CITATION: R. v. Artis, 2016 ONSC 2050

COURT FILE NO.: CRIM J (F) 132/14

DATE: 2016 03 24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Sam Weinstock, Counsel for the Crown

• and -

SHANE ARTIS

Steven Safieh, Counsel for the Accused

REASONS FOR RULING

Bloom, J.

I INTRODUCTION

[1] The Accused is charged with importing heroin, possession of heroin for the purpose of trafficking, and conspiracy to commit each of those offenses. He has brought an application under s. 24(2) of the Charter to exclude evidence based on a violation of his s. 8 Charter rights arising from a what he contends was the execution of an invalid search warrant on a cell phone. These are my reasons and ruling in this matter.

II THE FACTUAL BACKGROUND

[2] The RCMP were investigating a shipment consisting of two packages which were intercepted by Customs Officers at Heathrow Airport in London, England on September 28, 2013. The shipment concealed approximately 1.9 kilograms of heroin that was located inside the heel of several pairs of sandals. The shipment, which originated in Tanzania, Africa, was consigned to Shannon Worthman of 922 Dundas St. E., side door, Toronto, Ontario.

[3] On October 9, 2013 a controlled delivery was effected. A member of the RCMP, posing as a DHL courier company employee, attended 922 Dundas St. E. in Toronto where he knocked on an apartment door, spoke to the resident, and said he had a shipment for Shannon Worthman. The resident indicated that Worthman lived upstairs. The RCMP member then knocked on the upstairs door and a black man answered. The RCMP member said that he had a package for Shannon Worthman. The black male accepted it on her behalf and signed for it. Shannon Wortman and the Accused, the black male, left the premises a short time later and were arrested on First Avenue in Toronto for the importation of heroin.

[4] A cell phone was seized from Wortman by Constable Sheena Hawkins, and later, still the same day, a KGB statement was taken by Hawkins from Wortman during which two text messages were disclosed by her from the phone. Artis also gave a videotaped statement to the police on the day of the arrest. On January 27, 2014 the warrant to search the phone was issued based on an information to obtain sworn by Constable Dale Keeping of the RCMP.

[5] Those are the basic uncontested facts. I will examine the facts in further detail as I address the issues. I intend to address seriatim the following points: (1) standing of the accused to make the application at bar; (2) the alleged violation of s. 8 of the Charter resulting from what the Accused contends was the execution of an invalid search warrant; and (3) the application of s. 24(2) of the Charter in relation to the the product of the search.

III STANDING

(i) Governing Legal Principles

[6] In R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128 Justice Cory for the majority of the Supreme Court of Canada specified the criteria to be applied to determine standing in a case such as the one before me. He stated at para. 45 of those reasons :

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:

1. 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 52 (SCC), [1987] 1 S.C.R. 588, at p. 619.

2. Like all Charter rights, s. 8 is a personal right. It protects people and not places. See Hunter, supra.

3. 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.

4. As a general rule, two distinct inquiries must be made in relation to s. 8 . First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably. See Rawlings, supra.

5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, at p. 54, and Wong, supra, at p. 62.

6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:

(i) presence at the time of the search;

(ii) possession or control of the property or place searched;

(iii) ownership of the property or place;

(iv) historical use of the property or item;

(v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

See United States v. Gomez, 16 F.3d 254 (8th Cir. 1994), at p. 256.

7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.

(ii) Evidence Admissible on the Standing Issue

[7] A further issue has arisen as to the evidence which is admissible on the question of standing. The Crown argues that the rules of evidence applicable at a trial proper apply, thereby rendering inadmissible both the evidence taken by the police by videotaped statement from the Accused and by KGB statement from Ms. Wortman, as well as the evidence in the information to obtain the search warrant at issue.

[8] The evidence on an application, such as the one at bar, to exclude evidence under s. 24(2) of the Charter for violation of s. 8 is called on a voir dire. Typically the applicant, who is an accused, calls evidence to prove misrepresentations in the information to obtain the warrant, and the Crown calls evidence to demonstrate that any misrepresentations were in good faith. The reviewing judge examines the information to obtain and the evidence called by the parties in applying the test cited in the following passage by Justice Lebel on behalf of the Supreme Court of Canada at paragraph 51 of R. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992:

This is the starting place for any reviewing judge, as our Court stated in Garofoli, supra, at p. 1452:

The reviewing judge does not substitute his or her view 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, non-disclosure, 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. [Emphasis added.]

