CITATION: R. v. Keith Ritchie, 2016 ONSC 1092
COURT FILE NO.: CR-13-0081
DATE: 2016-02-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Claude Richer and Kristen J. Mohr, for the Crown
Respondent
- and -
Keith Ritchie,
Victor Giourgas, for the Applicant
Applicant
HEARD: January 18, 19 & 20, 2016, at Thunder Bay, Ontario
Platana J.
Rulings on Excision
[1] In the course of an application under s. 8 and s. 24(2), the defence seeks a ruling that certain paragraphs in the Information to Obtain (ITO) the Production Order, and from the affidavit to obtain a warrant to search the residence of Mr. Ritchie at 163 Wolverine Crescent, in the city of Thunder Bay, should be excised.
[2] The facts giving rise to this issue can be stated as follows:
John Tsekouras was arrested on June 6, 2011. A cell phone was seized, and initially searched without a warrant or other justification;
A warrant was subsequently obtained;
A ruling by Wright J. in the matter involving Tsekouras determined the search to be unlawful as a breach of his s. 8 Charter rights.
The evidence was determined to be admissible pursuant to s. 24(2);
Using information retrieved from Tsekouras’ cell phone as part of an ITO, police obtained a search warrant for Mr. Ritchie’s residence and a Production Order to search credit card information found in communications in Mr. Ritchie’s cell phone;
In an earlier pre-trial ruling with respect to Mr. Ritchie seeking leave to cross-examine the affidavit on the Production Order and the search warrant, I ruled that Mr. Ritchie did not have a reasonable expectation of privacy in the messages of Mr. Tsekouras’ seized phone, and therefore, had no standing to challenge the inclusion of information obtained as a result of the unlawful search of the Tsekouras phone.
Applicant’s Submissions
[3] Mr. Giourgas relies on the decision R. v. Guindon, 2015 ONSC 4317 (unreported), which holds that an accused person is entitled to challenge the legality of the evidence upon which authorizations, search warrants and Production Orders impacting on their privacy interests were obtained. He states the issue before me is whether evidence obtained in violation of the Charter rights of a third party should be excised from affidavits and ITOs that were used to obtain orders that do engage the applicant’s privacy interests.
[4] Mr. Giourgas submits that he should be entitled to challenge the evidence seized from Mr. Tsekouras’ phone, and that it should be excised. He notes that the ruling of Wright J. has already determined that the search of that phone was unlawful. He submits that in this case, if the evidence is excised, there is no basis for the issuance of the search warrant, and the issue of the admissibility of the evidence would turn on a s. 24(2) analysis.
[5] He relies on paragraph 6 of Guindon, where Bird J. states:
[6] The law clearly requires the excision of all references to evidence that was obtained in violation of an applicant’s Charter rights: R. v. Grant, 1993 SCC 68, [1993] S.C.J. No. 98, R. v. Plant, 1993 SCC 70, [1993] S.C.J. No. 97 and R. v. Wiley, 1993 SCC 69, [1993] S.C.J. No. 96. The appropriate approach in such a case is to excise the information that was unconstitutionally obtained and determine whether there is a basis upon which the authorizing judge could have granted the authorization on the remaining material. This procedure prevents the state from benefitting from the illegal acts of police officers without sacrificing search warrants that would have been issued in any event (Grant at paragraph 50).
[6] Mr. Giourgas notes that in Guindon, the judge rejected the Crown’s position that R. v. Chang, 2003 ONCA 29135, [2003] O.J. No. 1076 (C.A.), stood for the proposition that an applicant can never challenge a search warrant or wiretap authorization based on a violation of a third party’s Charter rights. Justice Bird noted that in Chang, the Court was being asked to conduct a full Garofoli review of an authorization granted in Quebec and communications intercepted pursuant to the Quebec authorization were relied upon to obtain authorizations in Ontario. Mr. Giourgas notes that the trial judge in Guindon relied on the fact that she had already made a ruling that the impugned evidence was obtained in violation of the Charter.
