the perpetrator of the sexual assault of KF, as they fit her description of Gino. Moreover, they were just some of the circumstances that led the police to arrest the accused. In my view, when all aspects of the evidence are properly taken into account, and viewed cumulatively, the police had the necessary reasonable and probable grounds to arrest the accused.

[67] Defence counsel noted that the complainant did not include any reference to eyeglasses in her description of Gino, but that the accused was wearing eyeglasses on the night he was arrested. This fact does not, however, undermine the existence of the necessary reasonable and probable grounds in the circumstances of this case. Obviously, eyeglasses can be placed on and off quickly and easily depending upon a host of variable circumstances, including the particular vision deficiency of their wearer, the corrective prescription of the eyeglasses, and the changing vision needs of the individual in the circumstances. Accordingly, Gino may well have possessed corrective eyeglasses on May 20, 2012, but may not have needed to wear those glasses in his interactions with the complainant. For example, if Gino was nearsighted, permitting him to clearly see objects up close but not those at a distance, wearing corrective eyeglasses in his interactions with the complainant might actually have impaired his vision in his close physical examination of the complainant and in his operation of his iPhone.

[68] Defence counsel also noted that the complainant, in her interview with the police, did not mention any type of “goatee” style beard growth on Gino, while the accused appeared to have some small beard growth on that area of his face when he was arrested by the police. This does not undercut the existence of reasonable and probable grounds to arrest the accused in the circumstances of this case. To state the obvious, the beards of adult men grow. Some beards grow quickly. Others grow more slowly. The fact that the complainant did not notice, on May 22, 2012, the same degree of beard stubble on Gino as the police observed on the accused two days later, in my view, does not render the arrest of the accused unlawful.

B. The Violation of s. 10(b) of the Charter of Rights

[69] The accused argues that his constitutional rights, guaranteed by s. 10(b) of the Charter, were violated by virtue of the fact that, upon his arrest, he was not advised of his right to counsel. I agree. Indeed, the Crown fairly conceded this point. The accused was, effectively, under detention and arrest almost from his very first contact with Det. Hancock in the emergency department of the Toronto Western Hospital on May 24, 2012.

[70] In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2, 37-42, the Supreme Court of Canada held that the “right to counsel” duties that are imposed upon the police by s. 10(b) of the Charter are triggered immediately upon an arrest or detention. The court held that the phrase “without delay” in s. 10(b) means “immediately.” As a result, upon any detention or arrest, the informational duty and implementation obligation cast upon the police must be immediately executed. This is so, as the court in Suberu explained, because concerns over compelled self-incrimination and interferences with individual liberty are triggered as soon as a citizen is detained or arrested, and citizens must accordingly be protected. The Supreme Court held, at para. 42, that the immediacy of the obligation cast upon the police is subject only to “concerns for officer or public safety,” or reasonable limits that are prescribed by law and justified under s. 1 of the Charter. See also R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, at pp. 641-642; R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at pp. 152-153; R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714, at p. 728; R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, at p. 166; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173; R. v. Mihm, 2014 ONSC 5349, at para. 45; R. v. Grant and Campbell, at paras. 103-106.

[71] In the present case, however, following his detention and/or de facto arrest, the accused was not immediately advised of his right to counsel. He was advised generally of the reasons for his detention and arrest, namely, the allegation of sexual assault that had been made against him by KF, but he was not advised of his right to counsel. Instead, Det. Campbell pursued his investigation and questioned the accused about the whereabouts of his phone, elicited his utterance about the location of his phone, and located and seized his iPhone. Further, at the time the accused was detained and/or subjected to a de facto arrest, there were no pre-eminent concerns for officer or public safety that might have somehow justified any delay in the police providing the accused with his rights to counsel.

[72] As Det. MacInnis candidly testified, once the accused was effectively under arrest, he could have been advised of his rights to counsel immediately. While Det. MacInnis explained that their concern was not to embarrass Mr. Aguas at work, he agreed that, as the accused had already had been detained and arrested, it would not have been any more embarrassing for the police to have also read him his rights to counsel at that time. Det. MacInnis also agreed that the accused was being compliant and cooperative, and was doing nothing that might have justified a delay in providing the accused with his right to counsel. He agreed that the police had no specific safety concerns regarding the accused.