[9] The information to obtain and the evidence called is considered not only in the determination of whether the search warrant was validly issued, and, therefore, whether a violation of s. 8 occurred because it was not, but also on the issue of the application of the s. 24(2) criteria which include good faith. Standing is often an issue also on the voir dire.

[10] I see no reason in principle or based on authority why the evidence in the information to obtain should not be used on the standing issue. In the case at bar the information to obtain recited evidence from the KGB statement of Wortman to the effect that the cell phone in question belonged to the Accused, Artis, and was shared by both of them. There was also evidence recited from Wortman’s KGB statement and the Accused’s videotaped statement which taken together was probative that his telephone number was that of the cell phone. The Crown argues that this evidence is inadmissible as hearsay, and in the case of Wortman’s declarations subject to frailty given Wortman’s motive to exonerate herself. While that motive, in my view, goes to weight, the declarations emanating from Wortman and the Accused as contained in the information to obtain are admissible on the standing issue. Moreover, the same evidence was called before me when the KGB statement of Wortman and the videotaped statement of the Accused were placed in evidence; this evidence was also admissible on the standing issue. The Accused argued for the admissibility of the evidence on the basis I have outlined above. In summary the evidence in the information to obtain, as well as the KGB statement of Wortman and the videotaped statement of the Accused, were admissible on the s. 8 and s. 24(2) issues including standing.

[11] Additional relevant evidence on the issue of standing is the material seized from the cell phone under the search warrant. It included, among other things, text messages apparently to and from the Accused and what Constable Keeping identified as a photograph of him. These items are circumstantially probative of the repeated use by the Accused of the phone (see R v. Emes, 1999 CarswellOnt 1018 at para. 37; affirmed by the Ontario Court of Appeal on June 26, 2001, Docket C32422).

(iii) Determination of Standing Issue in Case at Bar

[12] Based on the application of the factors set out in Edwards, supra, I find that the Accused has standing to make the application under s. 8 and s. 24(2) of the Charter. There is strong evidence, as noted, of his historical use of the phone; and there is evidence in Wortman’s KGB statement, supported by his own evidence of the telephone number, that he owned the phone. As the Supreme Court of Canada stated in R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631 at paras. 22 to 24, exclusive access is not required to establish a reasonable expectation of privacy; Wortman’s use of the phone does, therefore, not negate the Accused’s standing.

IV S. 8 OF THE CHARTER AND THE SEARCH WARRANT

[13] The Accused argues that the search warrant executed on the cell phone was not supported by the information to obtain as analyzed in accordance with the test cited in the above excerpt from the decision of the Supreme Court of Canada in Araujo; and that consequently the search of the phone was a violation of his s. 8 Charter rights. The Crown’s response, in substance, is that not only is there no need to excise portions of the information to obtain in accordance with the applicable test, but that the warrant is to be sustained even if excision is made.

(i) Governing Legal Principles

[14] I have set out above the test which I must apply in examining the information to obtain.

[15] In R.v. Ngo, 2011 ONSC 6676 at paras. 34 and 35 Justice Hill elaborated on the principles to be used in the application of that test:

[34] In performing its role of constitutional review of an ITO, various instructive guidelines have been applied by courts including:

(1) The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v. Campbell, 2010 ONCA 558, at para. 45. (aff’d, 2011 SCC 32).

(2) “[T]he 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”: R. v. Nguyen, 2011 ONCA 465, at para. 57.

(3) As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.)(QL), at para. 135:

The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, a common sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant (1999), 1999 3694 (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168 (Q.L.), 150 C.C.C. (3d) vi); R. v. Chan, 1998 5765 (ON CA), [1998] O.J. No. 4536 (Q.L.) at para. 4, 40 W.C.B. (2d) 143 (C.A.); R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 (Q.L.) at para. 15-18, 19 W.C.B. (2d) 194(C.A.); Simonyi Gindele et al. v. British Columbia (Attorney General) (1991), 1991 984 (BC CA), 2 B.C.A.C. 73 (C.A.) at 79.

