Court File and Parties

COURT FILE NO.: CRIMJ (P) 1412/16 DATE: 20160916

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN D. D’Iorio, for the Respondent Respondent

- and -

DANIEL NEILL D. Connally, for the Applicant Applicant

HEARD: August 3-4, 2016 at Brampton

REASONS FOR JUDGMENT

Justice F. Dawson

1The accused is charged with possessing and making available child pornography contrary to ss. 163.1(4) and 163.1(3) of the Criminal Code. The only issue raised at trial is whether exigent circumstances existed at the time the police seized his BlackBerry cell phone without a warrant. After the seizure the police obtained a search warrant before searching the phone and an attached memory card and locating evidence essential to the prosecution of the accused.

2It is the accused’s position that because exigent circumstances have not been established the warrantless seizure of his cell phone constitutes a violation of s. 8 of the Charter and that the evidence located during the subsequent search of the phone should be excluded pursuant to s. 24(2) of the Charter.

3It is the Crown’s position that exigent circumstances have been established and that the warrantless seizure of the accused’s cell phone was reasonable and not in violation of s. 8 of the Charter. Alternatively, Crown counsel submits that any s. 8 violation was minor and was committed by the police in good faith. As a warrant was obtained to search the phone, there was minimal interference with the accused’s privacy interests and the test for exclusion of the evidence pursuant to s. 24 (2) of the Charter has not been met.

The Investigation Leading to the Seizure

4American authorities received reports from both Facebook and Twitter that a user had uploaded pornographic images of young males to their Facebook and Twitter accounts. The uploads occurred in December 2013. After notifying the American authorities both Facebook and Twitter closed the accounts in question. The Facebook account had been created in the name of “Daniel J. Neill” with a date of birth of January 4, 1969, a web address of “facebook.com/boysmasterdjn”, an e-mail address of treedcockatoodjn@gmail.com and listing a phone number in the 905 area code in Ontario. The Twitter account was “twitter.com/keysersozedjn” with the same email address as the Facebook account. The Twitter page had information which described the account holder as, amongst other things, a “gay”, “haunted”, “unemployed”, “homeless” and “perverted” person. All tweets ended with DJN, which correspond with the initials of the accused. The same initials appear at the end of the Facebook address and the email address linked to both social media accounts.

5The American authorities passed this information to the RCMP. After conducting an initial investigation the RCMP forwarded a package of information to the Peel Regional Police (PRP) because it appeared that a person named Daniel J. Neill lived in the Mississauga area. Cst. Steven Martin of the PRP continued the investigation.

6The investigation revealed that the phone number on the Facebook account was linked to a “Google Plus” social media account in the name of Daniel J. Neill. That account had an email address and listed a public park as a residential address. The Google Plus account was linked to a YouTube account which was in turn linked to a commercial website called “Gayboystube.com”, That website contains explicit sexual content relating to young looking males. The link to that website was under the user “treedcockatoo.djn.” The user described himself as “homeless, immoral, dirty and perverted”. The user indicated a strong interest in having sex with gay boys aged 12 or 13 who had small feet.

7Significantly, the user of the various internet accounts I have referred to posted pictures and videos of himself. Those photos and other posted information indicated that the account holder frequented Tim Hortons and had been involved in disputes with some Tim Hortons employees. Tim Hortons locations have public WIFI. The internet protocol (IP) addresses sometimes used to upload child pornography to the social media accounts in question were not residential but public in nature.

8The last access by the account holder to his Twitter account was on December 27, 2013. The IP address used for such access was assigned to Research in Motion (RIM). That was an indication that a BlackBerry device of some kind had been used to connect via a data link as opposed to WIFI. Earlier that day eight images of child pornography had been uploaded to the Twitter account using a non-residential IP address; probably over a public WIFI network such as the one available at Tim Hortons.

9The investigation determined that there was a person named Daniel J. Neill with the date of birth posted on the social media accounts who had a series of contacts with the PRP. A police photograph or “mug shot” was available for that person. When Cst. Martin compared the police photo to the photos and videos the account holder of the Facebook and Twitter accounts had posted, they appeared to be the same person.

10Cst. Martin testified that his investigation also revealed that the Daniel J. Neill in question was of no fixed address. At some point Mr. Neill had been living in a Mississauga Park. As Cst. Martin had no way to locate the Daniel J. Neill who was a person of interest he put an “alert” on the Canadian Police Information Computer (CPIC) asking any police department in Canada that had contact with that person to contact Cst. Martin. That alert was posted on October 14, 2014.