[73] Accordingly, by failing to provide the accused with his right to counsel immediately upon his detention or arrest, the police clearly violated s. 10(b) of the Charter. I will address the gravity of that Charter breach when considering the admissibility of the iPhone evidence under s. 24(2) of the Charter.

C. The Challenge to the Search Warrant

1. Introduction

[74] As I have indicated, after the police discovered and seized the accused’s iPhone, Det. Campbell prepared an ITO for a search warrant to examine its contents. This warrant was granted. The accused contends that the police obtained this search warrant in violation of s. 8 of the Charter as the contents of the ITO were deficient, misleading and inaccurate. The accused asks that the search warrant be quashed. For the following reasons, I reject this submission.

2. The Governing Standard of Review

[75] When a trial judge is asked to review the sufficiency of an ITO used to obtain a search warrant, the judge must not approach the question of the issuance of the search warrant de novo, substituting his or her view for that of the issuing justice. Rather, the reviewing judge must determine, based on the record that was before the issuing justice, as amplified and/or edited on the review, whether the issuing justice could properly have issued the search warrant. The question is not whether the reviewing judge would have issued the search warrant, but whether there was sufficient information that could have permitted the authorizing justice to conclude that there were “reasonable grounds” justifying the issuance of the search warrant. See R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452; R. v. Bisson, 1994 CanLII 46 (SCC), [1994] 3 S.C.R. 1097, at p. 1098; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 19, 36, 40, 50-61; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8, 30; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20, leave denied, [2010] 1 S.C.R. ix; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 39-43; R. v. Sadikov, 2014 ONCA 72, 314 O.A.C. 357, at paras. 37-38, 83, 88; R. v. Eftekhari, 2012 ONSC 5140, 266 C.R.R. (2d) 213, at para. 3; R. v. Daniels, 2015 ONSC 283, at para. 7.

[76] The conduct of the police is clearly relevant to this question. However, as the Court of Appeal for Ontario has emphasized, this review is “not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application.” See R. v. Nguyen, 2011 ONCA 465, at para. 57; R. v. Spearman, 2015 ONCA 119, at para. 1.

[77] In R. v. Boussoulas, 2014 ONSC 5542, at paras. 5-22, I outlined more fully the legal principles governing applications to quash search warrants. Without repeating those principles again, I will seek to apply them in the factual circumstances of the present case.

3. Analysis of the ITO in the Present Case

[78] The appendix to the ITO that outlined the grounds for Det. Campbell’s stated belief that the accused’s iPhone, which had been securely stored in a police locker following its seizure, would provide evidence of sexual assaults by the accused on KF and STED, was seven pages long. It introduced the various police officers who were involved in the investigation, and outlined the details of the allegations that had been made by KF about how she had been photographed and sexually assaulted in the Toronto Western Hospital. As to the details of the subsequent police investigation, the ITO stated:

• At approximately 9:50 p.m., police met with the victim and the witness. [KF] advised the police that she had just received the following text message: “Hope your abrasions are healing well, Gino from Toronto Western Hospital.”

• Police obtained consent from [KF] and temporarily seized her cell phone. Police replied to the text message and engaged in a text style conversation.

• At one point during the conversation, “Gino” advised: “Im in front again at the western.”

• Police attended the Toronto Western Hospital and located the accused. He was sitting [at] a check in desk at the emergency department. He was arrested. His cell phone was located at the desk and seized by D/C Hollingshead.

[79] The appendix also outlined the details of the sexual assault allegations that were made by STED, who came forward a few days after a TPS media release regarding the accused, which included his name and photograph, was published in a Toronto newspaper.

[80] As part of the grounds to believe that the offences had been committed, the appendix indicated that the “police arrested the accused in proximity possession of the cell phone he used to contact [KF] post-offence,” and that during an interview with the police the accused “admitted that the phone was his.” The appendix also included the following statements as part of the grounds to believe that the accused’s iPhone would afford evidence of the alleged offences:

• The cell phone/seized item was located in a desk the accused was sitting at upon police arrival. The accused also admitted during an interview to having possession of the phone.

• During the initial stages of the police investigation, the accused provided a name to the victim of Gino, which police believe is an alias and variation of his given name of Angelino.

• During the initial stages of the police investigation, police were able to correspond with the accused using the victim’s cell phone. During the correspondence, the accused admitted to having been in previous contact with the victim. He inquired about her abrasions. He also told her: “Im in front again at the western.”

