CITATION: R. v. Bourdon, 2016 ONSC 2113

COURT FILE NO.: CR-14-0188-00

DATE: 2016 Apr 05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RENE RONALD BOURDON

Applicant

Andrew Scott, for the Crown

Mary Cremer, for the Applicant

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE G.W. TRANMER, SUPERIOR COURT OF JUSTICE, DATED MARCH 18, 2015

DECISION ON CHARTER APPLICATION TO EXCLUDE EVIDENCE

TABLE OF CONTENTS

I. INTRODUCTION ......................................................................................................... 1

II. BACKGROUND FACTS ............................................................................................ 2

III. THE EVIDENCE ........................................................................................................ 12

1. September 21, 2012 ............................................................................................ 12

2. September 24, 2012 ............................................................................................ 13

3. September 25, 2012 ............................................................................................ 14

a) 12:00 pm ......................................................................................................... 14

b) 12:15 pm.......................................................................................................... 16

c) 12:17 pm.......................................................................................................... 17

d) 12:25 pm.......................................................................................................... 18

e) Was there initial conversation?................................................................... 19

f) Front door ....................................................................................................... 21

g) Applicant is located ....................................................................................... 22

h) Applicant told to empty his pockets ............................................................ 24

i) Suspension warrant to be issued .............................................................. 25

j) Officer Lund (ROPE): the unauthorized phone ..................................... 31

k) Transport to Police Station .......................................................................... 33

l) Officer Lund executes the warrant ............................................................. 34

m) Cell phone search at PCCC ....................................................................... 34

4. Sexual Assault Investigation ............................................................................ 41

5. September 28, 2012 ............................................................................................ 42

6. October 3, 2012 ................................................................................................... 42

7. The Search Warrant ........................................................................................... 47

8. November 13, 2012: Applicant is charged with criminal charges .............. 49

9. Search by Detective Frawley pursuant to search warrant ........................... 50

IV. THE ISSUES .............................................................................................................. 52

V. POSITION OF THE APPLICANT ............................................................................ 53

VI. POSITION OF THE CROWN ................................................................................... 73

VII. SIGNIFICANT FINDINGS OF FACT ...................................................................... 90

VIII. ANALYSIS .................................................................................................................. 99

1. Section 10 Charter: Statements ...................................................................... 104

a) Grey................................................................................................................ 104

b) Golemiec....................................................................................................... 105

c) The Warrant and Arrest............................................................................... 105

d) Post Suspension Interview........................................................................ 109

e) Section 24(2) Charter.................................................................................. 114

f) Compliance s. 135.1.................................................................................... 115

2. Section 8 Charter: The Unauthorized Phone ............................................. 115

a) Section 8 Analysis ....................................................................................... 115

b) Fearon Analysis .......................................................................................... 121

c) Section 24(2) Charter ................................................................................. 126

d) Frawley Search ........................................................................................... 128

IX. DECISION ................................................................................................................. 129

CITATION: R. v. Bourdon, 2016 ONSC 2113

COURT FILE NO.: CR-14-0188-00

DATE: 2016 Apr 05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RENE RONALD BOURDON

Applicant

Andrew Scott, for the Crown

Mary Cremer, for the Applicant

HEARD: March 18, 19, 23, 24, 25, 26, 27, April 28, 29, May 11, 12, 13, 14, 15, November 23, December 16, 17 and 18, 2015, March 14 and 15, 2016

Tranmer J.

DECISION ON CHARTER APPLICATION TO EXCLUDE EVIDENCE

I. INTRODUCTION

[1] This is an application to exclude evidence of statements made by the Applicant and from a cell phone because of breaches of the Applicant’s Charter Rights, ss. 10(a) and (b) and s. 8.

[2] The Applicant is charged with nine Counts: Counts 1 to 8 and Count 12 of breaching conditions of a long-term supervision order originally imposed June 18, 2004. He is also charged with personation and two counts of sexual assault alleged to have occurred while the long-term supervision order was in full force and effect.

[3] The evidence on this defence application was called by the Crown. It consisted of the testimony of Sgt. B. Brooker (Brooker), a police officer who was assigned as the community corrections liaison officer at Portsmouth Community Correctional Centre (PCCC), of the Applicant’s parole officer Perry Grey (Grey), of parole officer Joe Jansen (Jansen), who was Mr. Grey’s backup for the Applicant and of Correctional Officer Andre Golemiec (Golemiec). These four witnesses were employed at PCCC and had responsibilities for supervising the offenders who resided there, including the Applicant. The Crown, also called two Kingston police officers, Lund and Williams, who were responsible for arresting the Applicant and transporting him to the police station, respectively, on September 25, 2012. The final witness on the application was Kingston Police Detective Frawley (Frawley), who was qualified as and testified as a forensic computer analyst, who gave evidence about the contents of certain cell phones relevant to the case, and in particular, two that were found in the possession of the Applicant on September 25, 2012.

II. BACKGROUND FACTS

[4] The Applicant was subject to a Long Term Supervision Order (LTSO) and to the Rules of the PCCC in Kingston. He was also bound to comply with instructions given to him by a parole officer respecting any conditions of his LTSO in order to prevent a breach of any condition or to protect society.

[5] At the relevant time, the Applicant was subject to a Long Term Supervision Certificate (LTSC), with a start date of November 8, 2005 and an expiry date of March 6, 2014. (Ex. 1).

[6] The LTSC read in part, as follows,

LONG TERM SUPERVISION CERTIFICATE

Name: BOURDON, Rene

FPS: 602987D

LTSO Start Date: 2005/11/08 Expiry Date: 2014/03/06

CONDITIONS OF LONG TERM SUPERVISION AND ACKNOWLEDGEMENT:

I fully understand and accept the conditions of my long term supervision (attached), any special conditions noted below or attached and any instructions given by my parole supervisor in respect to any condition of my release. I understand that if I violate them, my long term supervision may be suspended. I also understand that failure or refusal without reasonable excuse to abide by the conditions of the long term supervision order is an offence under 753.3(1) of the Criminal Code of Canada.

753.3 (1) An offender who is required to be supervised by an order made under paragraph 753.1(3)(b) and who, without reasonable excuse, fails or refuses to comply with that order is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Special Conditions

OTHER

1. Disclose any and all contact to your parole supervisor regarding females with whom you associate or attempt to associate.

Must abstain from drugs other than prescribed medications and over-the-counter drugs taken as recommended by the manufacturer.

Abstain from use of alcohol.

OTHER

1. Not to own, access, or possess pornography.

2. Possession of a cellular telephone will be permitted providing it does not have the capability of taking photographs, and providing it is used with a plan that provides detailed monthly billing in order that your parole supervisor can monitor your calls.

3. Not to have any access to the Internet or possess any computer that has Internet capabilities.

TO RESIDE AT A SPECIFIC PLACE

Must reside at a community correctional centre or a community-based residential facility approved by the Correctional Service of Canada.

I understand that the long term supervision certificate is the property of the parole board and must be delivered on demand of the parole board or of my parole supervisor.

Signed: Rene Bourdon May 24, 2012

Released offender – signature Date

CONDITIONS OF RELEASE

(Long Term Supervision Order)

The conditions that the parole board is deemed to have imposed in respect of any offender released on long term supervision are that you:

(a) on release, travel directly to your place of residence, as set out in your release certificate, and report to your parole supervisor immediately and thereafter as instructed by your parole supervisor;

(b) remain at all times in Canada within the territorial boundaries fixed by your parole supervisor;

(c) obey the law and keep the peace;

[7] The Applicant signed that LTSC. He was permitted to reside at PCCC pursuant to the LTSO and that Certificate.

[8] Jansen interviewed the Applicant on September 23, 2011, when he first arrived to reside at PCCC. The Applicant was on statutory release from a prior conviction at that point in time. They talked about the statutory release conditions, and Jansen pointed out to the Applicant that he was possibly already in breach of his conditions because there was a computer, a cell phone and alcohol in the motorhome, in which he had travelled to PCCC.

[9] Golemiec also interviewed the Applicant on September 23, 2012. He and the Applicant completed the intake package Ex. 32. In that package, which the Applicant signed, he acknowledged, “I have reviewed the Portsmouth Resident Information Guide and was given a copy.” The Guide was tendered as Ex. 33. It provided in part:

RESIDENT INFORMATION GUIDE

HOUSE RULES

PORTSMOUTH COMMUNITY CORRECTIONAL CENTRE

PERSONAL POSSESSIONS, ROOM AND LOCKER SEARCHES

Rooms will be routinely searched at a minimum of once every 30 days.

URINALYSIS

As a condition of your parole, you may have to provide a urine sample at certain times to be determined by your Parole Officer. You may also be asked to provide a sample, if we believe you are under influence of any unauthorized drugs or alcohol.

PICTURES, VCR MOVIES AND DVDs

... no pictures with nudity may be displayed and pornography is an unauthorized item.

CELL PHONES

Cell phones without camera capability (when purchased) are generally permitted but must be declared to your Parole Officer. It is your responsibility to notify your Parole Officer of any change in cell phone information. Offenders with cell phones must ensure they are in compliance with any special conditions imposed by parole board.

All cell phones used by residents are subject to scrutiny and review by CSC staff including call history, text messaging or other features on their phones.

Billing information and history must be available upon request including any phones used, borrowed or shared by residents i.e. phone contracts and/or billing to family members, friends, etc.

Any breach of these guidelines may result in confiscation of the cell phones as contraband.

SIGN-OUTS

Residents are required to utilize the log book located at the Commissionaire’s Desk to sign in and out of PCCC. A 24-hour clock is used and the specific address/location of where you are going is required. Failure to specify appropriate detail regarding your destination will lead to sanctions. Locations must be specified with sufficient detail for staff to be able to verify your location. Offenders are expected to plan their day in the community and accurately indicate their destination. If there is an unexpected change of destination, you are required to call Portsmouth CCC to advise the Commissionaire on duty of the change. The Commissionaire will make the changes in your sign-out book. It is not acceptable that you inform your Parole Officer or other staff at the PCCC after the fact of any changes to your destination.

All residents are prohibited from attending the two Tim Hortons on Princess Street located at 312 Princess at Clergy St. and 681 Princess at MacDonnell St., as well as the McDonald’s restaurant at 285 Princess Street.

Should staff discover that a resident has failed to accurately report his whereabouts or is associating with other PCCC offenders in the community, restrictions will be implemented and this may lead to suspension.

DISCIPLINARY ACTIONS

Disciplinary action will be taken when a resident violates any condition of release. This may include reduced curfew (RCA) and withdrawal of weekend privileges or suspension of your conditional release. The parole board must be advised of any violation.

[10] Golemiec testified the cell phone condition is one of the four or five rules he expands on. He would have explained that cell phones are permitted at PCCC as long as they do not have camera capabilities. This is a general house rule. Some of the individual residents may have further conditions surrounding cell phone use, but this would be discussed between the resident and his parole officer.

[11] Grey was assigned to be the Applicant’s parole supervisor after 1 or 2 weeks. The Applicant’s sentence under the LTSO resumed on January 9, 2012. Ex. 1 is dated May 24, 2012. It was signed by both Grey and the Applicant. It is not the original document, but a replacement because the Applicant lost the original one.

[12] Grey met with the Applicant on January 9, 2012. They reviewed his conditions set out in the LTSO. The officer testified that the Applicant “is well versed in his conditions. He knew exactly what his conditions were.” He testified they argued about the cell phone, before he got a cell phone. The Applicant also wanted the alcohol condition removed. He also wanted the wording concerning female contact changed. No changes to his conditions were ever made.

[13] They had conversations about the consequences of breaching his conditions. Grey told the Applicant that the onus was on him. If a breach occurred, it could be a criminal charge instead of an automatic revocation.

[14] With respect to the female contact condition, Grey told him that he would not be concerned with a simple “hi” in the hall. He told the Applicant that any relationship or friendship or progress into a relationship had to be reported. By way of example, the officer testified that the Applicant reported on May 18, 2012 that he had a contact with “Deb” at the Frontenac Mall. The officer told him that if that relationship changed from a simple “hi” then the Applicant needed to tell him immediately. Ex. 15 is a letter dated May 22, 2012 from the Applicant to Grey reporting the contact with Deb.

[15] With respect to the standard condition, “remain at all times in Canada within the territorial boundaries fixed by your parole supervisor”, Grey instructed the Applicant that he would have to stay within the Kingston city limits. He was told that he could only leave the Kingston city limits with a travel pass. The officer testified that he was very specific with the Applicant telling him to be very specific about where he was signing in or out to. It was explained to him that the consequences of breaching the territorial boundaries would be a criminal charge.

[16] Jansen testified that the parole officers would have almost daily interaction with the inmate residents. If Grey was off, then Jansen would take over the supervision of Grey’s assigned residents. Therefore, Jansen knew the Applicant very well. The Applicant would often go to Jansen to ask questions, seek advice, or seek permission.

[17] The Applicant was permitted to work outside of PCCC, at Corcan, as of March 12, 2012. On April 4, 2012, Grey attended at Corcan and observed that although the Applicant had signed out to Corcan, his car was not there. When the Applicant did show up at Corcan, Grey took him into a room and discussed signing in and where he was going. He told the Applicant that there could be a possible breach of the condition concerning territory boundary because he had signed out to Corcan and he had no permission to be anywhere else.

[18] Grey testified that initially the Applicant was not permitted to have a cell phone. They argued over that for quite a while. The officer felt that the Applicant's risk was still too great. He had to gain credibility. He permitted the Applicant to have a phone as of February 29, 2012. They met on that date and the officer told the Applicant that the cell phone would have to have detailed billing, that the officer would have to be provided with the password, that there was to be no Internet capability and that he was not to delete any text without the officer's approval. The approved telephone had the number [phone number 1]. It was a flip phone. The officer testified that he did not believe that there was ever a password on that phone. Grey informed the Applicant that the officer would monitor his text messages to see who he was contacting, such as females that he had not reported. The officer told the Applicant he wanted detailed billing so he could see all the phone numbers contacted. He asked the Applicant for the name of everyone he was calling. The Applicant understood these instructions and agreed to them. The Applicant was allowed to have one phone. There was never a discussion about a second phone, except as set out below on July 4, 2012.

[19] On March 2, 2012, the Applicant provided all of the phone numbers, who they belonged to, the cost per month and what was activated on the phone. Ex. 17 is a copy of the phone information provided.

[20] On March 20, 2012, the Applicant provided the officer with his statement concerning the phone usage. He saved all of his texts for the officer to view and he handed over the bill to the officer.

[21] On April 2, 2012, the officer told him that the phone bill was not detailed. The officer gave him the chance to have that changed.

[22] On April 11, 2012, Grey asked the Applicant to hand his phone over to him. The officer checked to see whether all of the in/out and text were legitimate. The Applicant was aware the officer was checking to see if he had violated his conditions by contacting females.

[23] On July 4, 2012, Grey examined the Applicant's new phone. The phone number was the same and the service provider was the same. Security looked at the phone on July 9 and it was seen to have a SIM card and could access the Internet. Therefore, the Applicant was instructed by Grey to return to the use of his original approved flip phone.

[24] On July 18, 2012, Grey reviewed all of the telephone bills for March, April, May and June. On the officer's instructions, the Applicant wrote out all of the telephone numbers and the people associated with those numbers. The Applicant also provided a list of the texts. Ex. 18, 19, 20 and 21.

[25] Ex. 23 is a handwritten note from the Applicant to Grey concerning his telephone.

[26] Ex. 24, 25 and 26 are examples of the handwritten notes that the Applicant provided to the officer concerning his whereabouts in the community for the months of March, April and May.

[27] The officer testified that he was never aware that the Applicant had two cell phones. They never discussed the Applicant having more than one phone. The officer was never aware the Applicant had any other telephone number than [phone number 1]. The officer testified that to his knowledge, the Applicant's cell phone did not have the capability of taking photographs.

[28] The Applicant reported another female contact to him named M.B. in late July 2012. The officer instructed him that he was to have phone contact only with her. Her name came up again on September 10. The Applicant said he did not know her last name, but that she went to NA. The officer told him he was not to have her in his car. The officer told him that it would be permitted for him to go to the coffee shop with her if the NA group was going there. The officer told him that he could only be in a public area with her. He told the Applicant that he was not permitted to be at her residence.

[29] The Applicant reported another female contact, E.C., on September 5. He reported that he wanted to be friends/associate with her. Grey made a note to himself to follow-up.

[30] The Applicant brought M.B.’s name up again on September 21. The officer said that he would see her the following week for a community assessment and that she was not to be in his car and that they could only be in a public place together. The Applicant told the officer that he did not know where she lived. The officer instructed the Applicant that until the community assessment was done, he was not allowed to visit her at her residence.

[31] The Applicant talked to the officer about M.B. again on September 24. He wanted the officer to do the community assessment on that day. The officer scheduled a meeting with M.B. for September 25, 2012 to occur at the Tim Horton's on Centennial Drive, which was close by U[...] Crescent. The officer testified that he specifically discussed and reviewed with the Applicant that he could not be with her anywhere except in a public place, that she was not to be in his car and that he was not to be at her residence. The Applicant repeated that he did not know where she lived.

III. THE EVIDENCE

1. September 21, 2012

[32] On Friday, September 21, 2012, at about 4:00 PM, Golemiec saw the Applicant's vehicle parked at U[...] Crescent. He wrote down the licence plate number to confirm whether the Applicant was allowed to be at that location at that time.

[33] On Monday, September 24, 2012, Golemiec arrived at PCCC at 6:50 AM and confirmed by checking the Commissionaire’s log book that it was the Applicant's vehicle he had seen. He passed the information, including the specific address, on to Grey because he knew that Grey was the Applicant's parole officer, and that the information would assist Grey in determining if the Applicant was permitted to be at that address or not. He knew the Applicant was on a LTSO.

[34] Grey had been receiving information that the Applicant had been seen in the community driving around in his vehicle with two unknown female persons during weeknights and weekends. Grey testified he was getting information from other parole officers and those parole officers were getting this information from other inmates. It is unknown as to when the officer started receiving this information.

[35] Grey testified the Applicant did not have permission to have anyone in his car and that he had not disclosed his contact or relationship with the two female persons. Grey contacted Officer Peirog (Peirog) to conduct surveillance on the Applicant. He wanted to follow-up and obtain independent corroboration of the allegations he had received from the other parole officers. Grey had no way of assessing the reliability of the information himself. It is likely that he contacted Pierog between September 21 and September 25, 2012. He was informed that such surveillance would not commence until September 27, 2012. Grey testified he would not have made the request for surveillance unless he had some concern that the Applicant was breaching his conditions. Grey testified that if this information could be confirmed, it would constitute a serious breach of the Applicant’s LTSO.

2. September 24, 2012

[36] On September 24, 2012, Officers Grey and Golemeic drove by the address of U[...] Crescent. The Applicant's vehicle was not present on that occasion. Grey testified that the purpose of this drive-by was to see if the Applicant was in breach of his LTSO and if the public was at risk. The officer testified that he was concerned about what was going on, but would not go so far as to say that he was investigating for a breach as of September 24. As of September 24, the address of U[...] Crescent had not been reported by the Applicant to Grey.

3. September 25, 2012: U[...] Crescent

a) 12:00 PM

[37] Grey testified that at about 12:00 PM, he received a telephone call from Corcan advising that the Applicant had left work for the day. Grey had not been informed of this in advance. He did not have permission from Grey to leave Corcan that day.

[38] After receiving the call, Grey checked the log book to see where the Applicant had signed out to. It said he would be at work all day, until 4:00 PM.

