ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14-4348
DATE: 2015/11/16
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
DELLEN MILLARD
Applicant
A. Leitch, C. Fraser and B. Moodie, on behalf of the Crown
R. Pillay on behalf of the Applicant
HEARD: October 26 & 27, 2015
A. J. Goodman J.:
RULING ON warrantless seizure of cell phone records
THIS RULING IS SUBJECT TO A BAN ON PUBLICATION PURSUANT TO S. 648(1) OF THE CRIMINAL CODE AND SHALL NOT BE TRANSMITTED, REPRODUCED OR BROADCAST IN ANY MANNER UNTIL THE JURY IS SEQUESTERED OR A FURTHER ORDER OF THIS COURT ALLOWS
[1] The applicant seeks an order excluding the evidence at trial as a result of the warrantless search of his cell phone records obtained by the police on May 10, 2013 through the use of an emergency request to the cellphone provider.
[2] At issue on this application is whether the warrantless seizure of Dellen Millard’s (“Millard’s”) cellular records was a violation of ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms. (“Charter”).
Background:
[3] On the evening of May 6, 2013, Tim Bosma (“Bosma”) got in his truck with two men to go on a test drive. He never returned. Within hours, the search to find Bosma, and the men who were believed to have abducted him began. By May 10, 2013, police suspected the applicant was one of the two men who drove off with Bosma. Police made an emergency request to Rogers Communications Inc. (“Rogers”) for some phone records in relation to the applicant’s cell phone for the period immediately after Bosma disappeared. The police believed that these records would show where the applicant, and consequently Bosma were in that timeframe.
[4] At 1:25 a.m. on May 7, 2013, Detective Constable Tselepakis (“Tselepakis”) spoke with Bell Canada Corporate Security in relation to immediately obtaining the cellular phone records for Bosma. Tselepakis was instructed to complete a “Humanitarian Request” for disclosure of the records. Upon receiving the records, Tselepakis discovered that Bosma had been in contact with telephone number 647‑303‑2279 at 7:22 p.m. and again at 9:05 p.m. This latter call was consistent with Bosma speaking with the individual(s) arriving at his residence. Sharlene Bosma and Wayne Deboer’s observed that Bosma received a call from the men who were interested in the truck as they were walking up the driveway just after 9pm. Bosma’s phone was never used again after 9:05 p.m. The number appeared to be critically important to understanding who took Bosma the night he disappeared and where they took Bosma.
[5] Police also spoke with a representative with Wind Mobile, the service provider for the 647‑303‑2279 phone number that had been in contact with the Bosma phone immediately prior to his disappearance. Through this discussion, police discovered that the phone was registered to “Lucas Bate” of 350 Kipling Avenue in Etobicoke, (“Bate or burner phone”). This was a fictitious name and the address turned out to be a school.
[6] The Bate phone was physically turned off by a user at 9:23 p.m. on May 6th, 2013. It was last active around 1532 Wilson Street West, Ancaster. This location is 2.5 km from the Bosma residence. Further information revealed that when the phone received a message at 11:06 p.m. on May 5, 2013, it used the cell tower located at 265 Markland Drive, not far from the applicant’s residence at 5 Maple Gate Court, Etobicoke.
[7] The police wanted to identify the person who used the Bate phone, locate that user and consequently Bosma. With regards to the Bosma phone or the “Bate” phone, police already had material information by previous humanitarian or emergency request and were using that information in an attempt to identify “Lucas Bate”. Importantly, the police were given the numbers of the last few calls made to and received by the “Bate” phone to further their search.
[8] Armed with this information, police began to speak to the people who were last in contact with the “Bate” phone. As a result they spoke to three men who had been in contact with the “Bate” phone: Igor Tumamenko (“Tumamenko”), Omar Palmalli and Dennis Araujo. Tumamenko advised police that the day before Bosma’s disappearance, he met with two men who were interested in purchasing the pickup truck he was selling online. He had gone on a test drive with the two men and was able to provide the police with a description of both men, including the distinctive “ambition” tattoo that he observed on the taller man’s wrist and that he carried with him an “Indiana Jones” style satchel.