[81] The accused complains that these statements in the ITO simply did not provide the justice with the complete and accurate picture of the details of the police investigation in this case. Instead, the ITO provided the justice with only the “highlights” of a “condensed” investigation.

[82] For example, the accused complains that the ITO did not advise the justice: (1) that the charge nurse told Det. Hancock that about half of her staff were Filipino, but that there was no one working in the emergency department named “Gino;” (2) that Det. Campbell did not initially recognize the accused as “Gino” when he first saw him seated at the triage desk in the emergency department of the hospital; (3) that the accused did not respond to being called “Gino” by Det. Hancock; (4) of any of the differences between the appearance of the accused and the description of Gino provided by KF, such as the accused’s eyeglasses and beard growth; (5) that the black iPhone seized by the police did not have any “military” or camouflage green back as described by KF; and (6) that the police only seized the iPhone as a result of information they obtained from the accused, in violation of his Charter rights, and did not know the location of his iPhone prior to that point in the investigation.

[83] The accused also complains that aspects of the ITO are actually inaccurate and misleading. For example, the ITO stated that the accused was seated at a “check in” desk in the emergency department, when he was, in fact, seated at a triage desk in the emergency department.

[84] It is fair to observe that the ITO drafted by Det. Campbell does not provide as many details of the police investigation as might have been provided. Of course, an affiant is obliged, when drafting an ITO in connection with an ex parte search warrant application, to make full, fair, and frank disclosure of all material facts, regardless of whether they implicate the target of the investigation or not. At the same time, however, an ITO need not include every minute detail of the police investigation and, ideally, should be clear and concise as well and full and frank. See R. v. Araujo, at para. 46; R. v. Morelli, at paras. 44, 49, 58; R. v. Daniels, at paras. 54-55, 67.

[85] In the final analysis, I am not convinced that Det. Campbell failed to include any “material facts” of any consequence. While the additional details of the investigation, noted by the accused, might have been included in the ITO, in my view, there were no material facts that were omitted from the ITO. Nor am I satisfied that the justice was misled by any allegedly inaccurate factual assertions in the ITO. Rather, in my view the ITO in the present case was both accurate and concise. In this regard it is important to keep in mind that it was not inaccurate or misleading for Det. Campbell to state in the ITO: (1) that the accused was sitting at a desk in the emergency department when the police arrived at the hospital; (2) that Gino had told the police (believing Det. Hancock was KF) that he was working “in front again” at the Toronto Western Hospital that night; (3) that the accused was arrested by the police; (4) that an iPhone was located and seized by the police from the desk where the accused had been seated; (5) that the arrest of the accused took place in physical proximity to the accused’s earlier possession of the iPhone, which he had used that night to contact the complainant; and (6) that the accused “admitted that the phone was his.” As Det. Campbell did not believe that there had been any violation of the accused’s Charter rights, it is perhaps not surprising that there was no concession to that effect in the ITO.

[86] Finally, I am satisfied that there was sufficient information provided in the ITO that could have permitted the authorizing justice to conclude that there were “reasonable grounds” justifying the issuance of the search warrant. Indeed, in my view the issuance of the search warrant was inevitable in all of the circumstances of this case.

D. Should the Evidence be Admitted or Excluded Under s. 24(2) of the Charter?

1. Introduction

[87] As the police seized the accused’s iPhone after violating the constitutional rights of the accused guaranteed by s. 10(b) of the Charter, the next step of the analysis is to determine the admissibility of the evidence gained from the iPhone under s. 24(2) of the Charter. See R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235. The burden of proof, of course, is on the accused to establish, on the balance of probabilities, that the admission of the tendered evidence from the iPhone would bring the administration of justice into disrepute. See R. v. Bartle, at pp. 209-213; R. v. Harper, 1994 CanLII 68 (SCC), [1994] 3 S.C.R. 343, at pp. 353-354; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 89.

[88] According to the leading Supreme Court of Canada decisions in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, there is a three-pronged test that must be applied. The court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to the following factors: (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 court must consider all of the circumstances of the case in conducting this balancing assessment. See also R. v. Morelli, at paras. 98-113; R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248, at paras. 5-8; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 45-48; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 80-98; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at paras. 45-52; R. v. Spencer, 2014 SCC 43, 312 C.C.C. (3d) 215, at paras. 75-81; R. v. Taylor, 2014 SCC 50, 311 C.C.C. (3d) 285, at paras. 37-42; R. v. Mian, 2014 SCC 54, 13 C.R. (7th) 1, at paras. 78-89.