[39] Grey and Jansen were heading out for lunch so they decided to drive by the residence at U[...] which is where Golemiec had said previously that he thought he had seen the Applicant's car. If Golemiec had not mentioned this location then Grey would not have known about it.

[40] Grey testified he drove to the address because he and Jansen were going out to lunch together anyway, and he would never go to a residence by himself.

[41] Jansen testified that at about 12:00 PM, he and Grey were driving to lunch. Jansen was driving. Grey got the call from Corcan that the Applicant had signed out for the afternoon. Grey called the Commissionaire at PCCC to see if the Applicant had changed his whereabouts. He had not. They were driving up Centennial Drive and Grey asked him to drive by U[...] Crescent. Grey said he had information that the Applicant had been there on the weekend.

[42] Grey testified he phoned back to PCCC to speak to Brooker. He did this because he was not sure what he was going to get into and Brooker was their police connection. Grey's thought process was: why is he, the Applicant, here, what is he doing, and who is he with? A breach of a LTSO means separate criminal charges. Grey testified that Brooker was called because they would need police assistance to affect the detention and arrest of the Applicant. Grey testified that with all of the information he had received in the preceding days from his colleagues, he knew the Applicant was in jeopardy of breaching his LTSO. There was now a risk that the Applicant's risk to the community had “shot right up.”

[43] Jansen confirmed Grey had telephoned Brooker to come and give them a hand. Jansen testified the Applicant had breached his geographic condition of release. Jansen testified this was at about 1217 hrs. When he was asked as to why Brooker was called, he responded, “for our safety. We did not know who was there and what was up.” Jansen testified there was a possibility of a breach of the condition of the LTSO. Breaches are criminal. They were going to attempt to find out what was going on. Jansen thought there was a breach of the geographic condition.

[44] Grey testified that he was going to the residence to see if the Applicant was there, and to determine whether his risk to the community had increased.

b) 12:15 PM

[45] Brooker began his policing in Toronto in 1989. He transferred to Kingston Police in 1997. In 2012, he was assigned to the new Kingston Police position of Community Corrections Liaison Officer. He had an office at PCCC.

[46] At 12:15 PM, he received a phone call from Grey. Grey advised he was located at U[...] Avenue observing a car owned by the Applicant, located at an address unknown to him. Grey advised that he believed the Applicant was visiting a girlfriend.

[47] Brooker knew the Applicant was on a LTSO. He knew that he was a convicted sex offender and he knew the Applicant would have to report his relationships with females to his parole officer. He knew right away that it was possible the Applicant was breaching his LTSO. Brooker knew Grey had not approved this relationship and he also had an understanding that the Applicant would not be permitted to be at this location at this time.

[48] Brooker arranged for Golemiec to drive him to the location. During the drive, he learned from Golemiec that the officer had seen the Applicant's car on U[...] Crescent on the prior Friday or Saturday. Golemiec told him during the drive that he had told Grey about that. By the time he got into the car, Brooker knew it was possible the Applicant could be facing two possible breaches of his LTSO and that grounds existed for criminal charges.

[49] Golemiec testified he was in the lunchroom at PCCC at about 12:15 PM when Brooker asked him to take him, “you know where you saw the vehicle on Friday night, can you drive me there?” He testified that he was not sure if Brooker said to him, take me to U[...], or take me where you saw the car the other day. His note says that Brooker said to him, take me to U[...]. It was obvious to him the information he had given to Grey had been conveyed to Brooker.

[50] It was put to this officer that given what he had seen on September 21, and what he had done on September 24, he knew there was a potential that the Applicant was in breach of his LTSO. He said he did not know that, but the potential was there. He agreed that by that time he was driving to U[...], he knew there were concerns about the Applicant being there. He did not recall any discussion with Brooker while driving there.

c) 12:17 PM

[51] Grey testified that while driving to U[...], he noticed the Applicant's car drive from Centennial Avenue onto Waterloo Drive. He testified he did not see who was driving. They did not follow the car, but they went to U[...]. There, they saw the Applicant's car in the driveway. This was approximately 12:17 PM.

[52] Jansen testified that at the intersection of Centennial with Waterloo, the Applicant's car was facing south towards them. The Applicant's car is very noticeable, “it sticks out like a sore thumb.” Jansen testified that they followed the Applicant's car onto U[...] and saw it turn into U[...]. Jansen parked in the driveway in front of the house at U[...]. The officer testified that this would have been about 12:15 PM. His notes say that at 1217 hrs, “Drove by the house and his vehicle was there.”

[53] Grey testified that at this point in time, having seen the Applicant's car in the driveway, there was no doubt in his mind that the Applicant was in breach of his LTSO. At a minimum, the Applicant was in breach of his geographical condition. Grey and Jansen discussed their suspicions that the Applicant had breached his LTSO. Grey also testified that the Applicant's arrest at that point was not a certainty and he described it in terms of a possibility and as well as a probability.

d) 12:25 PM

[54] Grey testified that at about 12:25 PM, Brooker and Golemiec arrived at U[...]. He and Jansen had sat in the car waiting for Brooker to arrive. Grey did not know that Golemiec would be attending. Jansen confirmed this approximate time of Brooker's arrival.

[55] Jansen testified that upon their arrival at U[...], there was a possibility of the geographical breach. He admitted strong suspicions. However, he testified that they had to do “their due diligence” and determine whether there was any reasonable excuse for the Applicant’s presence there.

[56] Brooker testified that he arrived at U[...] Avenue around 12:22 PM and observed a vehicle that he believed to belong to the Applicant.

[57] He testified that he was there for security reasons. He acknowledged that if the Applicant was ultimately to be arrested, he would be able to do so. He conceded it was a possibility the Applicant was facing breaches of his LTSO, but he testified that it needed to be investigated.

[58] Golemiec testified that he and Brooker got to U[...] around 12:25 or 12:30 PM. He observed the same vehicle as he had seen on Friday parked there.

e) Was there initial conversation?

[59] Brooker testified that he observed Officers Grey and Jansen walk to the front door of the house at U[...]. He testified that Golemiec walked down the driveway to the rear of the house. Brooker stood where he could see both sets of officers. There was no conversation at the scene before this. Brooker testified he was there for security reasons, and if the Applicant was committing an offence, he could make an arrest.

[60] Grey said the four of them had a brief conversation, advising they believed the Applicant was in the house and they would go to the front door to see if he was there.

[61] Jansen testified that he said to the group, “Let's knock on the door and see what's going on.” When asked whether there was discussion as to who would go where, he responded that he and Grey would go to the door, Golemiec “went to the rear out of instinct.” Jansen believed the Applicant had breached his geographic condition, but he did not know if there was a good reason, “reasonable excuse”, for that. He also wanted to know who was there at this address.

[62] Golemiec testified when he got out of his vehicle, he was instructed by Jansen to go around to the back of the house. Jansen said to him, “Andre, you go to the back.” When asked whether prior to that he had been told why he was there, he responded that there was no discussion. The Applicant's car was there and he knew it had to do with the Applicant. He said he assumed they were there to see why or if the Applicant was there. He did not recall if he was told why he was to go to the back of the house, although he knew he was told to go there to look for the Applicant. He had a concern the Applicant was being investigated for a possible breach of his LTSO. He testified that he did not go there with the intention to detain or arrest. He went there because he was asked by Brooker to take him there. He agreed that if the Applicant was in breach, he understood the Applicant would be detained and arrested. He knew the breach of a LTSO could result in a criminal charge. It was suggested to him that Grey had told the group the Applicant was there to visit a female person and he was not authorized to do that. Golemiec did not recall that being said. It was put to him that Grey told the group the Applicant was not authorized to be at that location. He did not recall that being said either.

[63] Despite the variations in this testimony, it appears to be common ground that when Brooker and Golemiec arrived, Grey called all of them together to talk. The group collectively shared information about the Applicant. The four of them decided to approach the residence together. It was decided that Grey and Jansen would attend the front door of the residence and knock on the door. Golemiec would cover the back of the house and Brooker would position himself at the side. He would have a view of Grey and Jansen in the front and of Golemiec in the back. The purpose of this approach was to ensure all entrances to the residence were covered if the Applicant exited the house. Everyone would know about it and be able to detain him. The Applicant would not be allowed to leave and would be stopped. At this point, it was decided the Applicant would be detained and would have to talk to his parole officer before being permitted to leave the premises.

[64] Brooker was the only police officer on scene. He testified the Applicant was not free to walk out of the house, get into his car and leave until the parole officers had investigated.

f) Front door

[65] Brooker testified that Grey and Jansen spoke to a woman at the front door.

[66] Grey testified that Brooker, Jansen and he went to the front door to speak to the owner at 12:26 PM. Grey's intention was that they were going to bring the Applicant back to PCCC for conversation with the acting director to determine whether his risk had increased such that he would be suspended and an investigation would take place later on. He testified a lady answered the door. Jansen introduced himself as a parole officer and said they were looking for the Applicant. She said he was downstairs with the tenant. Grey testified that it looked to him like there was a lady in the basement. Grey testified that at this point, Brooker and Jansen and he were all at the front door.

[67] Grey had not granted permission to the Applicant to be at this location or with this female.

[68] Jansen testified that he and Grey knocked on the door at 12:26 PM. An older woman answered the door. Jansen asked, “Where is Rene?” She answered, “Who?” She looked down the stairs in her house. Jansen said, the fellow driving the car. The woman answered that he was downstairs with her tenant. Jansen said he saw a young looking girl look up the stairs and pullback.

[69] Golemiec said Grey and Jansen went to the front door. He thought Brooker was in the driveway. Golemiec followed the driveway to the back of the house. In cross examination, it was put to him that it was his job to make sure that if the Applicant was exiting, he could notify his colleagues. He said that was correct. Jansen was concerned someone might exit through the rear door. In cross examination, it was put to him that the Applicant would not be allowed to leave the premises without being investigated. He did not answer this question directly. He said he thought the Applicant came to him voluntarily. The Applicant was going to have to speak to his parole officer.

g) Applicant is located at U[...].

[70] Brooker testified that as Grey and Jansen spoke to the woman at the front door, he heard Golemiec announce that the Applicant was at the back of the house. He observed them walk from the back of the house up the driveway toward the front of the house. Officers Grey and Jansen left the front of the house and walked past him and the Applicant and Golemiec down the driveway toward the back door of the premises. He heard Grey comment to the Applicant, “what are you doing here”. He believes the Applicant responded, “Visiting a friend.” These comments were just in passing.

[71] Grey testified that as the woman at the front door stated the Applicant was downstairs with the tenant, he heard Golemiec say in the background, “I've got him.”

[72] Grey said that the next thing that occurred was that he and Jansen went to the back door and knocked. He denied that he made any comment to the Applicant, or that the Applicant responded as Grey walked past him to the back door.

[73] Jansen testified that as he was looking down the stairs and saw the young girl, he heard Golemiec yell, “He's here.” He stepped aside and saw the Applicant and Golemiec at the back corner of the house starting to walk up toward the front. The Applicant commented, “All crap, nothing going on.” All of the officers and the Applicant came together at the side of the house. Jansen instructed the Applicant to stay with Golemiec and Brooker. Jansen told the Applicant that he had possibly breached his condition for relationship and his geographic condition. There was no other conversation with the Applicant.

[74] Grey could see that the Applicant was with Golemiec and he would not be permitted to leave. The Applicant would be held at the scene by Golemiec and Brooker until Grey finished speaking with the tenant. Brooker testified he had no intention of letting the Applicant leave the premises until either Grey or Jansen had spoken to him. Jansen confirmed that had the Applicant decided to leave, it would have triggered legal consequences.

[75] Golemiec testified that when he was at the back of the house, he observed the Applicant leaving the basement through the walkout. He hollered to Brooker that the Applicant was coming out, “He's here.” His purpose in yelling that was so that they could investigate. He had decided to stop the Applicant himself. The Applicant came with him to the side of the house. He gave no instruction to the Applicant to do so. The Applicant was very compliant. Grey and Jansen came over to him. They had a brief discussion with the Applicant.

h) Applicant told to empty his pockets

[76] Golemiec testified that at that point, he asked the Applicant to empty his pockets and to give the items to him. The Applicant handed over to him a cell phone, a wallet, car keys and his keys to PCCC. He testified that the reason he asked the Applicant to empty his pockets was that he was not too sure what was going on. He wanted to see if the Applicant had any weapons. He did not tell the Applicant why he was asking him to empty his pockets. The Applicant did not ask any questions. He was compliant. The officer did not touch the Applicant physically or physically search him even though he had a concern for weapons. Golemiec testified that to him, there was a possibility the Applicant was going to be suspended based on firstly, that he had been requested to go with Brooker, and secondly, there were two parole officers at the location. It was put to this officer that he told the Applicant to empty his pockets because he knew the Applicant was going into custody. He responded that he assumed for some sort of breach of the LTSO. It was put to him that he took the Applicant's keys because he knew the Applicant was going into custody. He responded that it was a possibility, it looked like he was going into custody, “I knew there was a concern for a breach.”

[77] Golemiec acknowledged that he did not tell the Applicant that he was not going back to PCCC, that he was under investigation for breach of his LTSO and he did not give him his rights to counsel. He did not tell the Applicant why he was being detained. He did not tell the Applicant the police were coming.

[78] Brooker testified that he saw Golemiec make a request of the Applicant, asking him for his cell phone, wallet and keys. Brooker took no part in that process. This occurred in the driveway at the front of the house. Brooker did not touch the Applicant or receive property from him.

i) Suspension warrant to be issued

[79] Brooker testified that the Applicant was not free to leave at this point, and that if he had tried to leave, Brooker would have placed him under arrest. Brooker did not give him his right to counsel at this time and did not explain why he was being detained.

[80] Grey and Jansen had gone to the back door of the residence. Grey was trying to find out who the tenant was; why the Applicant was there; how long he had been there; and what their relationship was. This was to determine whether the Applicant's risk to the community had increased. At about 12:28 PM, a female answered the back door. They identified themselves and asked her who she was. She identified herself as M.B.. He asked her if she was the person he was to see at 2:00 PM that day for community assessment and she told him that she was. He asked her if the Applicant had been there before. She responded that he had been there 10 or more times. She said they were just friends. She said there was nothing sexual. She said they met 4 or 5 months ago in June or July. She said she was going to NA with the Applicant. This conversation lasted approximately 5 min.

[81] Jansen testified that the intent in going to the back door was to find out who the woman was and why the Applicant was there in regard to his reporting relationships, and geographic conditions. He said it was approximately 12:28 PM when they went to the back door. Grey asked the questions of her. She said that she and the Applicant had met 4 or 5 months previously. They had met through a person named A., who was an ex-resident of PCCC. She said they had physically met at the Frontenac Mall. She said that she had invited the Applicant to go to NA and they had gone a number of times. Grey asked her how many times the Applicant had been to her apartment to which she replied, 10 times. Grey asked her why he was there that day. She said that he had brought her lunch. He saw the lunch container.

[82] Both officers acknowledged that, at this point, they were in the throes of investigating the Applicant for breaching his LTSO.

[83] Grey testified, “At that point in time, we were busy doing what we were doing and we wanted to find out further information on whether it was- whether we should be suspending for protection of society or if there were possible breaches.”

[84] Jansen testified, “We were collecting information for the parole board, for our own purposes… We weren’t conducting a criminal investigation. We were conducting, collecting information with regards specifically to the conditions of release, the standard and special conditions of release, knowing that we’d be writing… a report to the parole board for an assessment for a decision to request, either if the decision’s made at that point to suspend him, to either release him or for laying of information… The way we collect that information, I believe is much different than how police do it. Our job is to collect the relevant information, the risk relevant information and report back to the parole board.”

[85] Jansen testified that once he formulated things in his mind, at 12:31 PM, he called PCCC and left a message for the acting director to call him. It was evident to him that M.B. had been in a relationship with the Applicant for some time and there was no reasonable excuse for him to be there, and therefore, he was in breach of his geographic condition. He spoke to the acting director at 12:32 PM. He informed him as to what had transpired. The acting director said there were grounds to issue a suspension and apprehension warrant, namely the Applicant was at a location that he had not signed out for and he was with a woman who had not been properly disclosed to his parole officer. She and the Applicant had been in a relationship for some time. The acting director was going to issue the suspension warrant so they could investigate. The acting director advised Jansen that he would issue a suspension and apprehension warrant for the Applicant. This was on the basis of the geographic location breach and the breach of failing to report a relationship.

[86] It is common ground that the warrant referred to is Ex. 31 titled “Warrant of Apprehension, Suspension and Recommitment to Custody of Long Term Supervision (s.135.1(1) ).”

[87] Jansen testified that at 12:33 PM., he informed Brooker and Golemiec that a suspension warrant was going to be issued by the acting director. Brooker said he would call ROPE. At this point, the goal was to take the Applicant into custody so that the parole officers could investigate further.

[88] Jansen testified that he then stepped back into the apartment and told Grey the suspension warrant had been issued. Grey finished talking to M.B. and they exited the apartment.

[89] Jansen testified that he and Grey joined Brooker, Golemiec and the Applicant in the driveway. He explained to the Applicant that a suspension apprehension warrant had been issued and the reasons were breaches of geographic condition and relationship condition. Jansen testified that he told the Applicant he had breached the reporting requirement concerning M.B., he was at a place he had not signed out to, and the acting director was issuing a suspension apprehension warrant. The officer testified the Applicant responded by saying, “Ya.” At this point, Jansen knew the Applicant was going to face the Parole Board of Canada, hereinafter referred to as the parole board, and he was going into custody.

[90] Grey testified that the acting director phoned him sometime after 12:30 PM to find out what was going on. Grey advised the acting director that they had found the Applicant at an address he had not disclosed and that he was not supposed to be at that address. He and the acting director decided to investigate if the Applicant's risk to the public had increased. The decision to suspend was made at that time.

[91] Grey testified that he and Jansen came back up from the apartment to the driveway at about 12:35 PM to where Golemiec and Brooker were standing with the Applicant. Grey testified that he and perhaps Jansen advised Golemiec and Brooker of the suspension.

[92] Grey testified that at this point he asked the Applicant, “Why are you here?” The Applicant responded, “To make sure she was going to make the CA (community assessment meeting) at 2 PM.” Grey testified that he asked this because the Applicant was not supposed to be there. The officer testified that in fact he hoped the Applicant was not going to be there. The officer was disappointed he was there.

[93] Brooker testified that at 12:33 PM, he was advised a suspension warrant was to be issued for the Applicant. He was not told the reasons for that warrant being issued. He told the Applicant he was under arrest for the apprehension and suspension warrant that was to be issued. He then advised the Applicant he had the right to retain and instruct a lawyer without delay, any lawyer he wished, and he gave the Applicant the telephone number for free legal advice. He testified that the Applicant seemed to understand this. Brooker also cautioned the Applicant not to say anything, but that if he wished to say anything, it could be taken down and used against him in court. The Applicant appeared to understand this. Brooker did not handcuff the Applicant.

[94] Brooker testified that after arresting the Applicant, he contacted ROPE to ask one of their officers to attend. He then went to speak to the owner of the house and then to the rear of the house to speak with the tenant.

[95] Brooker testified that grounds did exist at this point in time for two possible breaches of his LTSO. Brooker decided to speak to the two women to gather more information. He wanted to speak to Ms. M.B. to gather evidence of a potential crime and to investigate whether there was in an inappropriate relationship going on with the Applicant.