(4) Police officers are not legal draftspersons and cannot, in an ITO, be expected to “spell out things with the same particularity of counsel”: Re Lubell and the Queen (1973), 1973 1488 (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.), at p.190; R. v. Durling(2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19; R. v. Sanchez (1994), 1994 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364; Re Chapman and the Queen (1983),1983 3587 (ON SC), 6 C.C.C. (3d) 296 (Ont. H.C.), at p. 297.

(5) It will not be surprising that an ITO will have some flaws – “[f]ew applications are perfect”: Nguyen, at para. 58. The question remains whether the core substance of the ITO could support the justice of the peace’s exercise of discretion to issue the warrant.

(6) While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITO affiant need not attempt to replicate a Crown disclosure brief – the document should be clear, concise, legally and factually sufficient, and “need not include every minute detail of the police investigation”:C.B.C. v. A.-G. for New Brunswick (1991), 1991 50 (SCC), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562; R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.), at p. 470; R. v. Ling (2009), 2009 BCCA 70, 241 C.C.C. (3d) 409 (B.C.C.A.), at para. 43 (leave to appeal refused, [2009] S.C.C.A. No. 165).

[35] Central to the current application is the concept of reasonable grounds to believe. In the context of a search warrant ITO, the overarching principles may be summarized as follows:

(1) The application must disclose reasonable grounds or credibly-based probability regarding the essential statutory prerequisites. This standard of reasonable probability does not equate to proof beyond a reasonable doubt or to a prima facie case (R. v. Debot (1989), 1989 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.), at p. 213) “or even on a balance of probabilities”: R. v. Jacobson (2006), 2006 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22. Accordingly, reasonable grounds “are not proof absolute” though they must be more than mere suspicion: R. v. Smith (1998), 1998 ABCA 418, 126 C.C.C. (3d) 62 (Alta. C.A.), at p. 77.

(2) Whether an ITO affiant subjectively had grounds of belief, and whether those grounds reasonably existed in an objective sense, is a fact-specific determination in each case.

(3) Grounds of belief are to be considered in their totality, not isolated out for independent evaluation. The point was made in Campbell, at para. 57:

Considered independently each of these grounds may not have justified the authorization. However, a justice of the peace could have found from their cumulative effect that there were reasonable grounds to issue the warrant.

See also R. v. Nguyen, 2007 ONCA 24, at para. 4: (“The cumulative effect of the information demonstrated the existence of reasonable and probable grounds to believe that a grow operation would be found inside the house”).

(4) “It is trite law that an applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in the ITO supporting the request” for a search warrant: Nguyen (2011), at para. 48. In R. v. N.N.M. (2007),2007 31570 (ON SC), 223 C.C.C. (3d) 417 (Ont. S.C.J.), at para. 320, the court stated:

Because a search warrant application is generally an ex parte application, there is a "legal obligation" to provide "full and frank disclosure of material facts" with the relevant facts set out "truthfully, fully and plainly": Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at 469-470 (emphasis of original). A justice can only perform the judicial function of issuing a warrant if "provided with accurate and candid information": R. v. Hosie (1996), 1996 450 (ON CA), 107 C.C.C. (3d) 385(Ont. C.A.) at 399; R. v. Agensys International Inc. (2004), 2004 17920 (ON CA), 187 C.C.C. (3d) 481 (Ont. C.A.) at 491. The "requirement of candour is not difficult to understand; there is nothing technical about it": R. v. Morris (1998), 1998 1344 (NS CA), 134 C.C.C. (3d) 539 (N.S.C.A.) at 551. An affiant for a warranted search is under a duty to avoid drafting which attempts to trick the reader, for example by the use of boiler-plate language, or which could mislead the court "by language used or strategic omissions": Araujo, at 470. Careless language in an ITO "deprives the judicial officer of the opportunity to fairly assess whether the requirements of a warrant have been met" and "strikes at the core of the administration of justice": Hosie, at 398-400.