2. The Seriousness of the State Conduct

a. The Applicable Legal Principles

[89] With respect to the first prong of the test, namely, the seriousness of the state conduct, the court must consider whether the admission of the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct is leading to the Charter violation, the greater the need for courts to dissociate themselves from that misconduct by excluding the evidence. The goal is not to punish the police or deter Charter breaches, but to preserve public confidence in the rule of law and its processes. See: R. v. Grant, at paras. 72-75.

[90] Accordingly, inadvertent or minor violations of the Charter are at one end of the spectrum of conduct, while wilful or reckless disregard of Charter rights is at the other. Extenuating circumstances, such as the need to prevent the disappearance of evidence, may mitigate the seriousness of police misconduct. Good faith will also reduce the need for the court to disassociate itself from the police conduct, but negligence or wilful blindness by the police cannot properly be viewed as good faith. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence. In addition, if the Charter-infringing police misconduct was part of a pattern of abuse, such conduct would support the exclusion of the evidence. See R. v. Grant, at paras. 74-75; R. v. Boussoulas, at paras. 157-158; R. v. Daniels, at paras. 33-35.

[91] Even where the breach of the accused’s Charter rights is not the result of any “wilful disregard” for those rights, if the Charter violation constitutes a significant departure from the standard of conduct expected of police officers, such conduct cannot be condoned by the courts, and this aspect of the inquiry will lean in favour of the exclusion of the evidence. See R. v. Taylor, at para. 39.

b. The Seriousness of the Police Violation of Section 10(b) of the Charter in this Case

[92] There is no question that the violation of the accused’s right to counsel in this case was serious. In the factual circumstances of this case, the accused was entitled to be provided with his right to counsel immediately upon his arrest. Instead, the accused was questioned by Det. Campbell until he told the police officers where he had left his iPhone. This permitted the police to quickly find and seize evidence that, when ultimately examined, seriously incriminated the accused in the commission of the alleged offence.

[93] The gravity of this Charter-violation is reduced little by virtue of the fact that Det. Campbell appeared to believe that it was acceptable to temporarily delay providing an accused with his right to counsel by temporarily delaying the “official” arrest procedure (i.e. physically placing the accused under arrest, putting him in handcuffs, and conducting a brief pat-down search) in an effort to effect the arrest of the accused in a less embarrassing and more dignified fashion. As there were no exceptional circumstances in this case that might have permitted any delay in providing the accused with his rights under s. 10(b) of the Charter, the police were constitutionally required, according to the Supreme Court of Canada decision in R. v. Suberu, to comply with their obligations in providing the accused with his rights to counsel immediately upon the detention or arrest of the accused. It was not for the police to second-guess when it was best for the accused to be provided with those rights. Accordingly, I cannot conclude that the police acted in good faith in their violation of the accused’s right to counsel. Rather, in my view, the police officers in the present case were careless in their violation of the accused’s rights under s. 10(b) of the Charter. I am not persuaded that the police willfully or intentionally violated the constitutional rights of the accused, or were acting in bad faith in their treatment of the accused, but I am satisfied that they were careless in their violation of his s. 10(b) Charter rights.

[94] At the same time, however, the police were honestly concerned about the potential destruction of the evidence they believed was on the accused’s iPhone. Det. Campbell was seriously concerned that, if the accused’s iPhone was not quickly located, there was a risk that important evidence might be destroyed. In observing that there was “all kinds of weird things people can do to destroy data” on their cell phones, Det. Campbell was alluding to the factual reality that iPhones can be accessed and controlled remotely. Det. Campbell wanted to preserve this evidence until judicial authorization could be obtained to forensically examine the contents of the iPhone. These extenuating circumstances, to a limited extent, mitigate the seriousness of the Charter breach in this case.

c. Conclusion

[95] In my view, the police conduct in breaching the constitutional rights of the accused accorded by s. 10(b) of the Charter in the circumstances of this case was serious. The breach is not properly characterized as technical, nor was it committed in good faith. Rather, it demonstrated that the police officers were careless regarding the constitutional rights of the accused. Nevertheless, the police did not act in bad faith, nor did the police deliberately or intentionally violate the Charter rights of the accused. Rather, they were motivated by their genuine concern to preserve potentially important electronic evidence that was capable of being destroyed remotely. In my opinion, this first prong of the analysis under s. 24(2) of the Charter tends to favour of the exclusion of the evidence found on the iPhone.