[96] Constable Lund (Lund) was the Kingston police officer who responded on behalf of ROPE. He testified that he received a telephone call at approximately 12:25 PM and was told there was a parole suspension warrant for the Applicant. He could not recall who he spoke to. He was told to attend at U[...] Crescent, that the Applicant had breached his parole and was to be arrested.

[97] Grey and Brooker went back to speak with M.B., leaving Jansen, Golemiec and the Applicant on the driveway.

j) Officer Lund (ROPE): the unauthorized phone

[98] Lund testified that he arrived at U[...] at 12:40 PM. When he arrived, Golemiec was standing close to the Applicant and informed him that the Applicant was in contravention of the conditions of his parole. At 12:40 PM, Lund placed the Applicant under arrest for the warrant for parole suspension. Lund was not told the reasons for the parole suspension. He acts on the warrant. The basis for him to make the arrest was being advised that there was a warrant for the Applicant's parole being suspended. He did not tell the Applicant the reasons for the parole suspension because he himself had not been told.

[99] The Applicant was then handcuffed and searched by Lund. He did a pat down search for officer safety. At the front of the Applicant, along the waistline, he felt something square that was concealed by the Applicant's shirt and pants along the belt line. He lifted the Applicant's shirt and retrieved the item from along the waistline. It was a smart phone. He held it and asked Golemiec if it was a concern, meaning was it in contravention of the Applicant's parole conditions. Golemiec responded that the Applicant should not have the phone. Lund gave the phone to Golemiec.

[100] Grey testified that after he had been back down in the basement apartment with Brooker, he came back upstairs around 12:55 PM. Lund was there. Golemiec advised him they had located a phone in the Applicant's waistband. This was of concern to Grey because the Applicant had reported only one phone to him. He did not know where that authorized phone was.

[101] Jansen testified that Lund arrived at 12:53 PM. He testified that he explained to Lund the warrant had been issued. He did not recall telling Lund what the grounds for the warrant were. He observed Lund place the Applicant in handcuffs. He thinks Lund told the Applicant he was under arrest. Jansen did not recall if the rights were given.

[102] Jansen testified that he did not hear Brooker advise the Applicant of his rights to counsel.

[103] Jansen testified that he saw Lund give the Applicant a pat down search. A smart phone was found inside the top of the Applicant's pants under his naval. Lund had lifted the Applicant's shirt up. Lund told them to take the phone. Golemiec reached down and took hold of the phone from the Applicant’s waistline. Jansen saw that it was a smart phone with a camera. He told Golemiec to take it as evidence because Jansen knew the Applicant was not allowed to have a phone with camera capability and he was not allowed to have a phone with Internet capability. Those were both conditions of his LTSO and rules of PCCC. Jansen said to the Applicant that he was not allowed to have that kind of phone.

[104] It is not disputed that this cell phone had not been previously disclosed to Grey by the Applicant and that the Applicant had not been authorized by Grey to have it. This phone shall hereinafter be referred to as the unauthorized phone.

[105] Golemiec testified that he did not talk to Lund when Lund arrived at the scene. He testified that he saw Lund search the Applicant. It was a pat down search. Lund located a cell phone in the front waistband crotch area of the Applicant. Golemiec testified he removed the phone from the crotch area of the Applicant at Lund's request. This officer believed the phone was unauthorized because it was being concealed and he saw that it had camera capability. He put this second phone in his pocket. He said the photographs Ex. 7B and 7C were photographs of that second phone. He testified that he never opened the phone or accessed it, intending to log it into the contraband control locker with the other items which the Applicant had handed over. He denied looking at the phone for contacts or pictures.

[106] Lund testified that after he had searched the Applicant, he read the Applicant his rights to counsel and the caution. Exhibit 30 is a copy of the police card for the rights to counsel and caution which he read the Applicant. The Applicant appeared to understand.

k) Transport to police station

[107] At 12:50 PM, Lund called for police transport to the police station. Constable Williams (Williams) arrived at 1:08 PM. Lund told Williams there was a parole suspension warrant. Williams left with the Applicant.

[108] Williams testified that he arrived at 1:04 PM. Dispatch had told him the Applicant was under arrest for parole suspension. When he arrived at the scene, Lund told him the Applicant was under arrest as of 12:40 PM and the arrest was on the strength of the warrant. The only information that Williams had was that the Applicant’s parole supervision was being revoked. Lund informed him that the Applicant had been cautioned and given his right to counsel.

[109] At 1:10 PM, Williams departed with the Applicant for the police station, arriving at 1:27 PM. In the course of the booking process, the Applicant wished to speak to counsel. At 1:37 PM, he spoke to his lawyer Ms. Quelch. That name and a phone number were noted in the officer’s book. He also had the name of M.B. noted, but no phone number. He has no memory or note as to whether the Applicant called Ms. M.B.. His belief is that the booking sergeant did grant the Applicant a second courtesy telephone call.

l) Lund executes the Warrant

[110] Lund testified that at 1:25 PM, he attended at PCCC and executed the parole suspension warrant, meaning that he signed it to confirm it had been executed. Ex. 31 is a copy of the warrant. The warrant is date and time locked 2012/09/25. 12:59. Lund did not confirm with the acting director at PCCC about the time that the warrant was issued. His belief was that at the time he arrested the Applicant, the warrant of suspension had been issued.

m) Cell Phone Search at PCCC

[111] Upon returning to PCCC, Grey wanted to see what was on the unauthorized cell phone that had been retrieved from the Applicant's waistline. Golemiec had it because, as the correctional officer, he was responsible for seizing property. Grey wanted to view the phone because of the Applicant's conditions of detailed billing, no access to Internet, no camera and to see if any of those conditions had been breached. He retrieved the phone from Golemiec. He was not previously aware of this phone and had not authorized the Applicant to have it. The Applicant had not provided detailed billing for it. It was not the Applicant's normal flip phone which had been reported to, authorized by and monitored by Grey. The officer was concerned that there were breaches of not disclosing the phone, Internet access, no detailed billing and camera capability. He and Jansen reviewed the phone. Brooker was present while they did so. He was there waiting to find out what they found on the phone.

[112] Grey conceded that before he looked at the phone, the Applicant was in police custody, no longer a resident of PCCC and potentially facing new criminal charges. There was no urgency to search the phone. It was secure under the control of Golemiec and there was no concern that evidence on the phone would be lost, altered or destroyed.

[113] Grey and Jansen testified that they had a duty to collect information to provide to the parole board within 30 days in the Assessment for Decision (A4D) report.

[114] Grey believes that the phone was on. The phone had Google and Yahoo on it, which to him meant that it had Internet access. It also appeared to have camera capability. There was a photo of M.B. standing naked, facing the camera. There was also a photograph of a vagina. There were text messages on the phone. While they were viewing, a phone call came in showing, “A.” Grey confirmed he had never been told about this phone by the Applicant.

[115] The officer testified that his authority to review the phone came is under “CCRA s.134-2.” He returned the phone to Golemiec.

[116] Jansen testified that during the drive back to PCCC with Grey, they discussed possible breaches, including the relationship with M.B., the geographical breach and the cell phone. They decided they would do a Google search on the phone. Jansen knew that Grey would be writing an A4D to the parole board asking either that the Applicant be released from the suspension warrant or for the laying of informations. He testified that he did not know that the cell phone had camera capability when he first saw it. He would need to look at it. The parole board would ask whether the camera worked. Jansen did not conclude the Applicant was in breach of this condition until he knew whether the camera worked or the Internet worked. He knows that cameras and Internet access on cell phones can be disabled.

[117] Jansen testified that all four officers namely, including Brooker, agreed the phone had to be searched. Brooker testified that he was not part of any such conversation.

[118] Jansen testified that they got back to PCCC at 1:20 or 1:25 PM. He first transferred his rough notes from the car log to his personal flip book.

[119] At 1:30 PM, the four officers reconvened in the lunchroom. Grey asked Golemiec to retrieve the phone. Grey, Jansen and Golemiec were going to review the phone that had been seized from the Applicant's waistline.

[120] At 1:31 PM, they started to review the phone. The purpose was to collect information to provide to the parole board. They were looking specifically for breaches, for example, porn, or did he take pictures of the PCCC and who was he in contact with. They wanted to see if the phone was connected to the Internet.

[121] Jansen knew that if there were breaches of his LTSO, it would quickly become a police matter.

[122] Jansen testified that he advised Grey how to search the phone because he was more experienced with phones and technology. He told Grey how to navigate the phone to get to the browser. He agreed that Grey was capable of doing a cursory search of the phone to see if the Applicant was breaching has LTSO. He acknowledged there was no need for him to be present for such a cursory search. He testified that with respect to searching the cell phone, they were not interested in any information regarding the relationship with M.B.. She had already told them there was a relationship for 4 or 5 months in duration, that they were going to NA meetings and that he had been at her house about 10 times.

[123] As to how they reviewed the phone, he testified that it was on. He could not recall if the phone had a password that was required to access it. He said that Grey just had to swipe the phone to wake it up. Grey swiped it and the first picture was of a woman's vagina. Grey tried to swipe it again and there was a picture of M.B. naked on a couch or bed, spread eagle. Jansen told Grey how to get to the browser to see if it was active. He denied that they were searching the phone to see if there were pictures on it. They saw the two pictures and decided that the camera worked.

[124] Jansen said that after they saw the two pictures, and concluded the camera worked, they went to Home and typed in Google, and then a word and observed that the Internet was connected. He testified that they were not looking for porn on the camera at that point.

[125] A phone call came in on the phone showing, “A.” They did not answer the call.

[126] Jansen testified that they concluded the phone had Internet, and camera capability and that the Applicant had this phone which he had not disclosed. Jansen had also seen there were numerous text messages on the phone, but he could not recall reviewing them.

[127] Jansen testified that he did not test the camera, but assumed it worked because there were pictures on the phone.

[128] He testified that there was no thought or talk of getting a search warrant. They followed their normal protocol.

[129] At 1:34 PM, that is after a 3 min. search of the cell phone, Jansen went to Brooker's office to tell Brooker what they had found. Jansen took the LTSO to see what breaches he would document for the parole board. He reviewed the conditions at 1:35 PM. He went to tell Brooker what they had found because the Applicant was on a LTSO and therefore, breaches can be dealt with criminally and Brooker would process those charges.

[130] Grey could not recall what buttons Jansen had him press on the phone. He could not say, sequentially, how he navigated the phone, what menus he sorted through, what applications were opened, or where the two pictures were actually located in the phone, or where the text messages were located. Grey was not sure how he got to the 2 pictures on the phone. He was following Jansen's instructions.

[131] Neither Grey nor Jansen took notes while they were reviewing the phone. Grey testified that he made his notes regarding the search in a Word document right after. These notes were transferred to the A4D.

[132] After the phone was returned to Golemiec, Jansen then went to his office where he prepared his statement, which was given to Brooker on September 25, 2012.

[133] The flip phone was not searched.

[134] Jansen testified that his authority to review phone came from the fact that Grey was required to monitor the special conditions of the Applicant's release. Grey was to monitor compliance, and if there was a breach, then to report it to the parole board.

[135] Golemiec testified that he retrieved both phones for Grey and Jansen. He observed them opening one phone. He did not look at the phone. They returned the phones to him within 10 or 15 min. He logged them and then locked them up securely.

[136] When Brooker returned to PCCC, he went with Golemiec to the lunchroom. Brooker never touched the phone that had been retrieved from the Applicant's waistline. He knows that Grey and Jansen inspected that cell phone in the lunchroom. He did not participate in that. Brooker testified that the parole officers would know that in order for him to look at the phone, he would need a warrant. He testified that he is not sure if he said that to the parole officers at the time, but that they would know this from prior dealings with him.

[137] Brooker testified that he thought that the parole officers had authority to inspect the phone based on previous discussions with the acting director of PCCC.

[138] After the phone had been returned to Golemiec, the four of them spoke about the Applicant's conditions, and specifically that, he was not to be in possession of porn, or a camera capable of taking pictures, or a phone with Internet capability. They had this conversation because if the Applicant had committed offences, it was Brooker’s duty to investigate them. They spoke about whether there was a breach with respect to the content of the phone or the Applicant being at U[...]. Brooker said that would take more investigation and require the proper documentation being obtained, “breach LTSO will be pending re-the phones and will obtain warrant.”

4. Sexual Assault Investigation

[139] On September 26, 2012, Grey received a phone call from Ms. M.B.. They exchanged a number of calls over the day. Ms. M.B. disclosed to the officer information concerning a possible sexual assault and a possible drugging by the Applicant. Information was also disclosed that the Applicant may also be involved in impersonating her boyfriend A. She told him that the first time there had been a sexual assault she was drugged by the Applicant at the beginning of August. She told him that they had smoked three quarters of a joint and that she felt strange. She had a drink of juice that was provided by him. She felt like she was being touched. She said he was at her house every day. She thought that A., who she thought was really the Applicant, convinced her to have sex with the Applicant.

[140] Ms. M.B. also disclosed that she had a friend named E.C. who would also have something to say about a separate incident involving the Applicant. This had some significance to the officer because he recalled the Applicant had stated to him on September 5, 2012 that he wanted contact with a person named “E.C.”.

[141] Grey encouraged Ms. M.B. several times to go to the police with this information. Grey contacted Brooker immediately and advised him of his conversations with her and advised him of the information he had learned from her. He knew there were possibly grounds for new criminal charges of sexual assault. Grey also contacted his acting director and advised him of the information that he had learned from Ms. M.B..

[142] By the end of the day on September 26, 2012, Grey was aware that Ms. M.B. had reported allegations of sexual assault to Brooker.

[143] On September 27, 2012, Grey and Ms. M.B. had further conversations regarding the Applicant. The officer contacted Brooker to keep him up to date with all of the information being provided. As of that date, Grey was aware that Brooker was investigating allegations of a sexual assault and personation charges as well as the breach of the LTSO charges.

5. September 28, 2012

[144] Brooker spoke to Ms. Quelch, who he knew to be the Applicant's lawyer. He told her that there may be criminal charges coming with respect to the phone for pornography, the camera and Internet capability.

6. October 3, 2012 - Post Suspension Interview

[145] As of October 3, 2012, the Applicant was incarcerated at Joyceville Penitentiary in the segregation unit. The segregation unit is a high-security unit where the Applicant was being held in custody in a jail cell. The Applicant was escorted by a correctional officer to the interview room in the segregation unit. He was not permitted to walk the halls by himself unescorted. The segregation unit was monitored by cameras and jail staff or the interview was being conducted. The door to the interview room was locked and the Applicant was not free to get up and leave if you chose to do so.

[146] Grey attended there with him to conduct a post suspension interview. The officer did not give the Applicant any advance warning that the interview would be taking place and did not give the Applicant any opportunity to prepare for the interview. The purpose of this interview, which is a normal procedure for parole officers, is to generate a report called the A4D which would be submitted to the parole board to be considered when deciding whether to suspend the suspension warrant or to charge the Applicant with breaching his LTSO. The officer considered it a chance for the offender to give his side of the story.

[147] At this point in time, the officer knew the Applicant was not just suspended awaiting the decision of the parole board, but also that the Applicant was facing pending criminal charges. When he met with the Applicant on that date, he knew the Applicant was going to be facing at least four breach charges with respect to his LTSO. He also knew that Ms. M.B. had filed a police report alleging sexual assault and personation. He knew the Applicant had not been told about, and was not aware, that he was under investigation for sexual assault and personation involving Ms. M.B.. He was not told and did not know the nature of the specific breach charges that he was facing.

[148] The officer testified that he did not know any of the details of the criminal investigation. He did not want to jeopardize anything for either the Applicant or for the police. The officer did not ask the Applicant any questions relating to those allegations or investigation.

[149] While conducting the interview, Grey took notes in his notepad. He was not taking notes verbatim and was paraphrasing what was being said. The officer testified that he read to the Applicant his rights as set out in the A4D, p. 9, filed as Ex. 27,

Mr. Bourdon’s Post Suspension Hearing occurred at Joyceville Institution 12/10/03. Prior to the interview commencing the following caution was read to him. “I am here to interview you in relation to the suspension of your condition release (or long-term supervision order as applicable). I have learned that you have outstanding criminal charges and, therefore, I must inform you that you need not say anything about the charges. You have nothing to hope from any promise or favour and nothing to fear from any threat whether or not you say anything. Anything you do say about the charges may be used against you as evidence. Furthermore, you the right to retain and instruct counsel without delay. Do you understand? You have the right to obtain legal advice without charge through a 24 hour telephone service which provides access to legal aid duty counsel. Do you understand? Do you want to call a lawyer before we continue the interview?”

Mr. Bourdon said he understood, had already obtained legal services and did not want to call a lawyer before the interview continued.

[150] The rough handwritten notes that were taken by Grey during the post suspension interview did not contain any references or notations that he actually gave the Applicant his rights to counsel. There was nothing in the memo book indicating the questions the officer asked of the Applicant in giving his rights to counsel, and there is nothing indicating any answers that may have been given in response.

[151] There is nothing in the handwritten notes that indicates Grey told the Applicant of the criminal charges that are pending: there are no references to the specific breaches he is facing; there are no references indicating the details of the specific breaches that were explained; there is no note indicating an explanation of the breach concerning possession of pornography; there is no note indicating an explanation of the violation of the reporting condition with respect to females; there is no note indicating an explanation that he is facing sexual assault and personation charges involving Ms. M.B. and there is no explanation that he is alleged to be in possession of the second cell phone. Ex. 27 demonstrates that Grey told the Applicant during the interview that the phone that had been taken off of his person when he was arrested could lead to up to four breaches.

[152] The officer agreed that he did not explain to the Applicant, that he was also facing pending criminal charges, nor did he advise him that there was an ongoing investigation concerning himself, Ms. M.B. and Ms. E.C..

[153] The officer agreed that without explaining the pending criminal charges and the ongoing criminal investigation, he failed to explain to the Applicant how answering the questions could be used against him. The officer agreed that such information would be vital to the Applicant in deciding whether or not he was going to speak to the officer.

[154] The officer agreed that as an inmate residing at PCCC under a LTSO, the Applicant was required to work, meet and talk with his parole officer. If he was going to have any hope of abiding by the terms of his LTSO, he must work with the parole officer because the parole officer is the only person that governs how they are going to be reintegrated into the community. The officer agreed the Applicant, who was subject to not only the LTSO, but the house rules of PCCC, must inform his parole officer about his activities and his whereabouts and must answer any questions concerning whether he was abiding by the conditions or rules which governed him. The officer agreed that it was his established routine with the Applicant to meet and work with him at a minimum 8 times per month.

[155] The evidence is clear that the Applicant was required to answer all questions asked by Grey relevant to the terms of his LTSO and compliance with the PCCC house rules.

[156] The officer agreed that as of October 3, 2012, the Applicant’s circumstances were now very different as a result of the events of September 25, 2012. The Applicant was no longer a person who was simply serving out the provisions and the conditions of his LTSO. He was now a person facing pending new criminal charges for breaches, sexual assault and personation. The Officer agreed the Applicant's rights were now very different. He could now refuse to talk to his parole officer. If he refused to talk to his parole officer, he would no longer be subject to adverse legal consequences in doing so.

[157] The officer agreed that in speaking with him on October 3, 2012, the Applicant could incriminate himself on pending criminal charges. Anything he said could impact the sexual assault investigation that was ongoing.

[158] The officer agreed that this distinction between his former situation and his present situation was never explained to the Applicant prior to the October 3, 2012 post suspension interview.

[159] The officer agreed that previously the Applicant was obligated to speak to the parole officer about his contact with females. But on October 3, 2012, because of the ongoing criminal investigation, the Applicant had the right to refuse to speak to his parole officer about his contact with Ms. M.B. That distinction was not explained to the Applicant.