[9] Police reached out to several other police forces to try to identify the man with the “ambition” tattoo. While various reports were received, two separate police forces, Peel and Toronto, provided relevant information about the tattoo and the same name: Dellen Millard. Police also learned the applicant owned an airport hangar outside Waterloo and was provided with his home address of 5 Maple Gate Court in Etobicoke.
[10] On May 8, police received a Crime Stoppers tip that an individual had seen Bosma’s truck with the seating and interior carpeting removed. The caller would not say where the vehicle was specifically, but did indicate it was located within the “twin cities” (Kitchener‑Waterloo). Additionally, the “Bate” phone had pinged off a tower close to Millard’s Etobicoke home the day before Bosma went missing, on May 6, 2013 at 7:22 p.m.
[11] On May 10, 2013, at approximately 2:15 p.m. police officers travelled to the applicant’s hangar at the Waterloo International Airport. Two officers entered the reception area of Millard Air and discerned that the applicant matched the witness descriptions of the taller man who looked at both the Tumamenko and Bosma’s trucks, and observed Millard’s use of a satchel. Millard was nervous and appeared as if he expected the police to arrive. Detective Hamilton (“Hamilton”) testified that his walk around or about the hangar was “to look for a live Tim Bosma”.
[12] Shortly after the police left the applicant’s hangar, Millard was observed to have moved a Dodge pickup truck from the hangar to the home of his employee’s friend. Hamilton was of the view that Millard was the suspect in the disappearance of Bosma and requested that surveillance begin on Millard.
[13] Detective Jackson (“Jackson”) then contacted Rogers and requested the Millard cellular phone records. Jackson was required to complete an emergency disclosure request form in order for Rogers to consider disclosing the records related to Millard’s cellular phone. At 5:07 p.m. Jackson completed the form and sent it to Rogers. The responses to the questions posed on the form are as follows:
Q2. Whose death or serious physical injury is threatened?
“ Tim Bosma, seen leaving with the two males by his wife.”
Q3. What is the imminent nature of the threat? (i.e., what information do you have that suggests that there is a specific deadline to receive the information before the act indicated in response to Question 1 will occur (i.e., tonight, tomorrow at noon).
“Bosma has been missing since Monday night, and his whereabouts are unknown. Belief is that he has been abducted by the two unidentified males, and this information will assist in locating him.”
Q4. Please explain why you believe there is insufficient time to obtain appropriate legal process in light of the deadline set forth in Question 3.
“Police have just learned this information in connection to the cellular number. Officers are currently conducting surveillance on the subscriber of this number, and investigators are preparing judicial authorization.”
Q5. What specific information in Roger’s possession related to the emergency are you seeking to receive on an emergency basis? (Note: Please do not respond by asking for everything Rogers has in its possession as such response will likely result in delaying or denying this request.)
“I am seeking the cellular activity and tower locations for calls incoming and outgoing from the subject phone for Monday night 6 May 2013 from 5pm till 12 midnight, which I believe will assist in determining the location of our Victim.”
[14] Later the same day, at 6:32 p.m., the police received the requested cell phone records. The Roger’s records included Millard’s customer name and address and call log records in relation to 22 calls or text communications, including cell tower information associated to the applicant’s phone in relation to those communications between 5:13 p.m. and 11:59 p.m. on May 6, 2013.
[15] Jackson immediately compared the cellular tower locations from Millard’s phone to the tower locations related to the Bate phone. Jackson concluded from that review that the Bate phone was likely operated by Millard. He was to be arrested later that evening.
Positions of the Parties:
[16] The applicant argues that the cell records disclosed by Rogers on the basis of a humanitarian request or an emergency basis ought to be excluded as it was a warrantless search, not authorized by law, in violation of s. 8 of the Charter.
[17] The applicant submits that given his clear status as a suspect in the investigation by the early afternoon of May 10, 2013, a judicially authorized warrant or production order was required in the circumstances of this case. The applicant further submits that the emergency disclosure request was based on information that was knowingly inaccurate and intended to mislead Rogers. In essence, Jackson deliberately misled Rogers in the emergency request as the police were not trying to locate Bosma, but were trying to confirm Millard as a suspect.
[18] The applicant argues that the police officers did not even attempt to secure a warrant. Instead, they succeeded in shortcutting the protection afforded by s. 8 of the Charter. In order to shortcut the procedural protection, Jackson deliberately provided Rogers with less than accurate information. Accordingly, as this amounts to a warrantless search, the onus rests with the Crown to demonstrate, on a balance of probabilities, that the search was a reasonable one.