[7] Mr. Giourgas further notes that in Guindon, Justice Bird relied on the decision in R. v. Croft, 2013 ABQB 716, 578 A.R. 211, where the trial judge granted standing to seek exclusion of evidence that was illegally obtained, on the basis of common law doctrine of abuse of process. He notes that Guindon also referred to R. v. Brown, [2000] O.J. No. 1177 (S.C.), where LaForme J. (as he then was) found that the accused had the right to examine the police conduct that gave rise to the intrusion on their privacy through the interception of their private communications.
[8] Similarly, in Guindon, he notes that the trial judge relied on R. v. Riley, 2009 ONSC 7177, [2009] O.J. No. 738 (S.C.) where information was excised from affidavits in support of authorizations that related to items seized from a third party’s home in violation of s. 8 of the Charter.
[9] Justice Bird similarly relied on R. v. Vu, [2004] O.J. No. 5681 (S.C.), where it was held that the accused had standing to challenge the validity of the interception of private communications to which she was not a party because they were used to obtain a second authorization which named her as a known party.
[10] Mr. Giourgas notes that Justice Bird also considered R. v. Mahmood, 2011 ONCA 693, [2011] O.J. No. 4943:
[19] I find further support for the position of the applicants in the decision in R. v. Mahmood, 2011 ONCA 693, [2011] O.J. No. 4943 (Ont. C.A.). At trial, all three appellants challenged Production Orders and search warrants that included information obtained pursuant to a warrant for a cellular phone tower dump. They submitted that all references to information obtained as a result of the tower dump warrant should be excised from subsequent ITOs on the Garofoli review. The Crown argued that Mr. Sheikh had no standing to seek the excision of this information because his phone number did not appear in the tower dump records. The issue of Mr. Sheikh’s standing to make the argument for excision was squarely raised on appeal (at paragraphs 86 and 151). In analysing the issues on appeal, Watt J.A. drew no distinction between Mr. Sheikh and his co-appellants. The court accepted that excising references to the tower dump information left the ITO in support of a search warrant to obtain subscriber information with insufficient grounds to support its issuance. The subsequent residential warrants were similarly insufficient following excision. The admissibility of the evidence fell to be determined under section 24(2). The fact that the Court of Appeal undertook the same analysis for all three appellants, even though Mr. Sheikh’s privacy interests were not directly impacted by the tower dump warrant, supports the applicants’ position that they can seek excision of illegally obtained evidence that was used to obtain orders that affected their privacy interests.
[11] Mr. Giourgas submits that in all these cases, third parties were entitled to challenge the constitutionality of warrants, authorizations, or Production Orders.
[12] Mr. Giourgas cites the decision in R. v. Shayesteh, 1996 ONCA 882. He submits that case stands for the proposition that an accused can apply to attack evidence obtained illegally from a third party to buttress the third party’s own challenge to evidence purported to be used against him. He notes at pages 11 and 12:
With respect to the interception of the appellant's own calls, no issue is raised as to his standing to assert a violation of his s. 8 Charter rights. The Crown argues, however, that the appellant has no standing to assert a violation of Daryoosh's rights under these circumstances and he therefore has no right to demand excision of the information derived from any such violation, if it is found to exist. The Crown states that the appellant only has standing to assert a violation of his own Charter rights and can therefore only demand excision of information derived from interceptions which constitute such a violation of his rights. In this regard, reliance is placed on R. v. Edwards, 1996 SCC 255, [1996] 1 S.C.R. 128, 192 N.R. 81, and R. v. Pugliese (1992), 1992 ONCA 2781, 8 O.R. (3d) 259, 71 C.C.C. (3d) 295 (C.A.).
In my view, the cases of Edwards and Pugliese can easily be distinguished, and this argument must fail in this case. The appellants in both Edwards and Pugliese were unable to establish that they had an expectation of privacy with respect to the impugned search and consequently they could not argue that their rights had been violated. In this case, however, since the appellant's own telephone calls were intercepted as a result of the targeting of Daryoosh in the second and third authorizations, he clearly had an expectation of privacy with respect to those communications. This expectation of privacy is sufficient to give him standing to dispute the legality of those interceptions. The fact that a consideration of the legality of these interceptions in effect entails a consideration of Daryoosh's s. 8 rights, because the statutory requirements are identical to the constitutional requirements of s. 8, does not affect the appellant's standing to bring his application.