[160] The officer conceded that there were two purposes of the post suspension report. It would not only be submitted to the parole board, but it would also be used for a possible police investigation. Grey did not inform the Applicant of this.

7. The Search Warrant

[161] On October 22, 2012, Brooker attended before a justice of the peace to obtain a search warrant for the two phones of the Applicant being held at PCCC and one for a Rogers document that he had received from the owner of U[...]. The two phones were the one the Applicant had handed to Golemiec, a Samsung flip phone [phone number 1], the phone that had been approved of by Grey, and the Samsung smart phone that had been found down the front of the Applicant's pants, the unauthorized phone, about which Grey knew nothing and which had not been previously disclosed to Grey by the Applicant. The officer testified that the grounds he used in the ITO for the phones included the information he had received from Grey that the Applicant was at a place he was not supposed to be, Grey's observations of the contents of the smart phone, M.B.’s statements to police concerning sexual assault and the transcript of her video statement, the Econo Lodge documents, and the Rogers documents that had been provided to him by the owner of U[...], on October 18. These documents were addressed to the Applicant at that address.

[162] He testified that if he had not received the information from Grey about the contents of the phone, he felt that he still had the grounds to obtain the warrants, “based on M.B.'s information, her lengthy report and her video as well as the follow-up that was done with the Econolodge and the bill that came from Ms. C.F., the Rogers bill … I know that a phone can contain a lot of information. People communicate by phones, via texts, via calls. Whether it be from the flip phone or the smart phone, a lot of information can be contained in there that could corroborate anything that Ms. M.B. said.”

[163] Ex. 5 is the ITO for the warrant for both phones. It reads in part,

59. As a result of the arrest of Rene Bourdon, he was searched and found to be in possession of two Samsung Telus cellular phones. Rene Bourdon turned one of the phones over to CX Andre Golemiec, however, the second cellular phone was located tucked down the front of his pants upon his arrest. This second phone was located and turned over to CX Andrew Golemiec.

60. In order to monitor the conditions imposed by the parole board, PO Perry Grey inspected the Samsung Telus smart phone and observed that it has photo capabilities, access to the internet and pornographic pictures on the phone. These are all breached of conditions imposed by the parole board. The two Samsung Telus phones were lodged by CX Andre Golemiec in the locked Contraband Cabinet located in room 1C of PCCC which is located at 1455 Bath Road, Kingston.

61. Based on the description of the observations made by PO Perry Grey of the Samsung Telus smart phone, the videotaped witness statement provided by the victim, M.B., the items received from R.H. of the Econo Lodge and the Rogers bill received by C.F. in the name of Rene Bourdon, I believe that the Samsung Telus cellular phone and the Samsung Telus smart phone both contain evidence of the offence of Breach of Long Term Supervision Order, Personation and Sexual Assault as defined by the Criminal Code of Canada.

The ITO also contained details of what occurred on September 25, 2012, details of interviews with M.B. and details concerning the flip phone and the unauthorized phone including phone numbers, which phone belonged to whom, and communications by Ms. M.B. with the Applicant.

8. November 13, 2012: Applicant is charged with new criminal charges

[164] On November 13, 2012, Brooker made arrangements to have the Applicant brought to the police station for a court appearance. At approximately 12:30 PM, the Applicant was brought to the police station by two correctional officers. Brooker took the Applicant to a private room inside the building and advised him that he was being charged with 7 counts of breaching his LTSO, 2 counts of sexual assault and 1 count of personation. Brooker provided the Applicant with his rights to counsel and caution. The Applicant exercised his rights and spoke to his lawyer.

[165] At approximately 12:40 PM, Brooker escorted the Applicant to the print and photo room to have his fingerprints and photo taken. At 12:53 PM, a videotaped interview was conducted with him, which concluded at 1:15 PM. The Applicant was then taken for his court appearance for a bail hearing on the criminal charges.

[166] To this point in time, since September 25, 2012, the Applicant had spent 49 days in custody.

[167] On November 20, 2012, a production order pursuant to s. 487.012 was obtained for cell phone records held by Telus registered to Rene Bourdon for phone number [phone number 1] for the period from July 15 to September 25, 2012.

[168] On November 20, 2012, production order pursuant to s. 487.012 was obtained for cell phone records held by Telus registered to Ms. M.B. for phone number [phone number 2] for the period from July 15 to September 25, 2012.

[169] On November 28, 2012, a production order pursuant to s. 487.012 was obtained for cell phone records held by Rogers registered to Rene Bourdon for phone number 613 484 9221 for the period from August 29 to September 25, 2012.

[170] On November 28, 2012, a production order pursuant to s. 487.012 was obtained for cell phone records held by Rogers registered to Rene Bourdon for phone number 613 483 0242 for the period from July 15 to September 25, 2012.

9. Search by Detective Frawley pursuant to search warrant

[171] Detective Frawley of Kingston Police was accepted as an expert witness by the court computer forensic examination, and in cell phone examination and analysis.

[172] He examined the flip phone Ex. 6A,B,C. This phone had the telephone number [phone number 1]. This phone had no camera capability. It could not access the Internet. There was no password required for this phone. The evidence is that Ms. M.B. contacted the Applicant at the phone number, and that this phone was authorized by Grey.

[173] He examined the unauthorized phone shown in Ex. 7A,B,C. It is a Samsung SGH A885 smart phone. It had a Telus SIM card in it. No password was required. The phone number was [phone number 2]. The ITO stated that this phone number belonged to Ms. M.B..

[174] This phone [phone number 2] could acquire video, photographs, and it could access a form of the Internet through Telus such that it could do a form of web search. It could text and multi-media message.

[175] He also analyzed an INQ phone. It was physically damaged and therefore, his ability to examine it was limited. This phone required a SIM card, but it did not have one with it. There was no password on it. It belonged to M.B. who consented to him searching it. He observed videos and photographs on this phone.

[176] He also analyzed the contents of M.B.’s iPhone.

[177] His findings included determining that the iPhone and the INQ phone had communicated together. He concluded that the INQ and the Samsung A885 likely did not communicate.

[178] He testified that the A885 [phone number 2] when he examined it, had the potential to access the Internet. It had a toned down version of Internet accessibility. He testified that he did not manipulate the phone to go into the Internet because that is something he would not do. Doing so would add onto the phone something that was not there before he did that. Therefore, it appears that Grey and Jansen may have done just this.

[179] He was asked whether his extraction determined whether the phone had ever accessed Internet before. He testified that he cannot confirm it was accessed. In fact, what he saw suggested that the Internet had not been accessed. He testified that there was no evidence of net surfing or of any Internet activity.

[180] Thus, his evidence is to the effect that although this phone could in a limited way access the Internet, he could not determine whether the Internet that in fact been accessed by it.

IV. THE ISSUES

[181] The Applicant submits that breaches of his s. 10(a) and (b) Charter rights occurred and that as a result, a statement attributed to him while in the driveway on September 25, 2012, and the statement made by him to his parole officer on October 3, 2012 at the post-suspension interview should be excluded as evidence. Counsel submits that Golemiec, Brooker, Lund and Grey each breached the Applicant’s s. 10 rights, and both individually and cumulatively considered, must result in exclusion of the statements evidence.

[182] The Applicant also submits, independently of her s. 10 submission, that the warrantless search conducted by the parole officers at the PCCC of the Applicant’s unauthorized cell phone was a violation of his s. 8 Charter rights and that therefore, evidence from that search and evidence from the search of the phone by Frawley after obtaining a search warrant should be excluded.

[183] Counsel presented these two Charter breach positions independently one of the other, and acknowledged that any breach of s. 10 concerning the statements did not impact on the Court’s decision on the s. 8 argument, and vice versa.

V. POSITION OF THE APPLICANT

1. Detention

[184] On the morning of September 25, 2012, the Applicant was serving a LTSO, was subject to the conditions set out in the LTSO, the provisions of the CCRA, the house rules for the PCCC and the instructions, supervision and monitoring by his parole officers.

[185] The Applicant submits that when Golemiec said, “I've got him”, the Applicant was detained both psychologically and physically within the meaning of R. v. Grant, 2009 SCC 32, para. 44. He submits that at this point in time, the Applicant was detained not only for LTSO compliance purposes, but also because the officers were in the throes of investigating breaches of the conditions of his LTSO, specifically geographic location, and failure to report relationship, which are two specific serious criminal charges. He submits that based on what the officers knew before they got to U[...], and that upon seeing his car there and a young woman in the basement, they knew he was going to be charged with these two criminal offences of breach condition of his LTSO. He submits that this is a new detention, beyond the restriction of his liberty pursuant to the LTSO, and that at that point he was entitled to be informed of his Charter rights under section 10(a) and (b). The Applicant submits that this was not done by Golemiec at this point in time and that is a violation of section 10.

[186] The Applicant further submits that when he was arrested by Brooker at 12:33 PM, and again later by Lund, this at the latest resulted in a new detention which mandated compliance with section 10. He submits that it was not sufficient to comply with section 10 that Brooker and Lund told him that the reason for his arrest was the suspension warrant. The Applicant submits that these officers are required by section 10 to have informed him that he was being arrested for the criminal offences of breach conditions of his LTSO for geographic location, and failure to report relationship. These serious criminal charges carry a maximum penalty of 10 years imprisonment. His legal jeopardy had significantly increased beyond simply serving out his LTSO.

[187] The Applicant submits that the officers were required to comply with section 10 of the Charter because at the latest when they observed a young female at U[...] they knew the Applicant was going to be detained and arrested and charged the two criminal breach offences.

[188] The testimony of Brooker was that he advised the Applicant that he was under arrest for the suspension apprehension warrant that was going to be issued. He advised him that he had the right to call a lawyer, that he had the right to retain and instruct counsel without delay. Brooker told the Applicant that he had the right to call any lawyer he wished. He provided him with the toll-free telephone number that would put him in contact with the free legal aid duty counsel lawyer for free advice right now. Brooker testified that the Applicant understood this right. Brooker also advised him of a caution, that if he did wish to say anything in answer to the charge, anything could be taken down in writing and used in court. Brooker testified that although this wasn't a charge, because it was a warrant of apprehension, he advised the Applicant that he didn't have to say anything unless he wished to do so. Brooker testified that the Applicant understood this right as well.

[189] The Applicant submits that to comply with section 10 of the Charter Golemiec, Brooker and Lund were required to inform the Applicant that he was under arrest because of the breaches of the two conditions of his LTSO. Telling him that he was under arrest because of the suspension apprehension warrant did not comply with section 10. The suspension apprehension warrant was a Canada wide warrant. There was now a criminal investigation into these charges. Brooker testified that he believed that there were grounds possibly for these two breach charges. He knew he would be embarking on his own investigation in respect of these two criminal offences.

[190] The Applicant submits that the court should accept the evidence of Grey, that after he left the basement apartment, he asked the Applicant, “What are you doing here?” This had to have been after Brooker had arrested the Applicant. The Applicant responded that he was there to make sure that M.B. was going to attend the community assessment with Grey that afternoon. The Applicant submits that in this response he incriminated himself.

2. No compliance with s. 135.1(5) of the Corrections and Conditional Release Act, S.C. 1992, s. 20 (CCRA)

[191] The Applicant submits that there is no evidence of compliance with s. 135.1(5) as to a referral by CSC to the parole board, or what if any action was taken by the parole board. The Applicant submits that the only evidence is that on November 13, 2012, Brooker arrested the Applicant and advised him of the criminal charges and that he was taken to the court to be arraigned on them.

3. October 3, 2012 - Post Suspension Interview

[192] The Applicant submits that up to the post suspension interview, the evidence is that the only reason given to the Applicant for his arrest and detention in custody was that given by Brooker and Lund that a suspension apprehension warrant had been issued.

[193] The Applicant repeats that it was on the driveway on September 25, 2012, that Golemiec, Brooker and Lund were required to give the Applicant, his section 10 rights and specifically inform him that the reasons for his detention and arrest were breaches of the two conditions of his LTSO.

[194] To support this position, counsel relies on the decision in R. v. Jacobs (1986), 1986 ABCA 216, 31 CCC (3d) 40 (Alta. C.A.).

[195] The Applicant repeats that the court must approach the issue from the perspective that this was already a police investigation of criminal charges, at the latest, when Grey and Jansen were at the front door at U[...]. The Applicant was not free to leave the premises. He was detained by Golemiec. All of the officers they knew that he was going into custody.

[196] The Applicant points out that Golemiec did not tell the Applicant why he was being detained, or why he was being asked to empty his pockets. He did not explain that the Applicant was not going back to PCCC. He did not explain that the Applicant was under investigation for breaching his LTSO. He did not give the Applicant his rights to counsel or caution.

[197] The Applicant submits that even if this is viewed as detention for investigative purposes, the rights to counsel are required by law on the authority of R. v. Mann 2004 SCC 52.

[198] Counsel referred to the case of R. v. Nguyen 2008 ONCA 49, [2008] O.J. No. 219, para 19-20, as authority for the proposition that section 10(a) is necessary to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by section 10(b) in a meaningful way. Without being properly informed of the reasons for detention, an accused cannot make an informed choice as to whether to retain and instruct counsel, and indeed is restricted in what he can tell his lawyer about his situation.

[199] The Applicant also relies on the case of R. v. Sawatsky (1997), 1997 CanLII 511 (ON CA), 118 C.C.C. (3d) 17 (Ont. C.A.) as authority for his submission that informing the Applicant that he was under arrest because the suspension warrant had been issued did not comply with section 10. He submits that it was necessary that he was told that he was under arrest for two breaches of his LPSO, geographic location and failure to report relationships. In Sawatsky, the court held that when the reason for the detention, or the focus of the police inquiry changes, the right to counsel must be restated so that the accused can decide in the face of the new risk whether to exercise his or her right to counsel, “…Where there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time and the warning,” rights to counsel must be restated. (Para. 30).

[200] The court went on in that case to state, “I think it is appropriate to decide close cases in favour of the reiteration of the s. 10(b) rights. The police should be encouraged to re-advise detainees of the right to counsel when the focus of an investigation begins to shift or broaden. The administration of criminal justice is better served by a restatement of the detainee’s s. 10(b) rights, which is a little early than one which is too late to serve its intended purpose. Once the police have a realistic indication that a detainee may incriminate herself in a different and unrelated offence, the police should, if they wish to pursue that area of investigation, reiterate the detainee’s right to counsel and connect that right to the new allegations.” (Para. 36)

[201] Accordingly, defence counsel argues that it was necessary that Golemiec, upon placing the Applicant into a new detention situation, knowing that there was a criminal investigation of breach charges underway, give to the Applicant his s. 10 rights.

[202] Defence counsel submits further that even if this court decides that the new detention crystallized upon Brooker arresting the Applicant, it was necessary that Brooker inform the Applicant, not only that he was under arrest because of the suspension warrant, but that he was under arrest for suspected breaches of the two conditions of his LTSO, geographic location, and reporting females. Defence counsel submits that it would have been easy to so advise the Applicant in clear and simple language. She submits that if there were reasonable grounds to arrest, then there was certainly an ability to articulate these two reasons to the Applicant.

[203] When the Applicant called his lawyer from the police station, he did not know that he was under arrest for charges of breaching two conditions of his LTSO. Counsel submits that this robbed him of obtaining meaningful informed legal advice.

[204] Counsel submits that it is all the more important that the Applicant be informed of his section 10 rights because he was now facing two distinct serious legal consequences, firstly, the consequences flowing from the decision to suspend his LTSO and the requirements under s. 135.1(5) to (9) of the CCRA, and secondly, an investigation into criminal offences.

[205] Counsel submits that up until September 25, 2012 while serving his LTSO, the Applicant was required to discuss with his parole officer issues concerning his compliance with the conditions to which he was subject. In regard to the criminal investigation, he had the right to remain silent. Counsel submits that this important distinction was never explained to him.

[206] By September 26, 2012, Grey knew the Applicant was facing the criminal charges of five breaches of his LTSO, sexual assault and personation. Grey was passing information that came to him, such as what he observed on the cell phone or what Ms. M.B. was telling him on the phone on to the police. Grey testified that the report he was preparing for the parole board had two purposes, one was pursuant to s. 135.1, but the other was also for a possible police investigation.

[207] The Applicant submits that at the post suspension interview, Grey did not comply with the requirements of section 10, and failed to tell the Applicant the full extent of the legal jeopardy that he then faced. Grey prepared Exhibit 27, which reads in part,

Prior to the interview commencing, the following caution was read to him. I am here to interview you in relation to the suspension of your long-term supervision order. I have learned that you have outstanding criminal charges and, therefore, I must inform you that you need not say anything about the charges. You have nothing to hope from any promise or favour and nothing to fear from any threat whether or not you say anything. Anything you do say about the charges may be used against you as evidence. Furthermore, you have the right to retain and instruct counsel without delay. Do you understand? You have the right to obtain legal advice without charge to a 24-hour telephone service, which provides access to legal aid duty counsel. Do you understand? Do you want to call a lawyer before we continue the interview?

[208] Grey testified that in response, the Applicant said he understood, that he already had obtained legal services and did not want to call a lawyer before the interview continued. Grey testified that he knew that in conducting this post suspension interview, he was potentially obtaining evidence that could be used against the Applicant that could result in criminal charges.

[209] It is submitted by counsel that at this interview, the Applicant was in the position that he would trigger legal consequences if he spoke to the parole officer or if he chose to remain silent. She submits to state one obvious example, as an inmate subject to an LTSO with the condition requiring that he report female relationships, he was required by law to speak to his parole officer about M.B.. However, as an accused being investigated for sexual assault against M.B., he had the right to remain silent. She submits that this conundrum was not explained to him in clear and simple language by anyone to this point in time.

[210] In summary, counsel submits that when Golemiec informed the other officers that, “he's here”, he subjected the Applicant to a new detention and was required to comply with section 10 of the Charter and inform the Applicant that the reason for the detention was breach of two conditions of his LTSO. Counsel further submits that even if the court determines that the new detention did not arise until the Applicant was placed under arrest by Brooker, that officer was required to inform the Applicant, not simply that he was under arrest because of the suspension apprehension warrant, but because of charges of breaching two conditions of his LTSO. She submits that the failure by either officer and as well, Lund resulted in a breach of the Applicant's section 10 rights.

[211] She submits further that the failure by Grey to inform the Applicant, specifically of all of the criminal charges which he knew were being investigated as of October 3, 2012, and his role in both the parole and police investigation, including the dual purpose of the report that he was writing which would include the information gained the post suspension interview, was a further breach of the Applicant section 10 rights. She submits that without informing the Applicant of the entirety of the legal jeopardy that he faced, the rights that Grey gave to the Applicant were meaningless.

4. Search of the Unauthorized Phone

[212] The Applicant submits that the searches of the unauthorized phone by Golemiec on the driveway and then by Grey and Jansen at PCCC were violation of the Applicant’s s. 8 Charter rights. The Applicant seeks exclusion of any evidence derived, directly or indirectly, by such search including the evidence from Frawley’s search.

[213] The Applicant does not take issue with Golemiec asking the Applicant to empty his pockets and receiving from him his wallet, his flip phone, keys and his keys to PCCC.

[214] The Applicant does not take issue with the conduct of Lund in his pat down search of the Applicant which resulted in discovering the unauthorized phone. The Applicant concedes that the pat down search by Lund was appropriate in the circumstances as a proper search incident to arrest and did not violate s. 8 of the Charter.