(5) The affiant’s experience is relevant to the assembly of investigative facts and their promotion as affording reasonable grounds of belief. This principle was described at para. 68(6) of the Cunsolo case in these terms:

Because a trained officer is entitled to draw inferences and make deductions drawing on experience (R. v. Jacques and Mitchell (1996), 1996 174 (SCC), 110 C.C.C. (3d) 1 (SCC) at 12), a reviewing court must take these factors into account: R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (C.A.) at para. 4; R. v. Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501;R. v. Juan (2007), 2007 BCCA 351, 222 C.C.C. (3d) 289 (BCCA) at para. 19; R. v. Tran, 2007 BCCA 491, [2007] B.C.J. No. 2341 (C.A.) at para. 12; R. v. Mouland, 2007 SKCA 105, [2007] S.J. No. 532 (C.A.) at paras. 26-27; R. v. Ingle, [2007] B.C.J. No. 2024 (C.A.) at para. 53; R. v. Rajaratnam (2006), 2006 ABCA 333, 214 C.C.C. (3d) 547 (Alta. C.A.) at 559; R. v. Grotheim, 2001 SKCA 116, [2001] S.J. No. 694 (C.A.) at para. 30; R. v. Quillian, 1991 13109 (AB KB), [1991] A.J. No. 1211 (Q.B.) at para. 56.

(6) An issuing justice is entitled to draw reasonable inferences from stated facts and an informant is not obliged to underline the obvious: Lubell, at p. 190.

(7) A court considering the issuance of a search warrant is entitled to draw “reasonable inferences:” R. v. Schiers,2003 NSCA 138, [2003] N.S.J. No. 453 (C.A.), at para. 15; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 20, 27; R. v. Jackson (1984), 1983 244 (BC CA), 9 C.C.C. (3d) 125 (B.C.C.A.) at p. 131; Re Lubell, at p. 190; R. v. Sanchez (2004), 1994 5271 (ON SC),93 C.C.C. (3d) 357 (Ont. Ct.-Gen. Div.), at pp. 365, 370; R. v. Church of Scientology (No. 6) (1987), 1987 122 (ON CA), 31 C.C.C. (3d) 449 (Ont. C.A.), at pp. 514-5 (leave to appeal refused, [1989] 1 S.C.R. vii).

[16] Since the search in question involved a purported search incident to arrest of a cell phone, the principles applicable to such searches articulated by the Supreme Court of Canada in R. v. Fearon, 2014 SCC 77, [2014] 3 SCR 621 are of central concern to my analysis. Justice Cromwell for the majority stated the following at paras. 16, 46, 55, 56, 57, 58, 75,76, 80, 82, and 83:

[16] Although the common law power to search incident to arrest is deeply rooted in our law, it is an extraordinary power in two respects. The power to search incident to arrest not only permits searches without a warrant, but does so in circumstances in which the grounds to obtain a warrant do not exist. The cases teach us that the power to search incident to arrest is a focussed power given to the police so that they can pursue their investigations promptly upon making an arrest. The power must be exercised in the pursuit of a valid purpose related to the proper administration of justice. The central guiding principle is that the search must be, as the case law puts it, truly incidental to the arrest.

[46] The record shows how a prompt search of a suspect’s cell phone may serve important law enforcement objectives.

[55] In this respect, a cell phone search is completely different from the seizure of bodily samples in Stillman and the strip search in Golden. Such searches are invariably and inherently very great invasions of privacy and are, in addition, a significant affront to human dignity. That cannot be said of cell phone searches incident to arrest.

[56] Second, we should bear in mind that a person who has been lawfully arrested has a lower reasonable expectation of privacy than persons not under lawful arrest: Beare, at p. 413.

[57] Third, the common law requirement that the search be truly incidental to a lawful arrest imposes some meaningful limits on the scope of a cell phone search. The search must be linked to a valid law enforcement objective relating to the offence for which the suspect has been arrested. This requirement prevents routine browsing through a cell phone in an unfocussed way.

[58] All of that said, the search of a cell phone has the potential to be a much more significant invasion of privacy than the typical search incident to arrest. As a result, my view is that the general common law framework for searches incident to arrest needs to be modified in the case of cell phone searches incident to arrest. In particular, the law needs to provide the suspect with further protection against the risk of wholesale invasion of privacy which may occur if the search of a cell phone is constrained only by the requirements that the arrest be lawful and that the search be truly incidental to arrest and reasonably conducted.

[75] The requirement that the search of the cell phone be truly incidental to the arrest should be strictly applied to permit searches that are required to be done promptly upon arrest in order to effectively serve the purposes of officer and public safety, loss or destruction of evidence, or discovery of evidence. Three modifications to the general rules would give effect to this approach.