[13] From the affidavit in support of the search warrant, the applicant seeks to have excised paragraphs 119 – 125 in the ITO, which purport to link Mr. Ritchie to a particular pre-paid MasterCard credit card, and to show information relating to the statements related to that credit card. He further seeks excision of information in Appendix “C” in the ITO.
[14] Mr. Giourgas submits that the applicable law is found in the trilogy of decisions in R. v. Grant, 1993 SCC 68, R. v. Plant, 1993 SCC 70, and R. v. Wiley, 1993 SCC 69, [1993] 3 S.C.R. 263. He submits that the information should be excised not only on the basis of Wright J.’s determination of an unlawful search of Tsekouras’ cell phone, but also on the basis of a violation of Mr. Ritchie’s s. 8 Charter rights.
Respondent’s Submissions
[15] Mr. Richer notes that the only basis upon which the Applicant seeks excision is on the basis of a violation of s. 8.
[16] Mr. Richer, for the Crown, relies on paragraph 45 in R. v. Edwards, 1996 SCC 255, to submit that in order to have standing to challenge the search warrant and Production Order, Mr. Ritchie must establish an evidentiary basis on a balance of probabilities that his personal rights have been violated:
45 A review of the recent decisions of this Court and those of the U.S. Supreme Court, which I find convincing and properly applicable to the situation presented in the case at bar, indicates that certain principles pertaining to the nature of the s. 8 right to be secure against unreasonable search or seizure can be derived. In my view, they may be summarized in the following manner:
A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. See R. v. Rahey, 1987 SCC 52, [1987] 1 S.C.R. 588, at p. 619.
Like all Charter rights, s. 8 is a personal right. It protects people and not places. See Hunter, supra.
The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated. See Pugliese, supra. …
[17] Mr. Richer submits that the Applicant cannot rely on the ruling of Wright J. that the Tsekouras search was unlawful as that was an interlocutory search. (Duhamel v. The Queen, 1984 SCC 126, R. v. Thompson, 2013 ONSC 4624, [2013] O.J. No. 6302.) He submits that my finding that there was no breach of Mr. Ritchie’s s. 8 rights in the Application to cross-examine is dispositive of the issue. He argues that exclusion, a remedy under s. 24(2), can only be considered if the Applicant first establishes a breach of a Charter right personal to him.
[18] He cites R. v. Schertzer, 2010 ONSC 6820, [2010] O.J. No. 6280, where Pardu J. (as she then was) states:
[19] In R. v. Duhamel (1984), 1984 SCC 126, 15 C.C.C. (3d) 491 (S.C.C.), the court concluded that an interlocutory ruling in one case “cannot bind the parties” in a subsequent trial. A statement by an accused had been found involuntary and it was argued that in a different trial for a different offence the Crown was estopped from attempting to prove that the statement was voluntary. The court cited with approval the observations of Moir J.A. and concluded that issue estoppel is not available except in respect of a “final determination of any issue essential to the verdict.” …
[23] R. v. Duhamel still constitutes a controlling authority and I am satisfied that the Crown is not barred by the interlocutory rulings made by Hill J. from contesting whether the search of the home and seizure of the documentary evidence violated s. 8 of the Charter. A discussion as to admissibility of evidence pursuant to the Charter is an interlocutory ruling. (R. v. Meltzer (1989), 1989 SCC 68, 49 C.C.C. (3d) 453 at 461-2.)
[19] Mr. Richer refers to Duhamel and the judgment of the court delivered by Lamer J. where, after canvassing the factors of issue estoppel, including that the judicial decision was final, stated at paragraph 9:
9 … But there is, I respectfully submit, a great difference between such determinations and those where the finding is unrelated to innocence and guilt and the circumstances being considered have nothing whatsoever to do with the material or mental elements of the alleged crime. Such is the case when, for example, the Crown wishes to adduce evidence electromagnetically obtained (s. 178.11 Cr.C.); as will possibly be the case for certain findings on evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms. And such is also the case for voir dires on “confessions”.