[19] The applicant submits the police cannot rely on the doctrine of exigent circumstances and judicial authorization was required. The police could have applied for a production order earlier that day, well before 3:05 pm when the Millard cell number was confirmed; and 5:07 p.m. when Jackson completed the humanitarian request.
[20] The Crown submits that the applicant’s s. 8 rights were not violated. Police used their exigent search powers to obtain a limited segment of the applicant’s phone records. Police had the grounds to obtain a warrant, however, the urgent need to locate Bosma made seeking a warrant impracticable in the circumstances. The information provided to Rogers in the emergency request from was accurate.
[21] If the applicant’s s. 8 rights were violated, the evidence should be admitted pursuant to s. 24(2) as any breach of the applicant’s Charter rights was minimal. The Crown submits that in a life or death situation, police obtained a narrow range of records over which the applicant has a diminished expectation of privacy. All of the s. 24(2) factors favour inclusion of the evidence.
Legal Principles:
[22] A search will only be considered reasonable if it is authorized by law, if the law is reasonable and if the manner in which the search was carried out was also reasonable: R. v. Collins, [1987] 1 S.C.R. 265 at para. 23. The Crown bears the onus to demonstrate that any particular warrantless search satisfies these criteria.
[23] Pursuant to s. 487.11, a peace officer is authorized to search and seize evidence without a warrant, provided the grounds to obtain a warrant exist. Section 487.11 reads:
A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.
[24] For a warrantless search to be authorized in a case of exigent circumstances, s. 487.11 of the Code provides that the following criteria must be satisfied: The conditions precedent for either a s. 487(1) or s. 492.1(1) warrant must exist and, there must be exigent circumstances that render obtaining a warrant impracticable.
[25] In R. v. Pavic, [2010] O.J. No. 5015, (S.C.), in addressing whether s. 487.1 of the Code is limited to situations of urgent or exigent circumstances, Bryant J. held at para. 18:
In my view, the existence of urgent or exigent circumstances is not a prerequisite for an application for a warrant by means of telecommunication. The officer is not required to delay applying for a warrant until a justice of the peace is on duty at regular business hours.
Analysis:
[26] Was the request and seizure of records authorized by the police power to search in exigent circumstances? A determination whether police can exercise their exigent search and seizure power, whether pursuant to common law or statutory authority is highly contextual.
[27] The doctrine of exigent circumstances was originally recognized at common law as a basis for the warrantless search of a person or property where there was an imminent risk of loss, removal, destruction or disappearance of evidence, or where there was a real concern for public or police safety.
[28] In response to judicial disagreement over the scope of permissible warrantless exigent circumstances searches in cases like R. v. Silveira, [1995] 2 S.C.R. 297, and R. v. Feeney, [1997] 2 S.C.R. 13, Parliament created statutory authority to conduct such searches, including s. 487.11 of the Criminal Code.
[29] Police believed that Millard was one of the men who operated the Bate phone and abducted Bosma. It stood to reason that cell tower information regarding activity on either the captors’ phone(s), or Bosma’s phone could show where Bosma was taken after the abduction.
[30] On May 10, Jackson received information regarding the distinct tattoo and similar descriptors to Millard from Lisa Smith of the Peel Police Service at 11:22 a.m. At 11:35 a.m. Officer Shaw of the Toronto Police service provided additional material information to Jackson linking the applicant to the investigation. This included an address in Toronto proximate to the cell tower used by the Bate phone at the relevant times; a middle name that matched one provided to the police along with the distinct tattoo on Millard’s wrist. According to the Toronto police report, there was a different description of Millard’s height. By 1:40 p.m., Shaw had reviewed a witness videotaped interview of Millard and had advised Jackson that Millard was tall and lanky, indeed much taller than the original height description.
[31] On the record before me, I am persuaded that Millard was implicated in the crime and the police had reasonable grounds to seek judicial authorization at the time they received all of the information from both police organizations; and surely by the time of Officer Shaw’s confirmation of Millard’s descriptors at 1:40 p.m. At that point, the police knew that his cell phone provider was Rogers.