[76] First, the scope of the search must be tailored to the purpose for which it may lawfully be conducted. In other words, it is not enough that a cell phone search in general terms is truly incidental to the arrest. Both the nature and the extent of the search performed on the cell phone must be truly incidental to the particular arrest for the particular offence. In practice, this will mean that, generally, even when a cell phone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted. But these are not rules, and other searches may in some circumstances be justified. The test is whether the nature and extent of the search are tailored to the purpose for which the search may lawfully be conducted. To paraphrase Caslake, the police must be able to explain, within the permitted purposes, what they searched and why: see para. 25.

[80] A further modification is that the third purpose for which searches incident to arrest are permitted — the discovery of evidence — must be treated restrictively in this context. The discovery of evidence, in the context of a cell phone search incident to arrest, will only be a valid law enforcement objective when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. Only in those types of situations does the law enforcement objective in relation to the discovery of evidence clearly outweigh the potentially significant intrusion on privacy. For example, if, as in this case, there is reason to think that there is another perpetrator who has not been located, the search of a cell phone for that purpose will be truly incidental to the arrest of the other suspects. As Det. Nicol testified, there were matters that needed to be followed up immediately in this case. If, on the other hand, all suspects are in custody and any firearms and stolen property have been recovered, it is hard to see how police could show that the prompt search of a suspect’s cell phone could be considered truly incidental to the arrest as it serves no immediate investigative purpose. This will mean, in practice, that cell phone searches are not routinely permitted simply for the purpose of discovering additional evidence. The search power must be used with great circumspection. It also means, in practice, that the police will have to be prepared to explain why it was not practical (and I emphasize that this does not mean impossible), in all the circumstances of the investigation, to postpone the search until they could obtain a warrant.

[82] Finally, officers must make detailed notes of what they have examined on the cell phone. The Court encouraged this sort of note keeping in Vu in the context of a warranted search: para. 70. It also encouraged that notes be kept in the context of strip searches: Golden, at para. 101. In my view, given that we are dealing here with an extraordinary search power that requires neither a warrant nor reasonable and probable grounds, the obligation to keep a careful record of what is searched and how it was searched should be imposed as a matter of constitutional imperative. The record should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. After-the-fact judicial review is especially important where, as in the case of searches incident to arrest, there is no prior authorization. Having a clear picture of what was done is important to such review being effective. In addition, the record keeping requirement is likely to have the incidental effect of helping police officers focus on the question of whether their conduct in relation to the phone falls squarely within the parameters of a lawful search incident to arrest.

[83] To summarize, police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with s. 8 where:

(1) The arrest was lawful;

(2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

(a) Protecting the police, the accused, or the public;

(b) Preserving evidence; or

(c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;

(3) The nature and the extent of the search are tailored to the purpose of the search; and

(4) The police take detailed notes of what they have examined on the device and how it was searched.

(ii) Application of Those Principles to the Case at Bar

1. Purported Search Incident to Arrest by Officer Hawkins

[17] At 12:23 pm on October 9, 2013 Wortman and the Accused were arrested. Constable Sheena Hawkins seized the cell phone from Wortman at the RCMP premises at the Lester Pearson International Airport, and at 3:13 pm she took at KGB statement from Wortman. During that statement Wortman disclosed two text messages on the phone from the Accused to a third party, she identified as Ray. These messages were sent at 10:48 am on October 9, 2013 and stated, “Yo, what’s good bro it here” and again at the same time, “It just came through whenever.” The officer testified that she believed that the two text messages were acquired during a search incident to arrest; she further testified that she did not seek Wortman’s consent for the search. The 2 messages in question were again acquired by Constable Sue Cowan who testified that she was unaware that Hawkins had already conducted her search. Cowan’s acquisition of the two messages was not disclosed in the information to obtain which was sworn by Constable Dale Keeping.

[18] I do not see a basis for finding that a consent search was conducted by Hawkins, nor am I of the opinion that Wortman was acting as a police agent when she provided to Hawkins the information regarding the text messages. I note that the Crown did not pursue in oral argument the point that Hawkins had conducted a consent search. I find that the governing principles regarding Hawkins’s review of the two messages are those set out above relating to search incident to arrest.