Mr. Richer submits that the ruling of Wright J. in the Tsekouras trial, is not one which touched on the guilt or innocence of Mr. Tsekouras.
[20] Mr. Richer refers to R. v. Thompson 2014 ONCA 43, [2014] O.J. No. 251, at paragraphs 51 – 53:
[51] The terms “proceeding” and “proceedings” would include a voir dire to determine the admissibility of evidence, as well as a preliminary inquiry at the conclusion of which a justice is required to decide whether there is sufficient evidence to put an accused on trial for the offence charged or any other indictable offence in respect of the same transaction.
[52] In Duhamel v. The Queen, 1984 SCC 126, [1984] 2 S.C.R. 555, the appellant was tried separately on two counts of robbery charged in the same indictment. At the first trial, a voir dire was conducted to determine the admissibility of certain statements made by the appellant. The trial judge ruled the statements inadmissible. Duhamel was acquitted. A different judge presided at the second trial. Despite objections based on issue estoppel, the second trial judge conducted a voir dire and admitted the statements ruled inadmissible at the first trial. Duhamel was convicted. On appeal, he argued that issue estoppel precluded the Crown from re-litigating the admissibility of the statements ruled inadmissible at the first trial.
[53] The Supreme Court of Canada unanimously affirmed the judgment of the Alberta Court of Appeal rejecting the extension of the doctrine of issue estoppel to include, as estoppel-creating findings, rulings on the admissibility of evidence, at least in the absence of a discrete right of appeal from decisions on admissibility.
[21] He argues that although I have found that Mr. Ritchie had no violation of his right to privacy for the purpose of cross-examination of the affiant on the ITO the Production Order, Mr. Ritchie now seeks a remedy to excise portions of the ITO and, if that is not obtained, exclusion of the evidence.
[22] He submits that it is open to the Crown to litigate in this case the finding of unlawful search of the Tsekouras phone. He notes that in the case of the Ritchie search, there was the intervening factor that a warrant was obtained to search the Tsekouras phone before any of the data retrieved from it was used in the Information to Obtain and search warrant of the Ritchie phone. He argues that prior to February 1, no right of Mr. Ritchie had been breached because he had no rights in the Tsekouras phone.
[23] Mr. Richer acknowledges the decision of Justice Bird in Guindon, but respectfully suggests that she followed the wrong process in that she began by looking for an appropriate remedy for the breach without first determining if there was a breach of personal rights. Further, he argues, in considering the decision in Croft in her reasons, she noted the basis of the decision is that the trial judge found standing to challenge on the full Garofoli review on the basis of trial fairness, which is not an alleged breach before me in this Application for excision.
[24] He references R. v. Atkinson, [2007] O.J. No. 1681 and R. v. Chang, 2003 ONCA 29135, [2003] O.J. No. 1076. He submits that the reasoning in Chang should be preferred over that in Guindon. In Chang, the Ontario Court of Appeal considered the use of Quebec wiretap authorizations to obtain Ontario wiretap authorizations, which the appellants argued was obtained illegally. Mr. Richer points to paragraph 35 where the court states:
[35] The appellants rely upon R. v. Plant, 1993 SCC 70, [1993] 3 S.C.R. 281; R. v. Wiley, 1993 SCC 69, [1993] 3 S.C.R. 263 and R. v. Grant, 1993 SCC 68, [1993] 3 S.C.R. 223. The aforementioned trilogy of cases asserts that information obtained as a result of unlawful activity by the police should be excised by a reviewing court in determining the validity of a search warrant. However, each of those cases involved the breach of the applicant’s own Charter rights and the court excised the information on that basis. The trilogy is distinguishable from the case at bar in that the alleged unlawful evidence obtained as a result of the Quebec Immigration Authorization was not obtained as a result of a violation of the rights of either of the appellants. Indeed, the appellants do not cite any cases in which a reviewing court excised information from an affidavit in support of a wiretap authorization where the impugned information was obtained as a result of the breach of a third party’s rights.