[32] In my opinion, the requesting officer had the requisite grounds to obtain a s. 487 warrant or a production order for the requested material. Jackson knew that Rogers was confirmed as the cell phone provider for the applicant’s phone and that therefore Rogers would have possession of the requested records. It was a relatively easy exercise to determine whether the phone linked to Millard was still operational without having to resort to confirmation by Hamilton in questioning Millard at the hangar.
[33] In evaluating whether the request for the records was “impracticable”, it must keep in mind what the standard entails. “Impracticable” does not mean impossible: R. v. Erickson, 2003 BCCA 693 at para. 33.
[34] I have considered the request to Rogers in light of the investigative reality that existed at the time the request was made. There is some validity in the fact that the police did not have the time to wait. Bosma had been missing for days. His family and his community demanded that he be found promptly. It was extremely uncharacteristic of Bosma to leave and the police suspected foul play in what was a missing person investigation at the time. Each minute could have potentially meant the difference between finding Bosma alive or dead. Millard was in the process of being located and possibly physically identified by Hamilton and Tselpakis.
[35] However, I am persuaded that the police unduly delayed their request for the Rogers records. The questions posed by Mr. Pillay in his submissions to me have merit. Why did the police wait until such time as Hamilton and Tselpakis confirmed the information about Millard’s cell phone? Were there other avenues available to the police if time was in essence in an exigent circumstance situation? More importantly, what confirmatory evidence sought at Millard Air hangar with the applicant could have advanced the grounds for the production order that was not already known to the requesting officer? Finally, what would police have done in relation to securing the impugned records if Millard was not in fact located at the hangar when visited by the two Hamilton police officers?
[36] The Crown says that even if this search did not satisfy the requirements of s. 487.11 of the Code, it nonetheless fell within the common law power to search in exigent circumstances where life and safety are at risk.
[37] “Exigent circumstances” is not defined in s. 487.11. However, guidance is found by reference to the definition of that phrase contained in s. 529.3(2).
[38] The Crown submits that the cases of R. v. Golub and R. v. Godoy assist this Court in the analysis of this question. In my view, both cases are distinguishable on their facts and applicability to the narrow issue in this application.
[39] The police approach to the applicant’s cellular phone records stands in contrast to that taken for the records of the Bate and Bosma cellular phones. Millard’s phone, which, by May 10, 2013 could have substantiated an established connection to the disappearance or link to the Bate phone and was of such importance that a production order would not have taken too long to complete. I tend to agree with the applicant in that a production order could have been drafted between 3:05 p.m. and 5:07 p.m. or, as mentioned, earlier that same day based on the reliable information provided to and known to police by at least 1:40 p.m.
[40] The applicant argues that the information the police provided in the Emergency Disclosure Request was deliberately misleading. I do not share that view. I am satisfied that the police were honest and forthright in their responses to the pre‑printed questions found on the form.
[41] As mentioned, it is my view that the police officer had reasonable grounds to seek the production order earlier than when the police made their emergency request to Rogers. I do not find that the exigent circumstances doctrine is grounded in the evidence.
[42] As I do not accept that it was impracticable for the police to obtain a warrant or a production order in the circumstances, the request for the cell phone records is a warrantless search and seizure.
[43] I find that the applicant’s s. 8 Charter rights were breached. Having so found, I need to turn to analysis pursuant to s. 24(2) of the Charter.
Conclusion:
[81] I am not satisfied that the securing of the applicant’s cell phone records arose in the context of urgency or exigent circumstances. Even considering the fluid and fast‑evolving series of events on May 10, 2013, I find that the police had reasonable grounds that had crystalized earlier that day and as such, ample time to draft and secure a production order for the cell phone records. I find that the applicant has established a breach of his rights pursuant to s. 8 of the Charter.
[82] However, for all of the aforementioned reasons and in accordance with the principles enunciated in Grant and pursuant to s. 24(2) of the Charter; upon a balancing of the appropriate factors, I conclude that the admission of the applicant’s cell phone records would not bring the administration of justice into disrepute.
[83] Therefore, the applicant’s cell phone subscriber information and tower location records provided by Rogers to the police on May 10, 2013 are to be admitted into evidence.
A. J. GOODMAN, J.
Released: November 16, 2015