3. The Impact of the Charter Violation

a. Introduction – The Legal Principles

[96] As to the impact of the Charter violations, the second prong of the test, the court must assess the extent to which the breaches undermined the Charter-protected interests of the accused. Of course, the more serious the impact on those protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value to citizens. The courts are expected to look at the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. See R. v. Grant, at paras. 76-78.

b. Serious Impact – Incriminating Utterance

[97] In one sense, the conduct of the police that violated s. 10(b) of the Charter had an immediate and serious impact on the Charter-protected interests of the accused. Following the police violation of the Charter, the accused told the police where he had left his iPhone, and that verbal disclosure by the accused led to the police immediately seizing his iPhone from the triage desk where he had been sitting. Accordingly, the police were able obtain an incriminating utterance from the accused and, more significantly, were able to quickly seize and secure important physical evidence contained on the accused’s iPhone as a result of their serious violation of s. 10(b) of the Charter.

c. No Impact – The Discovery of the iPhone was Inevitable

[98] In another sense, however, the conduct of the police that violated s. 10(b) of the Charter had little, if any, practical impact on the Charter-protected interests of the accused. This is so because there is no doubt that the police would inevitably have a discovered and seized the accused’s iPhone from the desk in the triage desk in any event.

[99] More particularly, I am satisfied that had the accused been immediately arrested, and quickly advised of his right to counsel and cautioned against making any statements to the police, the police would inevitably have taken, at a minimum, two further steps in their investigation. First, the police would have conducted a standard pat-down search of the accused incident to arrest. The police would have quickly learned from that pat-down search that the accused was not in personal possession of his iPhone. Second, in an effort to locate the accused’s iPhone, the police would have walked over to the nearby triage desk where the accused had been sitting just moments earlier and searched the contents of that desk. In so doing, the police would have quickly found and seized the accused’s iPhone. Moreover, these two investigative steps would have been perfectly justified as warrantless searches incident to the arrest of the accused. See Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, at pp. 180-182, 186; R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607; R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at paras. 15-25, 22-25; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 23-24, 75, 84; R. v. Nolet, at paras. 49-52; R. v. Fearon, at paras. 13-14, 17-26, 48-49; R. v. Muller, at para. 38. The police might well have searched elsewhere in the hospital if they had not so quickly found the accused’s iPhone in the drawer of the triage desk, but there is no question that they would have begun their search in that location.

[100] My conclusion as to the inevitability of the police discovery of the accused’s iPhone in the triage desk is not based upon speculation. Rather, it is based on logic and common sense, and the sensible assumption that this team of four very experienced police officers possessed at least a modicum of investigative skills.

[101] My conclusion is also based on the evidence in this case. Det. Campbell testified that while the accused’s iPhone could, theoretically, have been anywhere, and he did not know where it was, he believed it was in “close proximity,” as the accused had just been using it to engage in the text message exchange with Det. Hancock. Indeed, Det. Campbell “felt certain” that the accused’s iPhone was located somewhere “fairly close.” More specifically, Det. Campbell testified that they would inevitably have searched the accused personally, and all of the places where the accused had recently been, including the triage desk where the accused had recently been seated. With respect to the triage desk where the iPhone was found, Det. Campbell expressly stated: “I would have looked there – We would have went over there – The desk would have been a place I would have looked, the desk he was sitting at.” Det. Campbell explained that, to him, it seemed only “rational” for him to search the location where the accused had been sitting just seconds before they encountered him in the emergency department and engaged him in conversation. Det. Campbell also testified that, while the complainant thought that the iPhone used by Gino had some type of “green chamo cover,” whereas the accused’s iPhone that was seized was black, he would have seized the accused’s black iPhone from the triage desk regardless, as he was aware that iPhone covers can be easily changed, and he realized that witnesses can be mistaken about such details. I have no hesitation accepting the evidence of Det. Campbell on these issues.