[25] Mr. Richer relies on R. v. Huynh, 2008 ABQB 464, [2008] A.J. No. 860, where the trial judge referenced Edwards, and noted at paragraph 36:
[36] Based on Edwards, it is clear that if the illegal search of Ms. Huynh's home had netted evidence of criminal activity by Ms. Phan, Ms. Phan would not have had standing to argue for exclusion of such evidence unless she could establish a privacy right in the home or possessory interest in the evidence. …
[26] Further reference is made to paragraph 41 - 43 in Huynh:
[41] In R. v. Shayesteh (1996), 1996 ONCA 882, 111 C.C.C. (3d) 225 (Ont. C.A.), the appellant was a party to or referred to during the course of certain calls involving a co-accused. These calls, which had been intercepted pursuant to a second authorization, then formed the main basis for targeting the appellant under a third and fourth authorization. The appellant argued that his co-accused had been improperly targeted under the second authorization and that any information obtained as a result should be set aside in assessing the validity of the third and fourth authorizations. Charron J.A. commented at para. 40 on the appellant’s standing to make that argument:
... since the appellant's own telephone calls were intercepted as a result of the targeting of Daryoosh in the second and third authorizations, he clearly had an expectation of privacy with respect to those communications. This expectation of privacy is sufficient to give him standing to dispute the legality of those interceptions. The fact that a consideration of the legality of these interceptions in effect entails a consideration of Daryoosh's s. 8 rights, because the statutory requirements are identical to the constitutional requirements of s. 8, does not affect the appellant's standing to bring his application.
[42] In R. v. Rendon (1999), 1999 QCCA 9511, 140 C.C.C. (3d) 12 (Que. C.A.), Mr. Justice LeBel, for the majority, cited Shayesteh and held at para. 86 that: “... when ‘A’ telephones ‘B’ who is a target whose conversations are intercepted, ‘A’ expects that his communication is private, and hence has standing to attack the validity of the wiretap at ‘B's’ premises.”
[43] In my view, the decisions in Shayesteh and Rendon simply confirm the comment in Edwards that an accused who can establish an independent privacy interest in evidence obtained as a result of a search has standing to challenge the validity of that search.
[27] Mr. Richer asks me to adopt the reasoning in paragraph 48:
[48] The information and evidence obtained from the search of Ms. Huynh’s home was obtained in violation of her s. 8 Charter rights. No violation of Ms. Phan’s s. 8 rights has been alleged in relation to the search of the home or the seizure of any of the items contained in the home. Accordingly, there is no basis for excising information relating to the information or evidence obtained from the illegal search of Ms. Huynh’s house from the ITO as it relates to the Production Order for the search of Ms. Phan’s safety deposit box.
[28] Mr. Richer recognizes the decision in Shayesteh, relied on by the Applicant and referred to in Huynh, and other cases; however, he notes that in that case the court found there was an expectation of privacy.
[29] Mr. Richer cites the Alberta Queen’s Bench decision in R. v. Nguyen, 2008 ABQB 721, 462 A.R. 240:
[282] Miao and Ta argue that they are entitled to raise violations of Nguyen’s s. 8 Charter rights as the alleged violations resulted in information being put into the ITO which was fundamental to it being successful in obtaining a search warrant for Unit [...]. They argue that reference to the drugs and cash found in the cell phone box and in Nguyen’s car should be expunged from the ITO. If that occurs, the ITO would have been insufficient to result in the granting of a search warrant, and the Crown agrees with this submission. …
[286] For the purposes of considering Miao and Ta’s status with respect to any breach of Nguyen’s Charter rights, they are surely in no better position than he as far as exclusion from evidence and s. 24(2). If the evidence is admissible against Nguyen regardless of a breach of his s. 8 rights, reference to such evidence in the ITO is likewise admissible there against him and others whose rights were not violated. …
[297] With respect, I do not accept the conclusion of Arnold P.C.J. as to the status of the co-accused to raise the invalidity of the search warrant because of the s. 8 breach of the other accused’s rights. I do not see how the case can stand in the face of Edwards. I do recognize that there may be circumstances where the information in an ITO has resulted from a particularly egregious breach of someone’s Charter rights, or from illegal conduct on the part of the police, or other offensive circumstances. However, no s. 7 breach or abuse of process has been found in this case.