[215] The issues are, firstly, the observation by Golemiec when he first observed the phone on the driveway and put it into his pocket, and secondly, and most seriously, the internal search of the phone by Grey and Jansen in the lunchroom at PCCC. The Applicant submits that these two searches were outside search incident to arrest and violated the Applicant’s section rights.

[216] On the first issue, the Applicant submits that the observations made by Golemiec that the phone had camera capabilities, constitutes a search. I will deal with this submission at this point. The testimony of the officer in chief on this point was as follows,

A: the belief that it was an unauthorized phone… The reason for that was because it was being concealed and, at that time, you could see that the phone… had a camera in it, a camera capability. It had a little camera in it and, as a result of that - and I believe that it was probably - an unauthorized item at that time.

Q: ...You've just pointed to photograph Ex. 7c - to the part of the camera on the upper left corner?

A: That's correct.

Q: …Did you ever manipulate this phone in any way?

A: I never - besides placing it in my pocket, I never opened it, attempt to access it, at all.

Q: Do you know if the phone was on when you received it?

A: No I don't.

[217] In cross examination on the point, he testified as follows.

Q: and it's fair to say you could see for yourself, right away, that the phone itself had camera capabilities right?

A: …I did see that the phone had camera capabilities on it, yes.

Q: And it's fair to say you knew immediate, once when you saw this phone being retrieved from Mr. Bourdon’s pants, that this phone represented contraband, right?

A: Yeah, an unauthorized item…. I knew that, like I said, the rules of the house stated that no one could have a phone with camera capabilities….

Q: with you being in possession of contraband with this second phone, you took a look at the phone while you're still at U[...]. Is that right?

A: No, I just – I- I noticed it was a camera phone and put it in my pocket. I didn't open it, look at it or anything like that.

Q: Since by looking at the phone and noting the camera, you don't search the phone for any potential breaches?

A: No, ma'am, I don't.

Q: You don't check the phone for any cell phone activity?

A: No, I don't.

Q: You don't check to see who, if anything, he's had contact – Mr. Bourdon has had contact with?

A: No.

Q: ….on that phone.

A: I don't check anything like that.

Q: You don't check for pictures?

A: No, I don't.

[218] I accept this testimony as credible and reliable, and it is supported by the photographs of the unauthorized phone in Ex. 7. I find that Golemiec did not perform any search of the phone when he took possession of it on the driveway. The observation of the camera capability was obvious and readily made through simple observation of the exterior of the phone, without any form of search.

[219] The Applicant concedes that because of the conditions of his LTSO and the PCCC house rules, the Applicant had a reduced expectation of privacy in both this unauthorized phone and in his flip phone. For example, counsel submits that he had an expectation of privacy in communications with authorized person such as his father.

[220] The Applicant relies on the principles set out in R. v. Fearon 2014 SCC 77 that one has a high expectation of privacy in one's cell phone. It is recognized that highly personal information is kept on one's cell phone.

[221] The Applicant acknowledges that as an inmate serving a criminal sentence on a LTSO, he was subject to the conditions of his LTSO and the PCCC house rules concerning cell phones. He had a legal duty to comply with all such conditions and his parole officers had the legal duty to supervise for compliance.

[222] The Applicant submits that he had a reduced expectation of privacy in his cell phones, but not a zero expectation of privacy. The Applicant accepts the principles set out in sections 3 and 3.1 of the CCRA. The protection of society is the paramount consideration for the CSC with respect to an inmate such as the Applicant. However, sections 4(c) and 4(d) indicate that he is entitled to some Charter rights protection:

(c) the service uses measures that are consistent with the protection of society, staff members and offenders and that are limited to only what is necessary and proportionate to attain the purposes of this Act; and

(d) the offenders retain the rights of all members of society except those that are, as a consequence of the sentence, lawfully and necessarily removed or restricted.

[223] Counsel submits that even with a reduced expectation of privacy in his cell phones, he is still entitled to Charter protection.

[224] Counsel concedes that nothing done by the parole officer prior to September 25 with respect to supervision of the Applicant’s flip phone was unlawful or in breach of his Charter rights. She stresses, however, that there was no ongoing criminal investigation during that timeframe.

[225] The Applicant acknowledges that the parole officer was entitled to monitor and supervise his cell phone for compliance with the LTSO conditions and house rules, including disclosure of detailed billing records and identification of the persons being called and instructing the Applicant not to delete messages on his phone without the approval of the parole officer, as was done throughout the spring of 2012 with respect to the flip phone.

[226] The Applicant submits however, that the parole officer is not entitled to a random, arbitrary extensive search of the phone whenever he wished to.

[227] Counsel points out that at the time of the search of the unauthorized phone at the PCCC, the Applicant was in custody at the police station. He had no access to the phone any longer. The phone was secure, locked up in the custody of CSC and there was no chance it was going to lose any information or evidence that it contained.

[228] Counsel submits that at this point in time, the Applicant was a person facing criminal charges. He was no longer a resident at PCCC. She submits that it is not relevant at that point for the parole officers to search the cell phone for compliance with LTSO conditions. She submits that to search the internal components of the unauthorized cell phone at that time required a search warrant. The Applicant was a person accused of committing criminal offences but, as is the case of any Canadian citizen charged with criminal offences, at that point he was presumed to be innocent. She submits that at that point in time, the jurisdiction of the parole officers had ended. She submits that they were no longer required to supervise or monitor for compliance with the conditions of his LTSO.

[229] The Applicant submits that section 66 of the CCRA does not authorize the search at PCCC. She submits that the section does not authorize a search of the internal contents of a cell phone. She submits further, that that section is only operative if the offender is, at the time, physically present in the facility.

[230] The Applicant submits that the principles set out in Fearon identify the requirements of a lawful search of a cell phone incident to arrest.

[231] The Applicant acknowledges that the first requirement, that the arrest is lawful, is met in this case.

[232] With respect to the second requirement, that the search must be truly incidental to the arrest, counsel points out that the accused was in custody, there was no longer any danger to the community. The evidence had been preserved. There was no risk of losing the evidence, or of the evidence being tampered with. She submits that there was no further need to discover evidence at least in regard to the two reasons for the arrest, namely breach of geographic condition and breach of condition to report relationship with females. The officers had that necessary information already. There was no situation where their investigation was going to be stymied or significantly hampered absent the ability to promptly search that cell phone’s contents.

[233] With respect to requirement three, counsel submits that that requirement was not satisfied in so far as the police already had the evidence concerning the two breaches. The purpose of the search was not aimed at securing evidence for those two breaches, but rather at evidence of additional breaches. Counsel submits that Fearon does not permit this. A search warrant is required to do that.

[234] The Applicant submits that requirement four, namely, of taking and maintaining detailed notes as to what was searched, how and why, is not met in this case. The officers had no such notes and no memory of how the unauthorized phone was searched at PCCC.

5. Section 24(2)

[235] With respect to the evidence of the Applicant's statements in view of the violation of his section 10 Charter rights, and with respect to the evidence from and derived from the unauthorized phone in view of the violation of his section 8 Charter rights, the Applicant submits that he has met his `123burden of satisfying the court that such evidence should be excluded pursuant to section 24(2) of the Charter.

[236] Counsel submits that the decision of the Supreme Court of Canada in R. v. Grant sets the framework for a court to adjudicate an application for exclusion of evidence under this section. In particular, at paragraph 71, the court states, “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…; (2) the impact of the breach on the Charter protected interests of the accused…; and (3) Society's interest in the adjudication of the case on its merits. The court'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) 1st Stage

(i) The statements

[237] Counsel submits that subjecting the Applicant to prolonged detention, commencing on September 25 without giving him the reasons for that detention amounts to a serious and egregious reach of his section 10 rights. She submits that as of September 25 at the latest 12:33 PM, his legal status had changed from an inmate serving LTSO, who had earned privileges in the community to a person accused of criminal offences being held in jail. She submits that by the time Lund had completed his pat down search, the Applicant was facing three criminal charges of breaching the conditions of his LTSO, geographic location, reporting female relationships and unauthorized phone. The search of the unauthorized phone at PCCC revealed more breaches, camera capability, porn and internet. As of September 26, there were allegations of sexual assault and personation, all known to the authorities.

[238] Counsel submits that for Grey to not inform the Applicant of this greatly increased legal jeopardy that he was facing prior to the October 3, 2012 post suspension interview is a gross and egregious breach of section 10. In addition, Grey did not tell the Applicant on October 3 that his report would be used both for parole board purposes and for the police investigation. Counsel submits that it would have been easy to give him all of this information and the reasons for his arrest on October 3 before the post suspension interview commenced.

[239] Counsel submits that the breach of his section 10 rights continued for 49 days until November 13, 2012 when he was arrested by police and told about the criminal charges.

[240] Counsel submits that the Applicant, as a result of the breach of section 10, was unable to obtain meaningful legal advice.

[241] It is the Applicant's position that after September 25, 2012. He was no longer subjected to parole officer discipline. He was the subject of a criminal investigation.

[242] Counsel submits that the breach of section 10 was serious. She submits that it gave the state an unfair advantage.

(ii) The unauthorized phone

[243] The Applicant submits that he had a reasonable expectation of privacy in the unauthorized phone, but admittedly a reduced expectation of privacy. He was an accused facing a new criminal investigation and charges. He was entitled to the presumption of innocence and full Charter protection.

[244] Counsel submits that the duties and responsibilities of the parole officers had ended upon his arrest on September 25, 2012. She submits that there was no connection between the search conducted at the PCCC and the three breaches already identified at the scene. The parole officers had all of the information and evidence they needed in connection with those three breaches. She submits that in this scenario, a search warrant was required to search the unauthorized phone. She submits that the parole officers acted unlawfully in searching the unauthorized phone even cursorily looking for additional evidence of these three offences or others.

[245] She submits that the fact that Brooker obtained and executed a search warrant at a later date does not remediate the wrongful search by the two parole officers.

[246] Counsel submits that the section 8 breach was grossly serious.

b) 2nd Stage

(i) The statements

[247] Counsel submits there was a significant impact on the Applicant as a result of the breach of this section 10 rights. The failure to inform the Applicant of what criminal charges he was facing robbed him of any ability to make a meaningful choice as to whether to retain counsel and if so how to instruct counsel. It deprived him of knowing the full extent of the legal jeopardy that he faced.

[248] Counsel submits that the impact on the Applicant is exacerbated in so far as he was held in custody for 49 days before he was told of the charges that he was facing, on November 13, 2012.

(ii) The unauthorized phone

[249] Counsel submits that as an accused person facing criminal charges and presumed to be innocent, the Applicant had a high expectation of privacy in the unauthorized cell phone.

c) 3rd Stage

(i) The statements

[250] Counsel for the Applicant submits that the prolonged detention without informing the Applicant of the reasons therefor demands strong condemnation by the court.

[251] Counsel submits that one factor to consider at this stage is the reliability of the evidence. She submits that the statements made by the Applicant may or may not be reliable. This factor cannot be significant in this case.

[252] Counsel submits that the failure to inform the Applicant of the charges that he was facing while holding him in custody over a prolonged period of time is conduct of the state that must be admonished. To not do so would bring the administration of justice into disrepute.

[253] Applicant submits that the exclusion of the statements made by the Applicant at the scene and on October 3, 2012 is not fatal to the Crown's case.

(ii) The unauthorized phone.

[254] Counsel submits that the principles set out by the Supreme Court of Canada in Fearon must be respected. To admit the evidence obtained through the search at PCCC, would be to permit the state to circumvent the search warrant process and to usurp the judicial function.

[255] Counsel submitted that to exclude evidence of the contents of the cell phone is not fatal to the Crown's case.

VI. POSITION OF THE CROWN

1. Overview

[256] On the section 10 issues, the Crown submits that the Applicant’s status did not change until he was arrested by Brooker on September 25, 2012 at 12:33 PM. It was at that point that the rights to counsel and the caution were required because he was facing the legal consequences set out in the CCRA for his conduct causing the suspension of his LTSO.

[257] The Crown submits that he was arrested solely for LTSO purposes and not as a result of criminal charges. Brooker informing him that the reason for his arrest was the suspension apprehension warrant was entirely accurate. The Crown submits that it was not necessary for compliance with section 10 of the Charter for Brooker to inform the Applicant that he was arrested because of breaches of two conditions of his LTSO.

[258] The Crown submits that there was no new detention until November 13, 2012 when he was charged with criminal offences and arrested and arraigned in court.

[259] With respect to the unauthorized phone, the Crown position is that the Applicant had no reasonable expectation of privacy in that concealed cell phone. The Crown submits alternate positions in regard to the lawfulness of the search of the unauthorized phone at PCCCC, namely, that the parole officers had the legislated authority to do the cursory search that they did pursuant to the CCRA and the Commissioner Directives, that section 66 of the CCRA is lawful authority for the search and finally that the search conducted at PCCC met the four Fearon requirements.

2. Facts of importance

[260] The Crown submits that events evolved quickly on September 25, 2012, and that the evidence does not support the defence position that there was a preconceived master plan to arrest the Applicant and charge him criminally. He submits that the purpose of the officers going to U[...] was in the exercise of their parole duties to monitor and supervise the Applicant's compliance with the conditions of his LTSO and the house rules. Golemiec was exercising such duties when he stopped the Applicant in the driveway and therefore doing so did not trigger section 10 rights. The parole officers were required to monitor for compliance and ultimately required to report to the parole board.

[261] The Crown submits that the evidence of Grey and Jansen shows that they were acting in their parole officer duty capacity with no preconceived plan to arrest and charge the Applicant criminally. Grey testified that his original intention was to take the Applicant back to PCCC for a conversation. Grey and Jansen believed it was necessary for them to talk to Ms. M.B. before acting director Bailey was called. Jansen testified that they had to do their due diligence. The Applicant could have had a reasonable excuse. The Crown submits the evidence is clear that there was no intention to arrest until Bailey said that the suspension and apprehension warrant was going to issue. The Crown submits that it was that direction by the acting director that crystallized the intent to arrest.

[262] The evidence is that Brooker was there for security purposes originally.

[263] Crown submits that the Applicant was detained by Golemiec on the driveway as part of a parole investigation. This is no different than the Applicant being required to meet with his parole officer and answer questions concerning compliance issues. This legal requirement on the Applicant was the result of him being subject to a LTSO.

[264] The Crown submits that Jansen’s evidence that while the Applicant was with Golemiec on the driveway, and Grey and Jansen were headed to Ms. M.B.’s apartment, he told the Applicant to stay with Golemiec and that he was possibly in breach of his conditions as to geographic location, and reporting female relationships is important and is a finding of fact that this court should make.

3. The Law

a) Section 10

[265] The Crown submits that there was no new detention on the driveway by Golemiec. Rights to counsel were not required at that point in time. The parole authorities are entitled to hold the Applicant and to investigate for compliance or breach of the conditions of his LTSO under their duties and responsibilities legislated by the CCRA. In this regard, the Crown relies upon the principles set out in R. v. Miller 1985 CanLII 22 (SCC), [1985] S.C.J. No. 79; Dufresne v. Canada (Attorney General) 2013 FC 1071; R. v. Bourdon, [2010] O.J. No. 1409 (SCJ); affd [2013] O.J. No. 605 (CA). Counsel distinguishes the Jacobs case.

[266] Counsel submits that even if the authorities had reasonable and probable grounds to arrest at an earlier point in time than the arrest made at 12:33 PM by Brooker, this does not trigger the requirement for rights to counsel being given earlier. R. v. Pomeroy, 2008 ONCA 521, [2008] O.J. No. 2550 (CA).

[267] The Crown submits that there was no new detention at law until Brooker arrested the Applicant at 12:33 PM. The Crown submits that rights to counsel were required at that point in time because the Applicant then faced the legal jeopardy and consequences under section 135.1 of the CCRA. It was in fact and in law, an arrest because of the suspension apprehension warrant being issued. That was the sole basis for the arrest. Accordingly, there was no need to give further information to the Applicant that he was arrested because of two breaches of his LTSO. He was not arrested at that time on criminal charges. To that point in time, the only investigation going on was in regard to the parole officer's duties and responsibilities in monitoring and supervising the Applicant's compliance with his conditions of the LTSO.

[268] The Crown submits that Brooker did more than simply tell the Applicant that he was arrested pursuant to a warrant, he told him that he was being arrested pursuant to the suspension and apprehension warrant. In support of this position, the Crown relies on the decision of the court in R. v. Wrightman 2004 ONCJ 210, affd [2005] O.J. No. 1360; and R. v. Williamson 2011 ONSC 6584.

[269] The Crown also relies on the evidence that Jansen testified that after the Applicant had been arrested by Brooker, he told the Applicant that the suspension apprehension warrant had been issued and the reasons for it were geographic and report relationship. He testified that he advised him that he had breached the reporting requirement of his relationship with M.B. and that he was at a location he hadn't signed out to and that the acting director, Mr. Bailey, was issuing a suspension apprehension warrant.

[270] Although the Crown urges the court to find that this information was given by Jansen to the Applicant, he submits that it was sufficient at law that Brooker informed the Applicant that the reason for his arrest was the issuing of the suspension and apprehension warrant. This is because the arrest was in fact for LTSO and CCRA purposes and reasons.

[271] In summary, the Crown points out that the Applicant on September 25, 2012 serving a criminal penalty under the conditions imposed by a LTSO and he continued under that LTSO beyond that day. The duties and responsibilities of the parole officers to monitor and supervise compliance and discharge their responsibilities under the CCRA and to the parole board continued beyond that day. The arrest was for LTSO and CCRA purposes only in fact and in law. The reason he was arrested was because the acting director was issuing the suspension and apprehension warrant. There was lawful authority for the arrest. The Applicant was told accurately the reasons for his arrest, namely the issuing of the suspension and apprehension warrant.

[272] The Crown points out the fact that the police transported the Applicant to the police station does not in any way negate the fact that the detention was based on the suspension and apprehension warrant.

(i) October 3, 2012 - Post Suspension Interview

[273] It is the Crown’s position that at this point, the Applicant is in custody solely because of the suspension and apprehension warrant. There is no evidence to the contrary. Therefore, his section 10 rights are engaged only for the LTSO and CCRA purposes.

[274] The Crown asks the court to find that Grey was not involved in a criminal investigation. He was not investigating the criminal offence of sexual assault. All he was doing was passing along information to Brooker and suggesting that Ms. M.B. contact police.

[275] It is the Crown’s position that Grey is required to hold the post suspension interview as part of his parole duties and responsibilities under the CCRA.

[276] The Crown submits that there was no requirement on the part of Grey to inform the Applicant about the details of the outstanding police investigation with respect to sexual assault and personation. That was not why Grey was interviewing him. It is important to note that Grey did not ask questions about those criminal offences.

[277] The Crown submits that there is a critical distinction between the case of the Applicant and Sawatsky because in the latter case, the purpose of the interview changed from one criminal investigation to a second criminal investigation. In regard to the commencement of the second criminal investigation, the accused was entitled to his rights to counsel and caution. The Crown submits that there was no such change with respect to the purpose of or focus of Grey’s interview.

[278] The Crown submits that Grey's interview had a singular purpose at all times and his questions did not stray beyond that purpose. He did not venture into matters concerning the criminal investigation. The Crown relies on two cases to support his position that in the situation of the Applicant, his section 10 rights were not violated at the interview. R. v. J.B. [2015] ONCA 684, para. 22 and R. v. Barrientos 2014 ONSC 2862, paras. 49 to 56.

[279] The Crown points out that Grey in fact warned the Applicant about outstanding criminal charges and that he need not say anything about the charges.