[102] The “discoverability” of evidence remains an important consideration in realistically assessing the actual impact of a Charter breach on the constitutionally protected interests of an accused. Where the Crown is able to establish that the evidence that was obtained in a manner that infringed the Charter would inevitably have been discovered by the police in any event regardless of any Charter breach, this demonstrates that the Charter breach had little or no practical impact upon the constitutionally protected interests of the accused. See R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at pp. 164-166; R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at paras. 106-107, 116, 119; R. v. Whitaker, 2008 BCCA 174, at para. 73, leave denied, [2008] 3 S.C.R. x; R. v. Côté, at paras. 64-66, 69-70; R. v. Nolet, at para. 54; R. v. Caron, 2011 BCCA 56, 269 C.C.C. (3d) 15, at para. 29; R. v. Cole, at paras. 93, 97; R. v. Madore, 2012 BCCA 160, at paras. 22-29, leave denied, [2012] S.C.C.A. No. 384; R. v. MacMillan, 2013 ONCA 109, at para. 62-76; R. v. Johnson, 2013 ONCA 177, 297 C.C.C. (3d) 87, at para. 52; R v Saeed, 2014 ABCA 238, at para. 69.

[103] The Supreme Court of Canada affirmed the importance of the “discoverability” of the evidence in assessing the impact of Charter breaches in R. v. Grant, where McLachlin C.J.C. and Charron J., in delivering the judgment of the majority of the court, stated, at para. 122:

Discoverability retains a useful role, however, in assessing the actual impact of the breach on the protected interests of the accused. It allows the court to assess the strength of the causal connection between the Charter-infringing self-incrimination and the resultant evidence. The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused’s underlying interest against self-incrimination. The converse, of course, is also true. On the other hand, in cases where it cannot be determined with any confidence whether evidence would have been discovered in absence of the statement, discoverability will have no impact on the s. 24(2) inquiry.

[emphasis added]

[104] In the circumstances of the present case, I am convinced that the police discovery and seizure of the accused’s iPhone was simply a matter of time. Whether the accused had cooperated with the police and told them of the location of his iPhone as he did, or whether he had remained entirely mute and left the police to their own investigative devices, the police would have quickly found the iPhone in the triage desk. Indeed, in my view, the triage desk would have been the first place the police looked after the inevitable pat-down search of the accused failed to turn up the iPhone. See also R. v. Grant and Campbell, at paras. 129-131.

d. Conclusions

[105] I am driven to two different conclusions with respect to the impact of the Charter violation on the constitutional rights of the accused. First, in obtaining an incriminating oral utterance from the accused as to the location of his iPhone, the Charter rights of the accused, guaranteed by s. 10(b) of the Charter, were seriously impacted. Second, as it can be confidently concluded that the police would have inevitably discovered and seized the accused’s iPhone in any event as a result of their own investigative measures, the breach of s. 10(b) of the Charter by the police did not have a significant impact upon the Charter-protected interests of the accused. See R. v. Côté, at paras. 64-74. In the result, the second prong of the governing analysis under s. 24(2) of the Charter favours the exclusion of the incriminating oral utterance of the accused, but favours the admission of the evidence obtained from the accused’s iPhone.

4. The Truth-Finding Function of the Trial

a. Introduction – The Legal Principles

[106] As to the third avenue of inquiry, the court must determine whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. The court must consider the impact of the admission of the evidence as well as the impact of failing to admit the evidence. The reliability of the evidence is, of course, an important factor in this step of the analysis. If the Charter violation has undermined the reliability of the evidence, this will support the exclusion of the evidence. However, the exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public and may tend to bring the administration of justice into disrepute. The importance of the evidence to the Crown’s case is also a factor to be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively terminates the prosecution. See R. v. Grant, at paras. 79-84.

b. Application of the Principles

[107] In the present case, there is no doubt that the evidence obtained from the accused’s iPhone is inherently reliable and includes objective pieces of evidence which are crucial to the determination of the merits of this case. The exclusion of this evidence would not cause the Crown’s case to necessarily falter with respect to the complainant KF. But, if admitted, the iPhone evidence would provide powerful corroborative evidence as to her version of events, and would reveal the accused’s apparent purpose in using his iPhone to take photographs and make an audio-visual recording of the naked complainant. Further, the exclusion of this evidence would cause the prosecution to fail with respect to the complainant CBL, who appears to have been photographed, with her breast exposed, while asleep or unconscious. The interest of society in the adjudication of criminal trials on their merits would be seriously undermined if this type of highly reliable and critical evidence was excluded.