[298] As such, I decline to follow Guilbride, and conclude that if there is anything in the ITO that resulted from a violation of Nguyen’s rights, neither Miao nor Ta has the status to object to its inclusion in the ITO.
[30] Mr. Richer relies on R. v. Todd, 2015 BCSC 680, 121 W.C.B. (2d) 113, where the court followed Edwards in finding that a claim for relief under s. 24(2) can only be made by a person whose own rights to privacy have been violated.
[31] He references Croft where the issue was framed as:
[10] The issue in this application is not as to the standing of the accused to challenge the wiretap authorization; it is, as the Crown views it, as to whether in the context of that challenge, they have standing to seek the excision of information in the affidavit which was obtained in breach of a third party’s constitutional rights, though not in violation of the accused’s own constitutional rights. …
[12] In the context of the determination of whether evidence is admissible at trial (as distinct from the determination of whether evidence should be excised from the affidavit or ITO in a Garofoli application) there is no doubt that the accused could not seek the exclusion of evidence obtained through the breach of a third party’s Charter rights. The accused would not have standing to seek its exclusion. The only route to exclusion would be through Charter s. 24 – and that route is only available where the accused’s own Charter rights have been violated. …
[17] In several of the cases cited the Charter breach which led to the excision of information from the ITO or affidavit was of the accused’s own Charter rights. General statements in these cases to the effect that information obtained in breach of Charter rights will be excised should not be read as authority for the proposition that excision will result where information is obtained in breach of the Charter rights of a third party. …
[32] At paragraphs 20 and 21, Burrows J. noted:
[20] … It would be entirely inconsistent with the individual and personal nature of Charter rights and freedoms and the individual and personal nature of the enforcement provision of the Charter to permit a person to seek a remedy for himself in respect of the infringement or denial of another person’s Charter right.
[21] At trial, evidence relevant to the question of the guilt or innocence of the accused will not be excluded because it was obtained through the violation of the Charter rights of a person other than the accused. I can see no justification for applying a different rule on the review of an order giving prior judicial authorization to a search or wiretap.
[33] At paragraph 24:
[24] … The point of the review process is to assess whether the authorizing judge could have validly granted the authorization on the information validly before him. Relevant information obtained without any violation of the accused’s Charter rights is validly placed before the authorizing judge since neither the Charter nor anything else creates a legal means of excluding it. To exclude it because of a violation of the rights of someone not before the court and not seeking any remedy on the basis that these features of the situation would be taken into account later at trial, is entirely inconsistent with the principles applicable to the review application.
[34] In the conclusion of the decision in Croft:
[33] For the reasons set out above I conclude that in the Garofoli reviews in this matter:
a) The accused cannot seek the excision from the affidavit of information obtained through the violation of the Charter rights of a person other than the accused seeking the excision.
b) The accused has standing to seek the excision of information obtained through the violation of the accused’s own Charter rights, including his s. 8 right to be secure from unreasonable search and seizure and his s. 7 and 11(d) rights to a fair trial.
c) The accused has standing to seek the excision of information obtained illegally, such as the text messages which I have held were obtained without proper authorization, on the ground that inclusion of the information so obtained would render the Garofoli process unfair on the basis of the common law abuse of process principles.
[35] He further submits that in Vu, the judge permitted the defendant to apply for an order excluding evidence; however, the judge noted that standing could be granted, “… if the search implicated her reasonable expectation of privacy”. (paragraph 15)
[36] Similarly he notes that in Riley, Dambrot J. referenced Grant, that information that infringed a Charter right must be disregarded. In Riley, he noted that there was information in the affidavits that was obtained in a manner that violated Riley’s constitutional rights.
[37] In Brown, cited in Guindon, the judge in allowing exclusion found as a matter of fact in his conclusion that “none of the information obtained by the police pursuant to the … search warrants is property that any of the Applicants had an expectation of privacy in and it therefore does not attract s. 8 Charter protection”.