[280] The Crown points out that Grey avoided discussing the criminal investigation. He submits that it was the Applicant, who led the conversation and to stop the conversation when he decided to.

(ii) No compliance with s. 135.1(5) of the CCRA

[281] The Crown submits that the relevant dates are September 25 and October 3, 2012, which are within the first 30 days, during which the parole officer is required to prepare and submit a report to the parole board.

[282] In any event, the Crown submits that there is some evidence of compliance with s. 135.1(5). Criminal charges were laid on November 13, 2012. Brooker testified that he preferred to lay charges directly rather than wait for the parole board to hold its hearing and make a decision. He decided to lay the charges rather than wait for a parole board recommendation.

[283] There is no evidence that Mr. Bourdon was held in custody for any other reason than the suspension warrant to that point in time.

[284] There is evidence that Grey’s A4D report to the parole board was time locked October 9, 2012.

[285] CD 719, paragraph 50 indicates that a loss of jurisdiction will occur, making it necessary to release the offender immediately, if the specified time frames are not met. If a charge is laid pursuant to section 753.3 of the Criminal Code, which is what Brooker did, then the warrant of suspension, apprehension and recommitment expires. In that case, the offender will be released unless there is a court order remanding him into custody. The Attorney General is responsible for bringing the case before the court to deal with the issue of bail or remand to custody. On the evidence, that is what occurred on November 13, 2012.

b) s. 8 Charter: Search of the Unauthorized Phone

[286] The Crown submits that the court should find that there was no search of either of the cell phones at U[...]. For the reasons, that I have given previously, I agree and I make that finding. Furthermore, in her Reply, counsel for the Applicant referred to testimony by Frawley that on September 25, 2012, at 12:52:07 PM there was a text sent from Ms. M.B.’s iPhone to the unauthorized phone. Frawley’s testimony is to the effect that that text was opened. This evidence considered with the evidence of what was happening on the driveway at U[...] at the time and the testimony of the CSC officers does not lead me to find that this is evidence of a search of that phone at that time. Considering all of the evidence, I do not find that any CSC officer opened that text and read it at any time.

[287] I find that there was no search of the unauthorized cell phone before the actions of Grey and Jansen at PCCC.

[288] The Crown's main submission on this point is that the Applicant had no reasonable expectation of privacy in the unauthorized phone, indeed in either phone. Therefore, any search of that phone could not result in a violation of his section 8 rights.

[289] The Crown points out that both the conditions of the LTSO and the house rules of PCCC greatly restricted his expectation of privacy in a cell phone. The Crown points out that he was not originally allowed a phone until February 29, 2012. Additional conditions were attached by his parole officer including, any password was to be given to Grey, it was not to have camera capability, and he was not to delete texts until his parole officer approved of him doing so. The Applicant understood. The Crown also pointed to the detailed billing requirement, including the requirement that the Applicant identify the names associated with the telephone numbers on those billing records. Grey’s testimony identified the extensive monitoring and supervision of his authorized cell phone that took place during the spring of 2012. All of this was in the lawful pursuit of monitoring and supervising compliance with the LTSO conditions and PCCC house rules.

[290] Grey testified that he authorized one phone only.

[291] It is the Crown's position that the parole officers had unfettered access to the Applicant's phone and that they were entitled to inspect it for compliance.

[292] It is the Crown's position that the Applicant had no reasonable expectation of privacy whatsoever in either cell phone. He submits that the Applicant did not have even a reduced expectation of privacy in a cell phone in his circumstances.

[293] The Applicant concedes that none of the procedures undertaken by the parole officers with respect to his authorized cell phone were unlawful. The Applicant further concedes that no such monitoring and supervision procedures were done in connection with the unauthorized cell phone.

[294] It is the Crown's position that what the parole officers Grey and Jansen did in regard to the unauthorized cell phone at PCCC was squarely and lawfully within their duties and responsibilities to monitor and supervise compliance with conditions and house rules.

[295] The Crown submits that the Applicant having absolutely no reasonable expectation of privacy in a cell phone with respect to his parole officers is consistent with s. 4(d) and also with s. 134.2 of the CCRA.

[296] The Crown submits that clearly the Applicant had no reasonable expectation of privacy in his authorized cell phone in view of the monitoring and supervision by Grey, and therefore it would be illogical and inconceivable that he would have a reasonable expectation of privacy in an unauthorized cell phone.

[297] The Crown relies upon the following authorities and cases in support of its position in this regard, R. v. Edwards, 1996 CanLII 255 (SCC), [1996] S.C.J. No. 11; PCCC house rule: “Offenders with cell phones must ensure they are in compliance with any special conditions imposed by parole board. All cell phones used by residents are subject to scrutiny and review by CSC staff, including call history, text messaging or other features on their phones”, Ex. 33; R. v. Major, 2004 CanLII 12791 (ON CA), [2004] O.J. No. 2651 (C.A.); R. v. Blais, [2004] O.J. No. 4 (C.A.); R. v. Johnston, [2014] O.J. No. 6273 (S.C.J.); R. v. Finnegan, [2014] O.J. No. 1522 (S.C.J.); R. v. Bourdon; R. v. Cole, 2012 SCC 53, [2012] S.C.J. No. 53; and CD 715-1, para. 4c, “The Parole Officer will, … monitor the offender’s behaviour, release conditions and compliance with court ordered obligations.”

[298] The Crown submits that if the court does find that the Applicant had no reasonable expectation of privacy then the court need not go on to consider the second branch of the Edwards inquiry, namely whether the search by the police was conducted reasonably (para. 33).

[299] In the alternative, the Crown submits that the search at PCCC was conducted reasonably by the parole officers, as a cursory search only, for parole monitoring and supervision for compliance purposes only, which was lawful pursuant to the governing legislation.

[300] The Crown submits that the Applicant was still subject to the conditions of his LTSO and the parole officers still had responsibility to monitor and supervise for compliance, plus they had the further obligation to “as soon as possible but in any case no later than 30 days either cancel the suspension or refer the case to the (parole board), together with an assessment of the case.” s. 135.1(5) CCRA.

[301] The Crown submits that the Applicant remained subject to s. 134.2, namely the instructions given to him by his parole officer respecting any conditions of long-term supervision in order to prevent a breach of any condition or to protect society.

[302] The parole officers were under a short time frame to report to the parole board. CD 719 paragraphs 44 and 45 describe the timeframe and what the parole officers are to forward to the parole board. Their duties and responsibilities had not ended upon the arrest of the Applicant, which is the position taken by the Applicant.

[303] The Applicant is a special class of inmate subject to a LTSO, s. 135.1(5) and the paramount consideration for the CSC which is the protection of society, s. 3.1 CCRA.

[304] The Crown relies on the evidence of Grey that his purpose in searching this phone was to see if any conditions had been broken. He thought he had the authority to do so under s. 134.2. Jansen testified to the same effect. If the Applicant was in breach, it was the duty of the parole officers to report that in an A4D to the parole board. Jansen specifically testified that “absolutely not” was their purpose to confirm what criminal charges would be laid against the Applicant, “it was what conditions of release had been made, had possibly been breached… Our job at this point is to collect information for the parole board.”

[305] The Crown position is that the evidence is clear that the officers conducted a cursory search only for the purpose of monitoring compliance with his conditions, to assess his risk in the community and to report to the parole board.

[306] The Crown submits that the court must find that this is the purpose with which the officers searched the unauthorized phone at PCCC.

[307] The Crown submits that R. v. Colarusso, 1994 CanLII 134 (SCC), [1994] 1 S.C.R. 20 is authority for the principle that it is the purpose of the search that is important. The search by Grey and Jansen was for LTSO and parole board purposes. It was not for police criminal investigation purposes.

[308] The Crown points out that Brooker did not participate in this search. He knew that he, as a police officer, investigating crimes, needed a search warrant to search that phone.

[309] In the further alternative, the Crown relies on s. 66 of the CCRA as authority for the search by the parole officers of the unauthorized cell phone. Because of the decision that I have reached in this case, it is unnecessary for me to rule on this issue. I would note that there is ambiguity in section 66 on its face, namely, whether “an offender in that facility” means an offender who is a resident of that facility or an offender while he is present in that facility.

[310] In the further alternative, the Crown submits that the search meets the requirements set out by the Supreme Court of Canada in Fearon.

c) Section 24(2)

(i) Initial Issue: Search of the Unauthorized Phone

[311] The Crown points out that it is only evidence that “was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter” that can be excluded under this section. He submits that the onus is on the Applicant to establish this. He cites R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] S.C.J. No.76.

[312] The Crown submits that such an argument could arise with respect to evidence secured from the phone by Grey and Jansen at PCCC, but the evidence of Frawley cannot be said to have been obtained in a manner that infringed Charter rights. The unauthorized phone was concealed and lawfully seized. Police knew from Brooker's observations that the Applicant was at an address that was not authorized by his parole officer and with a female who was not authorized by his parole officer. Brooker obtained a lawful search warrant on October 22, 2012 to search the unauthorized phone. Frawley began his search of the phone pursuant to that search warrant on October 25, 2012. Counsel submits that the temporal link is very weak. Counsel also submits that the causal link is extremely weak. Brooker had enough basis to obtain the search warrant without the information from the parole officers as to what they saw during their cursory search at PCCC. The Information to Obtain the Search Warrant is filed as Exhibit 5 on the application. It confirms an adequate basis apart from the information from the parole officers. Brooker testified to the same effect. There were sufficient grounds apart from the information from Grey and Jansen.

(ii) Section 24(2): The Grant Analysis

[313] The Crown submits that the onus is on the Applicant to prove on a balance of probabilities that the admission of the challenged evidence would bring the administration of justice and disrepute.

[314] It is the Crown position that to exclude the challenged evidence would bring the administration of justice into disrepute.

1st Stage

(i) The statements

[315] The Crown submits that even if the court finds a breach of the Applicant's s. 10 rights, there was no complete disregard of his rights by the officers. Brooker and Lund had told him he was under arrest for the suspension and apprehension warrant. Jansen told him that it was in respect of a geographical breach and the failure to report relationships. Brooker spoke to his lawyer on September 28, 2012 and advised her that there may be criminal charges coming with respect to the phone for pornography, camera capability and Internet capability. Grey gave him some rights in advance of the post suspension interview. There was no evidence of male fides or intent to deliberately breach such rights. The Crown submits that the Applicant declined to contact a lawyer at the post suspension interview and that he had already obtained legal services. The Crown submits that the Applicant directed interview and ended it when he wanted to.

(ii) The unauthorized phone

[316] The Crown submits that this factor favours inclusion of the evidence. Any breach is at the lower end on the seriousness scale.

[317] The circumstance involves compliance with the conditions imposed on a special class of inmate through a LTSO. It is legislated that the protection of the public is the paramount factor so far as the CSC is concerned.

[318] The Crown submits the parole officers acted honestly and reasonably and bona fide and held an honest and reasonable belief that their cursory search for parole purposes, was lawful and that they did not require a search warrant. Their search did not beyond such lawful purpose.

2nd Stage

(i) The statements

[319] The Crown submits that this factor likely favours exclusion of evidence of the statements.

(ii) The unauthorized phone

[320] The Crown submits that at its highest the Applicant had a reduced expectation of privacy. This lessens the impact on his section 8 rights. The Crown also submits that the discoverability principle, R. v. Cote, 2011 SCC 46, [2011] S.C.J. No. 46, lowers the impact on his rights.

[321] The Crown submits that the section 8 impact is minimal in regard to the unauthorized cell phone search.

3rd Stage

(i) The statements

[322] The Crown submits that there's no evidence that the statements were not reliable. He further submits that exclusion of the statements would not gut the Crown case.

(ii) The unauthorized phone

[323] The Crown submits that the evidence obtained from the unauthorized phone is highly reliable. The evidence is highly important to the Crown case in particular with respect to the breach charges. To exclude it would gut the prosecution on those counts. It is also very important to the other counts of sexual assault and personation.

VII. SIGNIFICANT FINDINGS OF FACT

[324] The testimony of the four officers as to the events of September 25, 2012 contained discrepancies on minor peripheral matters such as timing and who did what, when. Such matters include: 1. Where Grey and Jansen were when they received the call from court can, still at PCCC or in the car; 2. What information Brooker had concerning the Applicant and U[...] prior to asking Golemiec to drive him there; 3. Whether Grey and Jansen followed the Applicant's car to U[...]; 4. Was there initial conversation amongst the four officers when they first arrived; 5. Was Brooker at the front door or not; 6. Was it Jansen or Golemiec who informed Lund at the scene and who was it that who actually retrieved the unauthorized cell phone from the Applicant’s waistline. These matters are not of significance but are minor matters about which one might reasonably expect honest differences in memory. With respect to discrepancies on significant facts, I make the following findings of fact.

1. I find that when the four officers arrived at U[...] before knocking on the front door, they knew: 1. The Applicant was in breach of his LTSO with regard to geographic location, and probably in breach in regard to reporting relationships with females; 2. The parole officers were going to investigate and do their due diligence to find out why he was there and with whom and whether he had a reasonable excuse; 3. The Applicant was not going to be permitted to leave the scene until the parole officers had completed their inquiries; 4. The parole officers were conducting their inquiries for the purposes of the supervision of and monitoring compliance by the Applicant with the conditions of his LTSO and the PCCC house rules for CCRA and parole board purposes; 5. All four of the officers knew the breaches of LTSO could result in Criminal Code charges; 6. Brooker was present for security purposes for the parole officers; and 7. There was no preconceived plan to arrest and lay criminal charges.

The evidence of the four officers supports these findings. Of particular importance, is the fact that the decision to arrest was not made until acting director Bailey informed Jansen that a suspension warrant was going to be issued. It was not until this point that Brooker, not the parole officers, decided to arrest the Applicant. Grey and Jansen testified that prior to this point in time, they were carrying out their duties and responsibilities for monitoring and supervising compliance with the LTSO, doing their due diligence and investigating whether the Applicant had a reasonable excuse. Their actions in going to the front door, inquiring as to the Applicant's whereabouts, observing a young female, and then going to speak to her confirm this. It was only after they had completed these inquiries that an informed phone call could be made and was made to the acting director.

2. I find as a fact that after Jansen heard Golemiec say, “He's here,” he and Grey left the front door and went to the driveway area where the Applicant and Golemiec were standing. At that time, he instructed the Applicant to stay with Golemiec and Brooker while he and Grey made their inquiries about what was going on relevant to the conditions of the Applicant's LTSO. I find as well that at that time, he told the Applicant that he had possibly breached his condition concerning geographic location, and reporting relationships with females. I appreciate that the officer acknowledged that he had made a note of this in his statement. He agreed that the first time that he disclosed this information was at a meeting with the Crown in February of 2015 in preparation for his testimony. I accept his explanation that he did not think that that information was relevant on September 25, 2012 because the information he was obtaining on that date was for consideration by the parole board. He also indicated that the first time he'd been interviewed about the case was in February of 2015. Golemiec’s testimony also supports this finding. He said Grey and Jansen had discussions with the Applicant.

3. I find that in telling the Applicant to stay with Golemiec, Jansen was acting lawfully as a parole officer exercising monitoring and supervision duties. Pursuant to those duties, he is authorized to meet with and discuss compliance issues with the Applicant.

4. I accept Brooker's testimony that Grey spoke to the Applicant on his way to the rear door of the residence at U[...]. I find that it was at this point that Grey asked the Applicant what he was doing there, and the Applicant responded “visiting a friend.” Brooker is an experienced police officer with training as to the importance of accurate observations and accurate and contemporaneous notetaking. He noted this exchange in his duty book. I make this finding even though Grey testified that he made this comment after he had exited M.B.’s apartment. Grey demonstrated carelessness with the preservation of his original notes and his memory was less specific than Brooker's. Golemiec’s testimony supports this finding. Also, Grey’s evidence that Brooker was at the front door is contradicted by Brooker, Jansen and Golemiec.

5. I find that as soon as he had been informed by Jansen at 12:33 PM that a suspension warrant was to be issued for the Applicant, Brooker arrested the Applicant. He advised the Applicant that he was under arrest for the suspension apprehension warrant that was going to be issued. He advised the Applicant that he had a right to call a lawyer, that he had the right to retain and instruct counsel without delay. Brooker told him he had the right to call any lawyer he wished. He gave him the 1-800 toll-free number that would put him in contact with a free legal aid duty counsel lawyer for free advice right now. He testified that the Applicant appeared to understand this right, “absolutely”. He also advised him of the caution, did he wish to say anything in answer to the charge. He told the Applicant that if he wished to do so anything could be taken down in writing and used in court. He testified that because it was a warrant of apprehension it was not a charge, “but I advised him that he didn't have to say anything unless he wished to do so”. The Applicant appeared to understand that right.

6. I also accept Jansen’s testimony that after he and Grey finished with M.B., they exited the apartment. He advised the Applicant that he had breached the reporting requirements of his relationship with M.B. and that he was at a location he had not signed out to and that the acting director was issuing a suspension apprehension warrant. The Applicant acknowledged this with a “yeah or a yay, nodded his head.” This would have been after Brooker had arrested the Applicant. The other officers did not give testimony that this occurred. I appreciate that Jansen had not included this in his statement. His recollection was and he testified under oath that he gave this information to the Applicant at that point in time. It was not relevant for his parole officer duties and responsibilities and any report to the parole board and therefore he did not think it relevant to include in that statement. I accept his explanation.

7. I find Lund arrested the Applicant and told him that he was under arrest because there was a warrant for his parole suspension. After the pat down search, which located the concealed unauthorized cell phone, Lund gave the Applicant, his rights to counsel, which included informing the Applicant that he was being arrested for a parole suspension warrant. The Applicant understood. He called a lawyer shortly after he was booked at the police station. The next thing Lund did was to read him the standard caution that he was not obligated to say anything unless he wished to do so but whatever he said, may be given in evidence. The Applicant understood. Exhibit 30 is the card from which the rights to counsel and caution were read to the Applicant.

8. I find that the status of the Applicant, as at September 25, 2012 at 1:30 PM, included the fact that he was still subject to the conditions of the LTSO, that he had been arrested because of the issuing of the suspension warrant, and that he had been given his rights to counsel and standard caution on two occasions for that reason. I find that the parole officers had responsibilities, in particular, to monitor and supervise his compliance with those conditions and to fulfill their responsibilities, in a short timeframe, under section 135.1(5) CCRA. The protection of society was their paramount consideration.

9. I find that the parole officers wanted to look at the phone when they got back to the PCCC because in Grey’s words, “I'm asking for the phone because his conditions that Mr. Bourdon has to obey by and I was reviewing the phone to see if there was any, ultimately, any conditions that could have been broken.” He said they looked at the phone briefly to see if it had Internet access in the web browser, like Google and Yahoo were there. He checked to see if there was a camera on the phone. It had camera capabilities. There were two pictures on the phone that he saw, one of M.B. naked and one of a vagina There was some text messages, but they didn't get into them. They just noted that there were text messages. At some point a call came in which they saw was from “A.”. They did not answer that call.

He took this information to include in his A4D for the parole board which he did.

I accept the testimony of Jansen that in reviewing the phone, he was collecting information for the parole board purposes which included the possibility of cancellation of the suspension and possibly of laying an information. He said that the parole board would ask whether they tested the camera to see if it worked. The parole board would want to know whether the Internet worked. They had to answer those questions in their report to the parole board. In cross examination, he was asked,

Q: And the purpose of reviewing the conditions of the long-term supervision order at this point in time was to confirm what criminal charges will be laid against Mr. Bourdon, is that fair?