[19] In my view the search in question was promptly executed. It was also, according to the testimony of Officer Hawkins, for the purpose of acquiring evidence of the offense of importing heroin on which the Accused and Wortman had been arrested. Hawkins also testified that she understood that the search could only be within the time frame of the offense and not further back; the obtaining of the two text messages accorded with that stated limitation. Officer Cowan testified to the need to locate evidence promptly by such a cell phone search, before it could be destroyed on the phone, itself, by remote means. There were no notes made by Hawkins of the search in evidence before me; the notes requirement of the Fearon test enunciated by Justice Cromwell was, in my opinion, the only one not met by Officer Hawkins. It is true, as the Crown points out, that a videotape was made of her search, the KGB statement of Wortman, but it is not a substitute for detailed notes, especially on the issue of purpose of the search.

2. Other Alleged Inadequacies in the Information to Obtain

[20] The Accused also argues that additional defects existed in the information to obtain, namely: (1) omission of language indicating that the cell phone had been searched incident to arrest by Officer Hawkins; (2) the failure to mention that the general warrant obtained on October 7, 2013 during the investigation provided that a search warrant had to be obtained to search any cell phones seized (the general warrant, itself, was disclosed); (3) the failure to disclose the acquisition of the two messages by Officer Cowan; (4) misdescription of the cell phone as jointly owned by Wortman and Artis; (5) use of the word “learned” in a manner obscuring how the two text messages were discovered by the police; and (6) failure to disclose the common law spousal relationship between Artis and Wortman. I find that none of these matters were more than minor errors by police officers who were not skilled legal draftsman; in that regard I find support in the reasoning of Justice Hill in Ngo, supra. None of these aspects of the information to obtain individually or collectively could have resulted in a material misleading of the issuing justice. I note specifically that the omission of the acquisition of the two text messages by Officer Cowan must be seen in the context of the disclosure of the obtaining of those same messages by Officer Hawkins.

3. The Effect of Excision of the Two Text Messages from the Information to Obtain

[21] The Accused contends that the issuing justice could not have issued the warrant in question if the two text messages are excised from the information to obtain, as they must be having regard to the non-compliance with the Fearon requirements. I will now consider the validity of the warrant on the footing that the two text messages are to be excised. The Accused argues that in my assessment of whether the remaining parts of that document could have supported the search warrant, I must accord diminished evidentiary weight to the statements of Wortman because of her motive to point at the Accused in order to exonerate herself.

[22] An examination of the information to obtain without the two text messages reveals that there was evidence that 1.9 kilograms of heroin was concealed in a shipment originating in Tanzania, Africa and consigned to Shannon Worthman; that Wortman lived upstairs at 922 Dundas St. E., Toronto, to which street address the shipment had been sent; that the Accused accepted the shipment when it was the subject of a controlled delivery at the Dundas St. premises of Wortman; that the Accused and Wortman were arrested after emerging from that premises after the delivery; that the cell phone was seized from her after the arrest; that Wortman in a KGB statement asserted that the cell phone in question belonged to Artis; that in the same statement she asserted that Artis had told her that the shipment was for a friend and not to touch it; that in the same statement she had asserted that Artis had told her that a person named Ray had said that he was to be notified of the arrival of the shipment; that in that same statement she had identified the cell phone number as one matching the cell phone number the Accused gave as his own in his videotaped statement; and that based on the experience of the informant, Officer Keeping, as a drug investigator and based on discussions he had with senior drug investigators, a large shipment of heroin such as the one in question would be the work of a group of persons who would keep in contact before and after the arrival of the shipment by mobile phones such as the cell phone seized and similar hand-held electronic devices.

[23] As noted, the Accused argues that the declarations of Wortman must be discounted as to weight because of her motive to exonerate herself. He submits that her evidence must be assessed under the principles governing informants’ tips set out in R.v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140. In the case at bar Wortman’s evidence was not an informant’s tip; it was subject to the procedures set out by the Supreme Court of Canada for KGB statements; these procedures are directly aimed at enhancing credibility.

[24] I find that the authorizing justice could have granted the search warrant based on the information to obtain without the offending text messages. The evidentiary basis was clearly present, including the experience of drug investigators, a point cited with approval in Ngo, supra.

V S. 24(2) OF THE CHARTER

[25] In the alternative, assuming that the search warrant in question would not survive an excision analysis, I now intend to address the application of s. 24(2) of the Charter to the seized evidence.