Analysis
[38] The Court of Appeal dealt with the issue of unconstitutional conduct and excision from an ITO in Mahmood, cited by the Applicant. In noting that an accused (Sheikh) could not seek excision of material linked to a search of four cellular telephone companies’ accounts to determine customers who accessed specific cellular telephone towers, at paragraphs 115 – 117, the Court dealt with the relevance of prior unconstitutional conduct:
[115] Prior unconstitutional conduct is relevant in two discrete contexts in this case. The first has to do with excision from the ITO of information obtained by unconstitutional means. The second relates to the influence of prior unconstitutional conduct on the application of s. 24(2) to evidence obtained later in the investigation and not directly as a result of the previous constitutional infringement.
[116] The parties agree about excision. Information obtained by unconstitutional means must be excised from the ITO on [page667] Garofoli review and what remains, as amplified on review, must be assessed to determine whether the warrant could have issued: Araujo, at para. 52; Wiley, at pp. 273-74 S.C.R.; and R. v. Grant, 1993 SCC 68, [1993] 3 S.C.R. 223, [1993] S.C.J. No. 98, at p. 251 S.C.R.
[117] Prior unconstitutional conduct may also have an impact on the decision about admissibility of evidence obtained by later Charter infringement, at least where there is a sufficient nexus between the prior infringement and the later gathering of evidence: R. v. Strachan, 1988 SCC 25, [1988] 2 S.C.R. 980, [1988] S.C.J. No. 94, at pp. 1005-1006 S.C.R.; Grant (1993), supra, at pp. 254-55 S.C.R.; Wiley, at p. 278 S.C.R.; and Plant, at p. 299 S.C.R.
[39] In order to excise information from the ITO based on a s. 8 breach, the Applicant must establish on a balance of probabilities that he had a privacy interest in the information.
[40] In the cases referenced by the Applicant, where excision has been granted, a breach of a Charter right was found. The law as determined in the trilogy of Plant, Wiley and Grant, relied on by the Applicant, is not challenged by the Crown; however, as noted in Chang (paragraph 35), “each of those cases involved the breach of the applicant`s own Charter rights and the court excised the information on that basis”.
[41] In Shayesteh, the Court granted standing to a co-accused. The appellant’s own calls were intercepted, and on that basis Charron J.A. (as she then was) found that he had standing because he had an expectation of privacy with respect to those calls. I take from this case that for Mr. Ritchie to obtain standing, he must establish an independent privacy interest in the messages to Mr. Tsekouras.
[42] In Riley, Justice Dambrot excised information in affidavits that were obtained in a manner that violated Mr. Riley’s constitutional rights.
[43] Similarly, in Brown, the judge noted that in examining a s. 8 issue, the court is required to decide whether a person has a reasonable expectation of privacy. In that case, LaForme J. (as he then was) found that the applicant’s rights to communicate in private were intruded on by the state.
[44] In Vu, Justice Trafford stated at paragraph 15:
“A defendant, such as Ms. Vu, may apply for an order excluding evidence under 24(2) of the Charter on the basis of a denial or infringement of her rights under s. 8 of the Charter if the search implicated her reasonable expectation of privacy.”
In that case, Justice Trafford found she had standing to challenge the use of her own private communications.
[45] In Atkinson, Desotti J. considered the question of whether the arrest of one party was made without reasonable and probable grounds, and whether the accused had status to present any challenge as to the reasonableness of the evidence in support of the arrest and search of the other party’s motor vehicle. He referenced paragraph 45 in Edwards, and after finding that those factors were not present, he stated:
[32] As a matter of fact and law, none of the aforementioned criteria are present on the facts before me on this voir dire. Moreover, even an unlawful arrest of Douglas Bingham would not enhance or elevate the status of the accused Robert Atkinson and create a potential s. 8 Charter infringement.
[46] At paragraph 34:
[34] However, the accused could not challenge the sufficiency of the evidence or the reasonableness of the grounds in support of this arrest (see R. v. Chang). There is no personal right or nexus between the arrest of Bingham and this accused, Robert Atkinson. Even on the broader concept of conspiracy, as stated in a decision of the British Columbia Court of Appeal in R. v. Cheung, the added ingredient of conspiracy “cannot imbue another person with vicarious personal rights.”