A: Absolutely not. It was what conditions of release had been, had possibly been breached.

Q: And a breach of the long-term supervision order can lead to a criminal charge right?

A: If the parole board decides that or the police do a direct charge. Yes. But our job at this point is to collect information for the parole board.

I have no hesitation in finding on this point that Grey and Jansen were reviewing the phone for compliance with the conditions of the LTSO purposes and for the purposes of including their findings in their report to the parole board as required as a consequence of the suspension of the LTSO. They were not searching the phone for the purposes of any criminal investigation or for the purposes of determining criminal charges.

10. I also have no hesitation in finding that the search was a cursory one limited to these purposes and that it lasted no more than 3 min. and was conducted as testified to by these officers. On all of the evidence, I find that the two photographs were found by mere chance.

11. I find that prior to the post suspension interview of October 3, 2012, Grey knew that the Applicant had breached conditions of his LTSO, including geographic location, failure to report relationship with female, unauthorized cell phone, camera capability, pornography, and Internet capability. He also knew the police were conducting a criminal investigation of the Applicant for sexual assault and for personation. Grey knew that the Applicant's legal jeopardy has increased and that his legal rights had changed. As an inmate serving a LTSO in the PCCC, he was required to answer questions put to him by his parole officer concerning compliance issues. As a person facing criminal charges, he had the right to remain silent on such issues. Grey did not explain this change to him. Grey did not explain the broad spectrum of legal consequences that he was facing both under the CCRA, and the Criminal Code.

12. Although the appearance on Ex. 27 of the rights and caution given by Grey to the Applicant at the outset of the post suspension interview appears similar to a cut and paste, and despite the absence of any other personal notes made by Grey to that effect, I accept his testimony that he did so inform the Applicant in the words set in Ex. 27. He testified throughout his evidence in a responsive and direct matter and did not avoid or become defensive about answers that put him or his investigation or conduct in a bad light. I accept his testimony that his purpose at the post suspension interview was one of routine for the purposes of completing his report to the parole board and that it was not to advance a criminal investigation.

13. I find as a further fact that Grey did pass on information concerning M.B. to Brooker and that he provided a copy of his A4D to Brooker.

VIII. ANALYSIS

[325] The sections of the CCRA, and the Commissioner’s Directives that are of particular importance to my decision are as follows:

Corrections and Conditional Release Act

Purpose of correctional system

3 The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by

(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and

(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.

Paramount consideration

3.1 The protection of society is the paramount consideration for the Service in the corrections process.

Principles that guide Service

4 The principles that guide the Service in achieving the purpose referred to in section 3 are as follows:

(c) the Service uses measures that are consistent with the protection of society, staff members and offenders and that are limited to only what is necessary and proportionate to attain the purposes of this Act;

(d) offenders retain the rights of all members of society except those that are, as a consequence of the sentence, lawfully and necessarily removed or restricted;

Instructions to offenders subject to long-term supervision order

134.2 (1) An offender who is supervised pursuant to a long-term supervision order shall comply with any instructions given by a member of the Board or a person designated, by name or by position, by the Chairperson of the Board or by the Commissioner, or given by the offender’s parole supervisor, respecting any conditions of long-term supervision in order to prevent a breach of any condition or to protect society.

Suspension of long-term supervision

135.1 (1) A member of the Board or a person designated, by name or by position, by the Chairperson of the Board or by the Commissioner, when an offender breaches a condition of a long-term supervision order or a condition referred to in section 134.1 or when the member or person is satisfied that it is necessary and reasonable to suspend the long-term supervision in order to prevent a breach of any condition of it or to protect society, may, by warrant,

(a) suspend the long-term supervision;

(b) authorize the apprehension of the offender; and

(c) authorize the commitment of the offender to a community-based residential facility or a mental health facility or, where the member or person is satisfied that commitment to custody is necessary, to custody until the suspension is cancelled, new conditions for the long-term supervision have been established or the offender is charged with an offence under section 753.3 of the Criminal Code.

Limit on commitment

(2) The period of the commitment of the offender mentioned in paragraph (1)(c) must not exceed ninety days.

Cancellation of suspension or referral

(5) The person who signs a warrant pursuant to subsection (1), or any other person designated pursuant to that subsection, shall, immediately after the commitment of the offender, review the offender’s case and, as soon as possible but in any case no later than thirty days after the commitment, cancel the suspension or refer the case to the Board together with an assessment of the case.

Review by Board

(6) The Board shall, on the referral to it of the case of an offender, review the case and, before the end of the period referred to in subsection (2),

(a) cancel the suspension, if the Board is satisfied that, in view of the offender’s behaviour while being supervised, the resumption of long-term supervision would not constitute a substantial risk to society by reason of the offender reoffending before the expiration of the period of long-term supervision; or

(b) Repealed, 2012, c. 1, s. 90]

(c) where the Board is satisfied that no appropriate program of supervision can be established that would adequately protect society from the risk of the offender reoffending, and that it appears that a breach has occurred, recommend that an information be laid charging the offender with an offence under section 753.3 of the Criminal Code.

Laying of information

(7) Where the Board recommends that an information be laid pursuant to paragraph (6)(c), the Service shall recommend to the Attorney General who has jurisdiction in the place in which the breach of the condition occurred that an information be laid charging the offender with an offence under section 753.3 of the Criminal Code.

Terms of cancellation

(8) If in the Board’s opinion it is necessary and reasonable to do so in order to protect society or to facilitate the reintegration of the offender into society, the Board, when it cancels a suspension of the long-term supervision order of an offender, may

(a) reprimand the offender in order to warn the offender of the Board’s dissatisfaction with the offender’s behaviour while being supervised;

(b) alter the conditions of the long-term supervision; and

(c) order the cancellation not to take effect until the expiration of a specified period that ends on a date not later than the end of the ninety days referred to in subsection (2), in order to allow the offender to participate in a program that would help ensure that society is protected from the risk of the offender reoffending.

Commissioner’s Directive 715-1

RESPONSIBILITIES

4. The Parole Officer will:

c. monitor the offender’s behaviour, release conditions and compliance with court-ordered obligations

Commissioner’s Directive 719

Referral to the Parole Board of Canada for Decision

44. A decision to cancel the suspension or a referral to the PBC for a post-suspension decision will be made as soon as possible, but no later than the thirtieth day after the offender's commitment to custody.

45. The referral will include:

46. the Assessment for Decision (see Annex B)

47. the Reason for Suspension form (CSC/SCC 0345)

48. the Correctional Plan Update (as outlined in Annex E of CD 715-1 – Community Supervision)

49. the Community Assessment (if required).

50. Possible CSC recommendations and PBC decision options for offenders subject to long-term supervision orders are as follows:

a. suspension cancelled

b. suspension cancelled with conditions altered

c. order the cancellation not take effect until the expiration of a specified period ending on a date not later than on the 90th day in order to allow the offender to participate in a program that would help ensure that society is protected from the risk of the offender re-offending

d. referral to the Attorney General (of province or territory where offender is located) with a recommendation to lay information to charge the offender pursuant to section 753.3 of the Criminal Code.

Loss of Jurisdiction

1. A loss of jurisdiction will occur, making it necessary to release the offender immediately, if:

a. the Assessment for Decision does not include an assessment of the case and a recommendation, and the specified timeframe has expired, or

b. the referral is not submitted to the PBC within the specified timeframes.

Expiration of Warrant of Suspension, Apprehension and Recommitment

53. If the case is referred to the PBC, the warrant of suspension, apprehension and recommitment is valid for a period of up to 90 days from the date it is executed and the PBC cannot, by law, extend it by decision. This 90-day period includes the first day of the offender’s commitment to custody on the warrant of suspension, apprehension and recommitment. If a charge is laid pursuant to section 753.3 of the Criminal Code, the warrant of suspension, apprehension and recommitment expires.

54. If the warrant of suspension, apprehension and recommitment expires, the offender will be released unless there is a court order remanding him/her in custody. The Attorney General is responsible for bringing the case before the court to deal with the issue of bail or remand to custody.

Direct Charge by Police or Crown pursuant to Section 753.3 of the Criminal Code

55. The police or Crown Attorney can directly charge an offender with a breach pursuant to section 753.3 of the Criminal Code without a recommendation from CSC or PBC.

56. Upon receiving information that an offender has been directly charged with a breach, the Parole Officer will inform the person with designated authority and the Sentence Manager.

57. The Sentence Manager will verify that a direct charge has been laid by obtaining either a copy of the sworn information, judge’s order, warrant of arrest, or notice for first appearance. He/she will then advise the Parole Officer.

58. The Parole Officer will immediately advise the police that the suspension has expired as a result of the laying of the charge. The Attorney General is responsible for bringing the case before the court to deal with the issue of bail or remand to custody.

Laying of Information for a Breach Charge

62. A breach of order charge can only be pursued when a specific instance of breach of conditions has occurred. The Parole Officer will provide the Attorney General sufficient evidence to prove beyond a reasonable doubt that a condition has been violated.

63. The Parole Officer will provide the Attorney General the following information at a minimum for consideration to proceed with a breach charge:

a. the PBC decision

b. the relevant Assessment for Decision

c. the Correctional Plan

d. documented proof of the existence of the long-term supervision order

e. the long-term supervision release certificate

f. a precise description of the breach.

1. Section 10 Charter: Statements

a) Grey

[326] For the reasons that I have stated in paragraph 324.4, I have found that Grey asked the Applicant what he was doing while he was on the way from the front door with Jansen to the apartment at the rear of U[...]. He did this in the context of his parole officer duties in monitoring and supervising the Applicant for compliance. The Applicant is subject to the special regime of a long-term supervision order. Parole officers must consider first and foremost the protection of the public. Grey was entitled at law to ask the Applicant what he was doing at the location. Dufresne, CCRA ss. 3.1 and 134.2, and Commissioner’s Directive 715-1, para. 4(c) are authority in this regard. This measure had no criminal or penal consequences for the Applicant.

b) Golemiec

[327] The same authority applies to the actions of Golemiec holding the Applicant on the driveway while the two parole officers made their inquiries. Such action is no different than the day-to-day restrictions on the Applicant's liberty as a result of his LTSO. At that point in time, there was no legal requirement that he be informed of his s. 10 rights. This is just the same as the Applicant being required to meet with his parole officer as an intensive supervision case at least twice a week for the purpose of monitoring and supervising his compliance with conditions. There is no requirement that he be given s. 10 rights at the outset of each of those meetings. In Dufresne, the court found that the parole officer instructions must be adapted to an offender's particular circumstances and must be flexible to ensure the ongoing management of the risk he represents. The court found that the parole officer had the authority to confine the Applicant to residence because she had received information regarding a potential increase in the risk that he represented for the public. Golemiec held the Applicant for 8 minutes only, while the parole officers investigated. The Applicant does not take issue with Golemiec’s request that the Applicant empty his pockets.

c) The Warrant and the Arrest

[328] The evidence persuades me that it was not until the acting director informed Jansen that a suspension warrant would issue that the Applicant was subjected to a new detention, beyond that imposed by his LTSO and house rules and his parole officer instructions. Grey testified that up to that point in time, “we were busy doing what we were doing and we wanted to find out further information on whether it was - whether we should be suspending for protection of society, or if there were possible breaches”. Jansen testified, “we were collecting information for the parole board for our purposes… We weren't conducting a criminal investigation. We were conducting, collecting information with regards specifically to the conditions of release the standard and special conditions of release, knowing that we'd be writing… A report to the parole board for an assessment for a decision to request either if the decision is made at that point to suspend him, to either release him or for laying of information… The way we collect that information I believe is much different than how police do it. Our job is to collect the relevant information that risk relevant information and report back to the parole board.” Up to this point in time, the parole officers, who were the only two officers engaged in and responsible for the supervision and monitoring of the compliance by the Applicant, were investigating to determine whether there had been any breaches. As Jansen testified, they had to do their due diligence and determine whether the Applicant had a reasonable excuse to be there and with M.B..

[329] Despite the suspicions and concerns that they had when they arrived at the scene, initially, it was the decision of the acting director that resulted in a change in the legal jeopardy that the Applicant was facing. The principles set out in R. v. Pomeroy, 2008 ONCA 521, [2008] O.J. No. 2550 (C.A.), paras. 20-22, support my conclusion in this regard. Regardless of what thoughts the officers had at U[...] with respect to the potential for criminal charges, the evidence clearly demonstrates the marked substantive difference between a parole officer investigation leading to a suspension warrant, and reporting to the parole board, as compared to a police investigation undertaken before criminal charges are laid. The ITO sets out the significant police investigation that preceded charging the Applicant criminally as does the evidence of Frawley’s examination of the cell phones. Brooker described the police investigation. Although he had grounds to arrest the Applicant earlier on criminal charges, he knew the Applicant was in custody on the suspension warrant. He was still investigating on November 2, 2012. The police brief was being prepared as of that date. Brooker intended to lay the criminal charges before a parole board decision, and by November 13, 2012, he was ready to proceed with the charges.

[330] When he was told on September 25 that the suspension warrant was to issue, Brooker arrested the Applicant and told him that the reason was because of the suspension warrant. That was an accurate statement of the Applicant’s situation at that point in time. The suspension warrant was in fact the only reason that the Applicant was being taken into custody. The Applicant's legal jeopardy had changed at that point because he was now facing the consequences under section 135.1 of the CCRA. Brooker gave him his rights to counsel and cautioned him in recognition of this, the Applicant's new legal jeopardy. This was not a police investigation at this stage and the Applicant was not arrested on criminal charges and therefore, Jacobs is distinguishable. It was only necessary for Brooker to give the Applicant, his rights to counsel and the caution with respect to the CCRA consequences that he was now facing and that is what Brooker did. Jacobs is authority for finding that at the point the Applicant was arrested “such new foundation did not replace but was in addition to the one relied on previously,” namely his status as an inmate serving a LTSO (para. 18). The case also serves to illustrate that at the point that he is placed in the new detention, the Applicant and the parole officers continued to be bound both by the restrictions, conditions, duties and responsibilities resulting from his status as an inmate serving a LTSO, and in addition, those arising from the suspension warrant.

[331] Brooker complied with the principles set out in Nguyen, in so far as the suspension warrant jeopardy which the Applicant then faced was concerned. Sawatsky is distinguishable from the Applicant’s situation in that, in that case, a second criminal investigation was the new legal consequence being faced by that accused. But it can be said that in giving the rights and caution to the Applicant at this point with respect to the s. 135.1 jeopardy the Applicant now faced, Brooker fully complied with s. 10.

[332] Accordingly, I find that there was no s. 10 requirement on Brooker to do more than inform the Applicant that the reason he was under arrest was because of the suspension warrant. It was not necessary for section 10 compliance to advise him in addition, that he was under arrest for breaches of his LTSO conditions for geographic location, and for failure to report a relationship.

[333] I make the same ruling in so far as the arrest by and the rights to counsel and caution given by Lund, who acted in the same manner as Brooker.

[334] There was no breach of section 10 in so far as this Applicant is concerned in the course of his arrest and being taken back into custody on September 25, 2012.

[335] The reality on this case is that the criminal charges were not formalized and laid until November 13, 2012. No issue is taken by the Applicant with respect to his s. 10 rights arising at that time.

d) Post Suspension Interview

[336] Grey testified that a post suspension interview happens after every suspension. He testified that he goes in and interviews the individual and discusses what happened. “It's their time to provide the parole officer with their side of the story.” “It's just policy. That's what we do.”

[337] There is no evidence that the police were involved in the set up or conduct of the post suspension interview. There is no evidence that police delayed their charges awaiting the information from the interview.

[338] Grey confirmed that the contents of the interview were put into his A4D.

[339] Prior to commencing the interview, Grey knew the Applicant was facing criminal charges of breaching his LTSO, sexual assault and personation. He was passing information that came to him, for example, what was observed on the cell phone and what Ms. M.B. was telling him, on to the police. He testified that the report he was preparing for the parole board had two purposes, one for the parole board, but one was also for a possible police investigation. Grey is required to do this by CD 719, ss. 62 and 63.

[340] Prior to commencing the interview, Grey did not inform the Applicant of any of this.

[341] While serving his LTSO, the Applicant was required to discuss compliance issues with his parole officer. At the point of the post suspension interview, he had some rights to remain silent, probably with respect to the s. 135.1(5) proceedings, although I need not and do not decide that issue, and certainly with respect to the criminal proceedings. Grey did not inform him of this, except to the extent set out in Ex. 27, the caution and rights read at the commencement of the interview.

[342] The Applicant knew where he was on September 25, 2012 and with whom, and what authority, if any, he had to do so. The Applicant knew that he had been arrested because of the suspension warrant issued in respect of his LTSO. He knew Jansen had told him that the parole officers were concerned about breaches of his geographic location, and failure to report relationship with female. He knew the concealed unauthorized phone had been discovered. He knew Brooker and Lund had cautioned him that he had the right to remain silent with respect to the suspension warrant and also that he had the right to counsel in that regard as well. He knew from the face of his long-term supervision certificate that his long-term supervision could be suspended if he violated the conditions of his LTSO, or any instructions given to him by his parole supervisor. He also knew from the face of the document that failure or refusal without reasonable excuse to abide by the conditions of the long-term supervision order is an offence under the Criminal Code, upon conviction for which he could be liable to imprisonment for a term not exceeding 10 years. He had spoken to his lawyer on September 25 and he may have known that Brooker had spoken to his lawyer on September 28.

[343] The wording of the caution read by Grey to the Applicant does distinguish to some extent between an interview in relation to the suspension of his long-term supervision order and outstanding criminal charges. It is not clear whether the right to retain and instruct counsel as read to him by Grey relates to the interview or to the charges or to both. The Applicant indicated that he understood what was read to him and that he had obtained legal services and did not want to call a lawyer before the interview continued.

[344] What I find troubling is that Grey did not tell the Applicant that he was facing criminal charges for breach as distinct from s. 135.1 consequences or that he was specifically facing criminal charges of sexual assault and personation. Grey did not tell the Applicant that he was passing information on to police and that would include the information that he received at this interview.

[345] I accept the testimony of Grey that the Applicant led the discussion at the interview and did most of the talking and that if the Applicant did not want to talk about a subject then that did not occur. Grey did not ask any probing questions. The Applicant brought the interview to an end. I also accept Grey’s testimony that his purpose was to fulfill his responsibilities to report to the parole board.

[346] I am satisfied on the evidence, however, that the Applicant was not put in a position to make an informed choice on whether to provide a statement concerning his suspension warrant situation and whether he had the right to remain silent in that regard. Furthermore, in the absence of Grey informing him as to what criminal charges were being investigated, he was not in a position to make an informed choice on whether to give a statement that could impact on those charges. There is no evidence as to whether the Applicant thought his jeopardy was simply breach charges or whether other serious charges were within his contemplation. Grey knew the potential jeopardy facing the Applicant, but didn't tell him. The evidence satisfies me that the Applicant was not sufficiently informed of his jeopardies by a person in authority who should have known and should have explained it to the Applicant in simple and clear language.

[347] I believe that this is a case where the principle set out in Sawatsky should govern, “considering the purpose underlying s. 10(b) and its fundamental importance in maintaining the fairness of the criminal investigatory process, I think it is appropriate to decide close cases in favour of the reiteration of the s. 10(b) rights. The police should be encouraged to re-advise detainees of the right to counsel when the focus of an investigation begins to shift or broaden. The administration of criminal justice is better served by a restatement of the detainee’s s. 10(b) rights, which is a little early than one which is too late to serve its intended purpose. Once the police have a realistic indication that a detainee may incriminate herself in a different and unrelated offence, the police should, if they wish to pursue that area of investigation, reiterate the detainee’s right to counsel and connect that right to the new allegations.” (para. 36) The reference to “police” in that case applies to parole officer in the present case.

