SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CJ8230

DATE: 2015-07-28

RE: R. v. Jory Gus Stephen Fourtounes & Clifford Mark Lewis

BEFORE: James W. Sloan

COUNSEL:
Vlatko Karadzic & J. Young- Counsel, for the Crown

James A. Carlisle - Counsel, for Fourtounes

Harold J. Doan – Counsel, for Lewis

HEARD: July 27, 2015

ENDORSEMENT

[1] Among other charges, both accused are charged with break and enter into a dwelling house in Cambridge Ontario, using a firearm to wit: a loaded 22 calibre revolver while committing the break and enter and possessing marijuana for the purpose of trafficking.

[2] After being arrested, the police found an iPhone on Fourtounes which was seized and they later applied for a warrant to allow them to search certain parts of the phone.

[3] Fourtounes now brings this application seeking an order excluding all evidence the police obtained from their search of his iPhone, alleging it was in breach of Mr. Fourtounes’s Section 8 rights under the Canadian Charter of Rights and Freedoms.

[4] Although the co-accused Lewis and his lawyer were in court on July 27, 2015, they took no part in the proceedings since the iPhone, which was searched, belonged to Fourtounes and not Lewis.

FACTS

[5] The facts of the case, which would have been before the Justice who issued the warrant allowing the police to search the cell phone are not seriously in dispute.

[6] On December 20, 2013, Elvis Sanitzo, an occupant of the house at 83 Essex Pointe Drive in Cambridge, drove his girlfriend to work.

[7] He returned at 9:30 a.m. to find two unknown males in his residence, one of whom was holding a firearm.

[8] Mr. Santizo fled to a neighbour’s and called 911.

[9] When police arrived he told them that both a safe and purses were missing from his residence.

[10] The police observed two sets of fresh shoe prints in the undisturbed snow in the backyard of the residence leading out to a golf course which abuts the backyard.

[11] Both sets of footprints bear different distinctive tread patterns.

[12] By following the footprints, the police located the safe from the residence on the golf course property within a short distance from the property and also discovered a loaded 22 calibre firearm buried in the snow underneath a tree on the golf course property.

[13] While continuing to follow the distinctive footprints the police located 4 pounds of marijuana and purses from the residence in a nearby cul-de-sac.

[14] Civilian witnesses near the cul-de-sac reported observing two males, one of whom appeared to be talking on his cellular phone.

[15] Mr. Fourtounes was arrested a short distance away from the residence approximately 20 minutes after the initial 911 call to police. At the time he was walking on the sidewalk and talking on his phone through an earpiece.

[16] Mr. Fourtounes matched the description of one of the suspects and was wearing shoes matching one of the distinctive tread marks referred to earlier.

[17] During the search incident to arrest an iPhone was found on Mr. Fourtounes’s person.

[18] On February 28, 2014, Detective Welfing obtained judicial authorization to search the iPhone for text messages, call logs, contact information, phone number of the device as well as pictures and videos.

[19] Through the search of the phone, evidence from the call logs and text messages were found relating to the planning and execution of the break and enter. The most incriminating evidence is in the form of a text message conversation between Mr. Fourtounes and the co-accused, on December 19, 2013, which suggests they were casing the residence at 83 Essex Pointe Drive that they were going to break into the next morning.

[20] Mr. Fourtounes now seeks to exclude this evidence from his trial alleging various breaches of his Section 8 Charter Rights.

Fourtounes’s Submissions

[21] Fourtounes argues that:

A. Because there is such a lot of private personal information that can be stored on an individual’s cell phone that he has a strong privacy interest in all of that information.

B. There was not sufficient evidence to issue any warrant because there is very little evidence of Mr. Fourtounes’s use of a cell phone.

C. The court must find an extraordinary amount of evidence to issue such a far reaching on unlimited warrant.

[22] Everyone agrees that people have a strong privacy interest in the information stored on their cell phones.

[23] Several witnesses saw Mr. Fourtounes use a cell phone, including Robert Forster who saw Mr. Fourtounes yelling as if on a Bluetooth phone, Jody Holt who saw him use the cell phone, as did the arresting officer. All of these people testified to the use of a cell phone by Mr. Fourtounes within several minutes after the alleged break and enter.