(i) Governing Legal Principles

[26] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paras. 71 to 84 Chief Justice McLachlin and Justice Charron for the majority of the Supreme Court of Canada articulated principles which govern the application of s. 24(2) of the Charter:

[71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2) , viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2) , a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. …

(a) Seriousness of the Charter-Infringing State Conduct

[72] The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[73] This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.

[74] State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

[75] Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297, per Cory J. “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, 1989 109 (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, 1990 55 (SCC), [1990] 3 S.C.R. 3, at pp. 32‑33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter -infringing conduct was part of a pattern of abuse tends to support exclusion.

(b) Impact on the Charter-Protected Interests of the Accused

[76] This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter -protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

[77] To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. …

[78] Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.

(c) Society’s Interest in an Adjudication on the Merits

[79] Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law”: R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20. Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.

[80] The concern for truth-seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained (see R. v. Wray, 1970 2 (SCC), [1971] S.C.R. 272) is inconsistent with the Charter ’s affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence.

[81] This said, public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused’s interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.

[82] The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must therefore be weighed against factors pointing to exclusion, in order to “balance the interests of truth with the integrity of the justice system”: Mann, at para. 57, per Iacobucci J. The court must ask “whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial”: R. v. Kitaitchik (2002), 2002 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 47,per Doherty J.A.

[83] The importance of the evidence to the prosecution’s case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.

[84] It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. Indeed, Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society’s interest in its prosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus. As pointed out in Burlingham, the goals furthered by s. 24(2) “operate independently of the type of crime for which the individual stands accused” (para. 51). And as Lamer J. observed in Collins, “[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority” (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

(ii) Application of those Principles in the Case at Bar

1. Seriousness of the Breach

[27] The Accused argues that the police officers acted in bad faith. Inter alia he alleges that Officer Hawkins did not comply with legal principles applicable at the time in respect of cell phone searches; and that a cavalier attitude of the police to the law was demonstrated by violations of s. 10(a) and (b) of the Charter by Officer Cowan. With respect to s. 10(a), she advised the Accused only of his arrest on the charge of importation of a controlled substance without naming the other three charges he ultimately faced or the drug involved.

[28] Officer Hawkins testified that she had intended her search of the cell phone to be incident to arrest. I have ruled that it did not meet the notes requirement later stipulated by the Supreme Court of Canada in Fearon, supra. Moreover, the Accused makes a good argument that, because the phone was password protected, the search in question did not comply with the then applicable law articulated by the Ontario Court of Appeal in that case. However, I am not persuaded that Officer Hawkins acted in bad faith. She did not deliberately ignore a warrant requirement. Rather she erred in good faith in applying a developing area in the law.

[29] The Accused’s arguments regarding s. 10 (a) and (b) of the Charter concede that no evidence was obtained as a result of the alleged violations. Their relevance relates to ascribing bad faith to Officer Cowan and by extension to the police generally in their actions in this case. I am not persuaded that there was any infringement of s. 10(b). Moreover, any infringements of these provisions were not so egregious as to throw a pall of bad faith over police actions generally, especially when they admittedly produced no evidence.

[30] I have already addressed the alleged defects in the information to obtain other than the use of the two text messages. They were, in brief, minor and good faith errors.

2. Impact on the Charter-Protected Interests of the Accused

[31] The execution of the search warrant on the cell phone unquestionably was a serious intrusion on the Accused’s Charter-protected privacy rights.

3. Society’s Interest in an Adjudication on the Merits

[32] The evidence obtained by the search of the cell phone is reliable evidence very likely necessary to prove serious charges involving heroin, an extremely pernicious drug. It is not a series of statements, the reliability of which is undermined by coercive police conduct. Society has an interest in the admissibility of the evidence in question so that the truth of the charges faced by the Accused can be determined at trial.

4. Conclusion as to Admissibility

[33] Balancing the relevant considerations outlined above, I conclude that, even if there were a violation of s. 8 of the Charter as a result of the execution of an invalid search warrant, the evidence obtained should not be excluded; its admission would not bring the administration of justice into disrepute. I, therefore, dismiss the application before me.

Bloom, J.

Released: March 24, 2016

CITATION: R. v. Artis, 2016 ONSC 2050

COURT FILE NO.: CRIM J (F) 132/14

DATE: 2016 03 24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

SHANE ARTIS

REASONS FOR RULING

Bloom, J.

Released: March 24, 2016