[348] I do not find male fides on the part of Grey or deliberate misconduct designed to breach the Applicant’s Charter rights. He followed his standard procedure which he believed to be lawful. In regard to the caution and right to counsel read by Grey to the Applicant, Ex. 27, this case can be viewed as analgous to the use of model jury charges by trial judges. Just as with model instructions, the caution and right to counsel used by parole officers at a post suspension interview, are not a “one-size-fits-all product.” R. v. McDonald 2015 ONCA 791.

[349] It is my opinion that Grey should have informed the Applicant in plain and simple language of the full extent of the legal jeopardy that he was facing and further that he was passing information that he received on to police, including what the Applicant would tell him at the interview. In addition, Grey should have informed the Applicant in plain and simple language what right to remain silent, if any, he then had in regard to the suspension warrant issues, and distinguished in plain and simple language that he had a right to remain silent in regard to the criminal charges, which Grey should have identified to the Applicant that he was then facing. The absence of such information robbed the Applicant of the ability to make an informed choice with respect to both his right to counsel and the caution.

[350] The Court of Appeal has stated in Nguyen, at para. 20,

20. It is clear, therefore, that while the main purpose of s. 10(a) is to inform an individual of why he or she is being detained, it also has an important secondary aspect as an adjunct to the right to counsel conferred by s. 10(b). Specifically, the purpose of s. 10(a) is also to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by s. 10(b) in a meaningful way. The purpose of s. 10(b), in turn, is to ensure that an individual subject to detention or arrest understands his or her right to silence and can make a meaningful choice about whether to exercise it. …

[351] In my opinion, at the outset of the post suspension interview, Grey failed to comply with the Applicant’s s. 10(a) Charter rights.

e) Section 24(2) Charter

[352] In my opinion, the Applicant has satisfied the court that to admit evidence of the statements made during the post suspension interview would bring the administration of justice into disrepute and therefore should be excluded.

[353] This breach was serious in that it robbed the Applicant of the ability to make an informed choice as to whether to make a statement and as to whether he should consult with legal counsel before making that decision. It would have been an easy thing for Grey to provide the Applicant with the information that he required. I think it is a factor that the authorities left the Applicant in the dark about the full extent of his legal jeopardy for 49 days.

[354] For the same reasons, the breach had a significant impact on the Applicant's protected interests. The Crown quite fairly concedes that this factor would favour exclusion.

[355] I cannot find that there is any reliability in the statement. No assessment can be made in that regard. The Crown quite fairly concedes that exclusion of the statement would not gut the Crown's case.

[356] For these reasons, the statement made by the Applicant in the post suspension interview is excluded.

f) Compliance Section 135.1

[357] On a final point raised by the Applicant, I find that the Applicant has not established on the evidence that the requirements of s. 135.1 were not met in this case. There is evidence to support a finding that the parole officers delivered the A4D in a timely manner. The evidence is that Brooker laid criminal charges directly without waiting out the entire period of time permitted for the parole board review.

2. Section 8 Charter: The Unauthorized Phone

a) Section 8 Analysis

[358] The informational contents of a cell phone have been recognized by our courts as giving rise to important privacy interests. It has been recognized that searches may constitute a very significant intrusion of that privacy. Fearon, paras. 51 to 58.

[359] For the reasons that I set out below, I conclude that the Applicant had no reasonable expectation of privacy in the unauthorized cell phone discovered in his waistband by Lund.

[360] The Applicant does not object to Golemiec requesting that he turn his authorized phone over to Golemiec. He did not turn over the unauthorized phone at that time. It would be quibbling with semantics to suggest that the reason for that was because Golemiec asked him to empty his pockets.

[361] The Applicant does not object to the pat down search conducted by Lund which located the unauthorized phone.

[362] I accept the testimony of Grey and Jansen that they conducted the search of the unauthorized phone at PCCC for LTSO compliance purposes and for the purposes of the A4D report required for the parole board as a result of the suspension warrant. Their authority to do so is found in Commissioner’s Directive 715 -1, para. 4c; s. 134.2 of the CCRA, the house rules of the PCCC; ss. 3, 3.1 as well as ss. 4c and 4d, s. 135.1(5) of the CCRA and CD 719 para. 45. They believed they had the authority and the duty to do so. I find that there was no intentional misconduct on the part of the parole officers to wilfully violate the s. 8 Charter rights of the Applicant.

[363] The experience that the Applicant had with respect to obtaining permission for the authorized cell phone, and with the monitoring and supervision by Grey through the spring of 2012 and the refusal of a new cell phone on July 9, 2012 as described by Grey would demonstrate clearly to the Applicant that he had no reasonable expectation of privacy in the authorized phone and certainly not in the unauthorized phone. He was bound to comply with the conditions imposed upon him by the LTSO, by the house rules, by the instructions given to him by his parole officers and as set out in the CCRA for monitoring and supervising his compliance by his parole officers. On the evidence before me, he remained bound by the LTSO and the CCRA until the long-term supervision order expired on March 6, 2014.

[364] In Edwards, the Supreme Court of Canada stated that whether the Applicant has a reasonable expectation of privacy depends upon the “totality of the circumstances”. It set out four lines of inquiry to guide the application of the test, which is one of substance, 1. An examination of the subject matter of the alleged search; 2. A determination as to whether the claimant had a direct interest in the subject matter; 3. An inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and 4. An assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.

[365] I accept that the contents of the cell phone can give rise to significant privacy interests.

[366] The evidentiary record before me indicates a very limited direct interest on the part of the Applicant in this unauthorized cell phone. On the record, his interest was in having it on his person concealed and not turning it over when asked by Golemiec. There is no evidence of ownership or any right to possession of it. On the evidence, the Applicant had no ability to exclude his parole officer’s access to any phone that had been authorized. The evidence of Brooker and Frawley is that the unauthorized phone had a phone number of [phone number 2]. The ITO, para. 46 states, “that [phone number 2] belongs to M.B. with an address of P[…], Unit […], Kingston.” It states that she said that she sent it to A., and that he had sent it back to her. The ITO states that Ms. M.B. told Brooker that that was her phone number. The ITO states that she would contact the Applicant on his phone number [phone number 1]. The evidence is that this latter phone was the authorized phone. The ITO states that this latter phone belonged to the Applicant. Ms. M.B. consented to police searching her old INQ phone, and her current iPhone. Frawley testified that the INQ phone at one time had the [phone number 2] phone number.

[367] There is no evidence as to whether the Applicant had a subjective expectation of privacy in the unauthorized cell phone. What was revealed to the officers in their search does not bear on this Applicant's subjective expectation of privacy: 2 photos, 1 of M.B., apparent connection to the internet, some texts of unknown content and an incoming call from “A.”, whose role in all of this was as yet unknown. In view of the legislation, the house rules, the terms of his LTSO and the Applicant's monitoring and supervision experience with the authorized phone, I cannot conclude that he had a subjective expectation of privacy in it. In reaching this conclusion, I have also considered the fact that the Applicant concealed the unauthorized phone, and that he turned over the authorized phone which he knew could be checked for compliance.

[368] “Privacy is a matter of reasonable expectations. An expectation of privacy will attract Charter protection if reasonable and informed people in the position of the accused would expect privacy.” R. v. Cole, 2012 SCC 53, [2012] S.C.J. No. 53, para. 35. Given the Applicant's offence history as a sex offender, his sentence to serve 7 years on a LTSO with the conditions attached to it, the PCCC rules, and the process to authorize, the monitoring and supervision of his authorized phone, and the refusal of an attempt by him to use a new phone in July, I conclude that there could be no objectively reasonable subjective expectation of privacy in the unauthorized cell phone having regard to the totality of the circumstances.

[369] Blais is authority for my conclusion. Personal belongings were seized by the jail authorities and placed in a sealed, but transparent plastic bag. Police were permitted to look at the belongings through the bag, but not permitted to open the bag or take it away. Subsequently, a warrant was issued authorizing police to do so. That is a similar fact situation to the Applicant's case. In that case, the court stated, “he could not reasonably expect that agents of the state would not inspect those goods although he could expect that the police would obtain a search warrant before actually taking them out of the possession of the jailer who is under a duty to safeguard them.” Para. 13. Finnegan also supports my conclusion although I recognize both cases dealt with personal belongings rather than a cell phone.

[370] I agree with the Crown submission that the decision of the courts in R. v. White, [2013] B.C.J. No. 177(C.A.) and R. v. Beckford, [2014] O.J. No. 3317 (C.A.) are further judicial support for my conclusion.

[371] For these reasons, I conclude that the Applicant had no reasonable expectation of privacy in the unauthorized cell phone.

[372] If I am wrong on this, then, the Applicant had an extremely reduced expectation of privacy in the unauthorized phone limited by the very wide extent of the restrictions imposed on him by his LTSO and the PCCC rules and the monitoring and supervisory duties of his parole officers with respect to those conditions and rules and their instructions for compliance.

[373] I conclude, as well, that the search was conducted by Grey and Jansen reasonably and that it was not an unreasonable intrusion into his privacy. I accept that their purpose was for compliance with the LTSO, and reporting to the parole board, not to further a criminal investigation. On the evidence, the two photographs were discovered by chance, a single word was typed in to determine Internet capability, text messages were observed to exist but not read and the incoming phone call was not answered, although identifying “A.” might well have been within the realm of their purpose.

[374] Their search was cursory, especially when compared with that done by Frawley. It was limited to conditions mandating compliance: camera capability, ability to access the Internet, and, by chance, possession of pornography. Their search was confined to the limits of the Applicant's reduced expectation of privacy in the phone.

[375] I have listed their statutory authority above and I accept their testimony that they believed that they had parole officer authority to conduct the limited search that they conducted.

[376] They were under a short time frame to complete their report to the parole board. Section 135.1(5) requires that they “shall, immediately after the commitment of the offender, review the offender’s case, and as soon as possible but in any case, no later than 30 days… .” Their observations were included in the report.

[377] After their search, they returned the phone to be secured.

[378] For all of these reasons, I find that there was no breach of the Applicant’s section 8 Charter rights in respect of the unauthorized phone by Grey and Jansen at PCCC.

b) Fearon Analysis

[379] The Applicant strongly asserted that there was a failure by the parole officers to comply with the principles established by the Supreme Court of Canada in Fearon, and therefore, the evidence flowing from the search by the parole officers of the unauthorized phone at PCCC must be excluded.

[380] It is important to understand the principles identified by Justice Cromwell in reaching his decision, as summarized at paragraph 83, Justice Cromwell stated as follows:

[54] First, while cell phone searches — especially searches of “smart phones”, which are the functional equivalent of computers — may constitute very significant intrusions of privacy, not every search is inevitably a significant intrusion. Suppose, for example, that in the course of the search in this case, the police had looked only at the unsent text message and the photo of the handgun. The invasion of privacy in those circumstances would, in my view, be minimal. So we must keep in mind that the real issue is the potentially broad invasion of privacy that may, but not inevitably will, result from law enforcement searches of cell phones.

[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.

[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] … 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. …

[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.

[79] The law enforcement objectives served by searches incident to arrest will generally be most compelling in the course of the investigation of crimes that involve, for example, violence or threats of violence, or that in some other way put public safety at risk, such as the robbery in this case, or serious property offences that involve readily disposable property, or drug trafficking. Generally speaking, these types of crimes are most likely to justify some limited search of a cell phone incident to arrest, given the law enforcement objectives. Conversely, a search of a cell phone incident to arrest will generally not be justified in relation to minor offences.

[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. … 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.

[381] It is agreed that the arrest on September 25, 2012 was lawful.

[382] I find that the search was conducted by the parole officers who had a reason based on a valid law enforcement purpose to conduct the search, and that that reason is objectively reasonable. I have already identified in these reasons, the purposes as articulated by the parole officers and, as set out in the legislation. I accept that one of the valid law enforcement purposes was for the protection of the public from a long-term offender. The Applicant is a special class of offender and the legislated paramount concern for the parole officers was the protection of the public. The approach taken by the Applicant in his submissions is too narrow. The Applicant was under arrest because of the suspension warrant, Ex. 31. The parole officers, in order to conduct their due diligence for their A4D, having seen possible camera capability and a smart phone type of phone, were required to inform the parole board as to whether either function had been disabled or was functional. They were looking for no further evidence. The two pornographic photos were found by chance. The legislated timeframe within which they were working as set out in s. 135.1(5) was “immediately after the commitment of the offender, review the offender’s case and, as soon as possible but in any case, no later than 30 days after the commitment, cancel the suspension or refer the case to the board, together with an assessment of the case.” The cell phone could provide evidence concerning the relationship and possibly the geographic location. In these circumstances, it can be said that their investigation would have been stymied or significantly hampered absent the ability to perform their cursory search. The A4D was time locked October 9, 2012, within 14 days of the arrest.

[383] I find that the nature and extent of the search was tailored to the purpose of the search. The arrest was for the suspension warrant. The parole officer investigation was focused on breach of conditions issues. Their search was cursory and tailored to their duties, namely camera capacity and Internet accessibility and any other evidence related to geographic location, and reporting female relationships. What they did not do is telling. They did not answer the incoming call. They did not search to see what, if any, Internet sites had been accessed. They did not read the texts. They did not look at the contacts. They investigated for camera capacity and Internet access, and concluded that search within 3 minutes. Their search was similar to the example set out in para. 54 of Fearon. It is in accordance with para. 57 in that there was no routine browsing of the cell phone in an unfocused way. It is also consistent with the example and principles set out in para. 76 of the case. The law enforcement objectives of these parole officers were properly focused on protection of the public. A decision had to made under s. 135.1 to cancel the suspension or refer the matter to the parole board, together with an assessment of the case. There was an immediate investigative purpose as I have described.

[384] The note taking by the parole officers can be viewed as not meeting the Fearon standard even when supplemented by their testimony. But this high standard was not the law at the time of their actions. Grey reported the details of his search in his A4D, Ex. 27. He does report what was searched and his testimony indicates why. As to the “how”, it is my opinion that given the very limited and rudimentary search done by the parole officers, his notation, “it was a camera phone, had a picture of a woman’s vagina, a picture of M.B. naked, access to the Internet, and several text messages,” meets the spirit of Fearon. The notes show what they found, how long the search was, where they went in the phone and where they did not go.

[385] Justice Cromwell held that the Crown bears the burden of establishing that the search incident to arrest was lawful. I find that the Crown has met that burden in this case.

c) Section 24(2) Charter

[386] If I am wrong on this analysis concerning the search of the unauthorized cell phone, then under s. 24(2) of the Charter, I find that the Applicant has not satisfied me that admission of the evidence would bring the administration of justice into disrepute.

[387] At best for the Applicant’s position, he had an extremely reduced expectation of privacy in the unauthorized phone.

[388] This was not a serious breach of the Applicant's s. 8 rights. The parole officers honestly believed that they had the authority to conduct what amounted to a very cursory search limited to their responsibilities as parole officers. Brooker believed that they had that authority and I find that he did not participate in the search at PCCC because he knew that he required a search warrant, which he later lawfully obtained. The parole officers were investigating for compliance by a high risk offender and they were operating within a legislatively limited timeframe. The same, as was said in Fearon, can be said in this case,

[95] … the first factor favours admission of the evidence. There is not here even a whiff of the sort of indifference on the part of the police to the suspect’s rights that requires a court to disassociate itself from that conduct. The police simply did something that they believed on reasonable grounds to be lawful and were proven wrong, after the fact, by developments in the jurisprudence. That is an honest mistake, reasonably made, not state misconduct that requires exclusion of evidence.

[389] The impact of any breach of the Applicant's s. 8 rights is minimal in this case. The intention of the parole officers was to search with regard to compliance with the conditions of his release. The Applicant knew that they could examine his cell phone to determine if he had complied with his release conditions. The parole officer search was cursory and limited to their responsibilities. The police had more than sufficient grounds to obtain a search warrant for the unauthorized cell phone. Again, the words of the Court in Fearon are applicable,

[96] … in the particular circumstances of this case, the trial judge found, in effect, that Mr. Fearon had not established that the invasion of his privacy had been particularly grave. This conclusion is supported by the fact that Mr. Fearon did not challenge the warrant that was subsequently issued for the comprehensive search of the cell phone. This amounts to a concession that, even if the findings of the initial search were excised from the information to obtain that warrant, reasonable and probable grounds were still made out. As the trial judge noted, “[t]he unchallenged warrant mitigates against both the seriousness of the assumed earlier breach and the impact on [Mr. Fearon’s] Charter -protected interests”: Ruling, at para. 54. So we are not here concerned with a search that could not have been legally conducted at all. Mr. Fearon’s privacy interests were going to be impacted one way or the other, and the particular breach of his s. 8 rights in this case did not significantly change the nature of that impact …

[390] The ITO disclosed the details of the investigation of September 25, 2012 at U[...] and by the parole officers of the unauthorized phone at PCCC.

[391] I find that society has a significant interest in the adjudication of this case on its merits. The long-term offender order is one of the most significant designations under our criminal law. The long-term offender is deemed to be a significant risk to society in the absence of controls and monitoring and supervision. While such an offender has Charter rights, those rights are contextual (Bourdon, para. 86). The evidence of the search of the unauthorized cell phone is highly reliable. It is also of significant importance to the Crown's case. Exclusion of the evidence from the unauthorized cell phone would undermine the truth seeking function of the justice system.

[392] Therefore, on the evidence before this court, I would have admitted the results of the search and seizure of the unauthorized cell phone, even if the Applicant’s s. 8 Charter rights had been breached. The outcome in Fearon supports my decision.

d) Frawley Search

[393] If I am wrong in that, I further find that the evidence obtained by Frawley, was not “obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter…” within the meaning of s. 24(2).

[394] The Information to Obtain the search warrant to seize the unauthorized phone from CSC and to analyze it, set out more than sufficient grounds even in the absence of the information about the search from Grey and Jansen. Such grounds include the cell phone was concealed; it was not authorized; it was found on the Applicant's person at a location at which he was not authorized when he was with a female for whom he had no authority; and he was subject at the time to the conditions of his LTSO and the house rules at PCCC. Brooker knew all of this and set it out in the ITO. He also related the use of a cell phone to the ongoing criminal charges. As I have stated in para. 390, the ITO allowed for judicial review of the investigation to that point.

[395] I conclude that there was no breach of the Applicant's s. 8 Charter rights in regard to the unauthorized phone in respect of the search by the parole officers at PCCC or by Frawley.

IX. DECISION

[396] The Applicant’s response to Grey’s question, “What are you doing here?” while Grey was walking to the basement apartment is not excluded.

[397] The statements made by the Applicant at the post suspension interview are excluded from the evidence in this case.

[398] There was no search of the unauthorized cell phone on the driveway at U[...] by Golemiec, when he took possession of the phone, or at 12:52:07.

[399] The results of the search of the unauthorized phone at PCCC and by Frawley are not excluded. The results are admissible as evidence at this trial.

Honourable Mr. Justice Gary W. Tranmer

Released: April 5, 2016

CITATION: R. v. Bourdon, 2016 ONSC 2113

COURT FILE NO.: CR-14-0188-00

DATE: 2016 Apr 05

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

RENE RONALD BOURDON

DECISION ON CHARTER APPLICATIONS TO EXCLUDE EVIDENCE

Tranmer J.

Released: April 5, 2016