[108] The evidence of the accused’s brief utterance directing the police to his iPhone at the triage desk in the emergency department does not have the same inherent, objective reliability. While the contents of the iPhone itself appear to confirm the accuracy of the accused’s statement, the statement itself does not have that same unquestionable reliability. Moreover, the utterance from the accused is not in any way a critical piece of evidence in this case.

[109] Accordingly, the third factor in the governing analysis under s. 24(2) of the Charter strongly favours the admission of the evidence of the contents of the iPhone seized by the police, but favours, at least slightly, the exclusion of the evidence of the accused’s oral utterance about the whereabouts of his iPhone.

5. Conclusion

[110] There is no overarching rule that governs how these three factors should be balanced. There is obviously no mathematical formula that is to be applied. The balancing exercise is a qualitative one. In this assessment, no one factor is any more important than another such that it effectively trumps consideration of the other relevant circumstances. However, the due consideration and balancing of these three factors provides a flexible and helpful decision tree regarding the admissibility of the evidence in issue. In all cases, it is the long-term repute of the administration of justice that must be assessed in determining the admissibility of the evidence. See R. v. Grant, at para. 86; R. v. Harrison, at para. 36; R. v. Sandhu, 2011 ONCA 124, 268 C.C.C. (3d) 524, at paras. 66-69.

[111] The careful balancing of these three important considerations, in the context of all of the circumstances of this case, leads me to conclude: (1) that the evidence of the oral utterance by the accused, as to the whereabouts of his iPhone, is not admissible; and (2) that the evidence of the contents of the iPhone seized by the police, and subsequently examined pursuant to prior judicial authorization, is admissible.

[112] With respect to the utterance by the accused concerning the whereabouts of his iPhone, the police violation of s. 10(b) of the Charter was serious, the impact of the Charter-infringing police conduct on the accused was substantial, and it resulted in the police obtaining a brief oral utterance from the accused that has little inherent reliability when viewed without the confirming evidence from the iPhone itself, and which has little significance in relation to the merits of the case. Accordingly, all three prongs of the analysis under s. 24(2) of the Charter tend, in varying degrees, to favour of the exclusion of this evidence. Accordingly, the evidence of this utterance must be excluded. See R. v. Grant, at paras. 91-92, 97; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 219-220.

[113] With respect to the contents of the iPhone, however, a different result is dictated. The police violation of the accused’s right to counsel under s. 10(b) of the Charter was equally serious, and favours the exclusion of the evidence. However, it was not so serious that the court must dissociate itself from the conduct by excluding the evidence in order to preserve the long-term repute of the administration of justice. Moreover, the practical impact of the Charter-infringing police conduct on the accused was very limited given the inevitability that the police would have found and seized the accused’s iPhone in any event. Further, the evidence of the contents of the iPhone is objectively and inherently reliable, and of critical importance to the merits of this case. Society’s interest in a fair adjudication on the merits would be undermined if this evidence was excluded. Accordingly, the second and third prongs of the analysis under s. 24(2) of the Charter favour the admission of this evidence. Weighing and balancing all of the governing considerations under s. 24(2) of the Charter leads me to conclude that the evidence of the contents of the accused’s iPhone is admissible.

IV

Conclusion

[114] In summary, the police lawfully arrested the accused, but violated his right to counsel guaranteed by s. 10(b) of the Charter. While the subsequent utterance by the accused, directing the police to the nearby location of his iPhone, is not admissible, the contents of the iPhone itself, which would inevitably have been discovered by the police in any event, is admissible under s. 24(2) of the Charter. The application by the accused to quash the search warrant, which was subsequently issued to permit an examination of the accused’s iPhone, is dismissed.

Kenneth L. Campbell J.

Released: May 29, 2015

CITATION: R. v. Aguas, 2015 ONSC 3462

COURT FILE NO.: 676/13

DATE: 20150529

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• and -

ANGELINO AGUAS

PRE-TRIAL RULING ON

CHARTER APPLICATION

K.L. Campbell J.

Released: May 29, 2015