[47] In Shayesteh, the court rejected the Crown’s submission that Edwards and Pugliese should be relied upon; however, the court noted that those cases could be distinguished as the appellants in both cases were unable to establish that they had an expectation of privacy, and consequently they could not argue that their rights had been violated. It was the expectation of privacy that was sufficient to give grounds to challenge the legality of interceptions. I interpret this to mean that Edwards and Pugliese remain the law where there is no expectation of privacy found.
[48] I reference again the decision in Chang where, at paragraph 35, the court states:
[35] The appellants rely upon R. v. Plant, 1993 SCC 70, [1993] 3 S.C.R. 281; R. v. Wiley, 1993 SCC 69, [1993] 3 S.C.R. 263 and R. v. Grant, 1993 SCC 68, [1993] 3 S.C.R. 223. The aforementioned trilogy of cases asserts that information obtained as a result of unlawful activity by the police should be excised by a reviewing court in determining the validity of a search warrant. However, each of those cases involved the breach of the applicant’s own Charter rights and the court excised the information on that basis. The trilogy is distinguishable from the case at bar in that the alleged unlawful evidence obtained as a result of the Quebec Immigration Authorization was not obtained as a result of a violation of the rights of either of the appellants. Indeed, the appellants do not cite any cases in which a reviewing court excised information from an affidavit in support of a wiretap authorization where the impugned information was obtained as a result of the breach of a third party’s rights.
[49] In Guindon, Justice Bird rejected the Crown’s submission that Croft and Atkinson found that excision could be sought. I agree with that determination. However, in Croft the basis for standing to seek incision was under the common law doctrine of abuse of process. In Atkinson, the rationale was based on false or misleading statements. I distinguish Guindon on the basis that Bird J. found that “There is no question that all of the applicants have standing to challenge the validity of the Part VI authorizations”, and that, “Likewise, Mr. Pammett has standing to challenge the Production Order to obtain subscriber records in relation to phones he used”.
[50] Justice Bird then relied on Grant, Plant and Wiley – all cases in which a violation of the accused’s rights were found – to allow the applicants to challenge the legality of the evidence resulting orders impacting on their privacy interests.
Conclusion
[51] In considering the decision in Schertzer, which relies on Duhamel, and the decision in Thompson, I am not satisfied that I must find that, absent any other evidence, the interlocutory ruling of Wright J. in the search of the Tsekouras phone is binding. This case is distinguishable from Guindon, where Bird J. made the ruling herself in the course of the trial.
[52] My review of the above cases leads me to the conclusion that to determine whether there is standing to challenge the ITO or the affidavit to obtain the search warrant I must first consider whether there has been a breach of a Charter right. That right must be personal to the accused (Edwards).
[53] The cases suggest to me that to have standing to seek excision of information or evidence obtained from an illegal search of someone else’s phone, the accused must establish that he had an independent right to privacy in the evidence obtained as a result of that search.
[54] Further, as noted in Nguyen, “if the evidence is admissible against (Tsekouras) regardless of a breach of his s. 8 rights, reference to such evidence in the ITO is likewise admissible against him, and others whose rights were not violated”. (paragraph 286) If there is anything that resulted from a violation of Tsekouras’ rights, absent a violation of his own personal rights, Mr. Ritchie has no status to object to its inclusion in the ITO.
[55] With respect to the issue of exclusion of some parts of the ITO for the Production Order and search warrant, the only basis for doing so is under s. 8, the breach of the Applicant’s privacy rights. The Applicant has not sought relief under s. 7 or s. 11. Before any relief is granted under s. 24(2), the Applicant must establish a breach of his s. 8 rights: Edwards.
[56] In this case, I have found that there was no expectation of privacy in Mr. Ritchie’s messages to Mr. Tsekouras, therefore, on the basis of Edwards, no breach of his s. 8 rights to provide a remedy under s. 24(2).
[57] He has not established entitlement to seek excision of information from the ITO or search warrant.
______”original signed by”
The Hon. Mr. Justice T.A. Platana
Released: February 12, 2016
CITATION: R. v. Keith Ritchie, 2016 ONSC 1092
COURT FILE NO.: CR-13-0081
DATE: 2016-02-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and -
Keith Ritchie,
Applicant
REASONS ON EXICISON
Platana J.
Released: February 12, 2016
/mls