[24] I was not referred to any legislation or case law which talked about an “extraordinary amount of evidence” being needed before issuing any type of warrant.

The Law

[25] Section 487 of the Criminal Code sets out what the issuing Justice must be satisfied with, before issuing a warrant.

[26] It states: “A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place … (b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offense, or will reveal the whereabouts of a person who is believed to have committed an offense, against this act or any other act of Parliament, ... may at any time issue a warrant authorizing a peace officer… (d) to search the building, receptacle or place for such thing and to seize it,…”

[27] In the wiretap case of R. v Garafoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at paragraph 53, the court stated that before granting an authorization for wiretaps “a judge must be satisfied by affidavit that there are reasonable and probable grounds to believe that: (a) a specified crime has been or is being committed; and, (b) the interception of the private communication in question will afford evidence of the crime.”

[28] The court went on at paragraph 56 to give direction to judges who are reviewing the initial decision to grant a warrant and said: “The reviewing judge does not substitute his or her views for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.”

[29] Therefore, my task as the reviewing judge is to conclude whether or not the authorizing Justice could have granted the authorization for the warrant.

[30] My starting point for this exercise will be to review the ITO.

[31] In this case there was no cross examination of the deponent of the ITO and no argument was addressed with respect to fraud, nondisclosure, misleading evidence or new evidence.

[32] In short no evidence was presented at the hearing to suggest that the information contained in the ITO is not correct.

[33] As set out at paragraph 16 of the R. v. Vu case 2013 SCC 60, [2013] 3 S.C.R. 657, the issuing Justice “may draw a reasonable inference upon the evidence in the ITO; “… the informant need not underline the obvious …”

[34] In the case of R. v. Canadian Broadcasting Corp. (CBC), 1992 12752 (ON SC), [1992] O. J. No. 2229, at page 8 the court states, “… However, in my opinion the concept of “reasonable grounds to believe” necessarily import some measure of uncertainty …”.

[35] The court goes on to state that all searches while constituting a means of gathering evidence, are also an investigative tool and “therefore a determination of what is reasonable in each case will take into account the fact that a search makes it possible not only to seize evidence but also to ascertain that it exists, and even sometimes that the crime was in fact committed and by whom.”

[36] In this case, there is ample evidence that Mr. Fourtounes was speaking on his cell phone shortly after the alleged incident. There is also evidence that two people were involved in the alleged crime and therefore, in all probability, there would have been a period of planning prior to the alleged crime.

[37] By far the most popular way of communicating these days is by cell phone, whether it be by voice, text or email. The popularity of communicating by cell phone certainly rises with the demographics of people in their teens, 20s and 30s, which would include the age of the accused.

[38] Neither accused lives in the City of Cambridge and no vehicle either owned or operated by either of them was found in the vicinity of the crime. This leads to the overwhelming probability that they had been dropped off in the area and would likely be picked up in the area by the same driver or perhaps a taxi. What better way to communicate with your driver than by cell phone?

[39] There appears to be solid evidence linking the accused to the crime scene, most particularly the two sets of parallel footprints with distinctive markings leading from the scene of the crime to where the gun and the stolen goods were located and near where the accused were apprehended.

[40] Did the warrant authorize too extensive research?

[41] The police requested and were granted access to only specific areas of the phone. They were not authorized to search the phone’s GPS, history of web searching, or personal applications such as banking, etc.

[42] The reasons for all of the requested areas to be searched were adequately set out in the ITO.

[43] I therefore dismiss the application.

[44] On the facts of this case, even if I came to the conclusion that there was a breach of the accused’s Section 8 Charter Rights against unreasonable search and seizure, I would have allowed the evidence to be presented at trial as it would not bring the administration of justice into disrepute.

[45] While everyone agrees that there is a strong privacy interest in the contents of an individual’s cell phone, it can certainly be strenuously argued, that if a person takes their cell phone to the scene of a crime, that their expectation of privacy in some of the contents of that phone are less than the expectation of privacy by someone simply walking down the street.

[46] Where more than one accused person is involved in the crime and since many people do all of their communications on cell phones, it can again be argued that the expectation of privacy in some of the contents of an accused’s cell phone at the scene of a crime are lessened.

James W. Sloan

Date: July 28, 2015