11On March 3, 2015 Cst. Martin was contacted by the Niagara Regional Police (NRP). That police force had contact with a Daniel J. Neill with the same date of birth in connection with a “neighbour dispute”. Cst. Martin was advised that Mr. Neill was staying at the Sherkston Motel in Port Colborne, Ontario for the month of March.

12Cst. Martin testified that he wanted to talk to Mr. Neill. The officer felt it was very unusual for someone to be posting child pornography to the internet in such an open fashion using his own name. In his experience, persons transmitting child pornography usually try to hide their identity. I accept Cst. Martin’s evidence that he thought it was quite possible that someone else had established the social media accounts posing as Mr. Neill and then posted the child pornography. He felt that the only way he could move forward with his investigation was to locate and speak to Mr. Neill to try to determine whether there was an alternate suspect. However, Cst. Martin was also concerned that if Mr. Neill was in fact responsible, speaking with Mr. Neill would tip him off and lead to Mr. Neill taking steps to delete or destroy electronic or digital evidence.

13Significantly, the NRP advised Cst. Martin that they had not been able to see inside Mr. Neill’s room at the Sherkston Motel. Cst. Martin was in a position where he had no information or evidence that Mr. Neill had a computer, smart phone or any device capable of accessing the internet. Therefore, he believed he did not have grounds to obtain a search warrant for Mr. Neill’s motel room. I accept Cst. Martin’s evidence in this regard.

The Seizure of Mr. Neill’s Cell Phone

14On March 31, 2015 Cst. Martin and Cst. Shawn Artkin drove to the Sherkston Motel in Port Colborne. Cst. Artkin had not been working on the case but Cst. Martin told him about the investigation during the drive. They were driving an unmarked black sports utility vehicle. When the officers arrived at the motel they found it was a small motel in a rural area. It was out in the open surrounded by fields. After driving through the parking lot they decided their presence would be obvious if they stayed there. They did not want to knock on the door to Mr. Neill’s room. If he was not there but someone else was, that person might tip Mr. Neill off which could lead to the destruction of evidence.

15The officers drove to a location down the road and parked on a side road. They could see the entrances and exits to the motel parking lot as well as the door to room 6 where Mr. Neill was staying.

16Within a short time a pickup truck pulled up to room 6. A male, who might have been the accused, exited room 6 carrying a garbage bag. The police were too far away to positively identify the male as the person they wanted to speak to. The male placed the garbage bag around the side of the motel and got into the passenger side of the truck, which then drove towards the officer’s location. The officers were not able to make an identification.

17As the officers had only one vehicle they had to either follow the truck or keep watch on the motel. In cross-examination Cst. Martin pointed out that he did not know whether, if the person they wanted to talk to was in the truck, he would ever come back to the motel. It was the last day of March and the information Cst. Martin had was that Mr. Neill would be living at the motel for the month of March.

18The officers decided to follow the truck. They were very concerned that they might be detected. They were initially following the truck on open rural roads. They were required to make a number of turns to follow the truck.

19The truck entered the community of Crystal Beach and pulled up to a Royal Bank of Canada branch. The male passenger got out and went into the bank. The officers had to drive to a parking spot not far away to maintain observation. They were still not able to identify the male. The fact that they stopped near the Royal Bank made it more likely they would be detected.

20The male re-entered the passenger side of the truck and the truck proceeded to a Tim Hortons. The officers pulled into another parking lot nearby to maintain observation. Both Cst. Martin and Cst. Artkin said that the driver remained in the truck with the engine running. The male passenger went into the Tim Hortons. In these circumstances the officers expected that the male would only be inside a short time. However, more time went by than they expected.

21At that point the officers decided that Cst. Artkin would enter the Tim Hortons to see if the male was their person of interest. Cst. Artkin reviewed the police mug shot.

22Cst. Artkin testified that when he entered the Tim Hortons he observed the male sitting near the washroom with his back to a wall. He was looking at a BlackBerry cell phone. Cst. Artkin walked past the man’s location and entered the washroom. He was able to positively identify the man as the Mr. Neill depicted in the police photo. Cst. Artkin then purchased a coffee and returned to advise Cst. Martin about his observations.

23Both officers testified that one of their concerns was that the accused had determined that he was being followed and that he may at that very time have been destroying evidence on his phone or in other locations by using WIFI at the Tim Hortons to access the internet. Cst. Martin also testified that he was concerned that if he waited and simply followed the accused for a further time they might lose the accused or that they would be detected if they had not been already. He had no idea where the accused was going due to his history of having no fixed address.

24At that point the officers formulated a plan to enter the restaurant and take the cell phone from the accused without examining it. Their plan was to put the phone into airplane mode to sever any contact with the internet. Both officers testified they are trained to do that in order to prevent such devices from being wiped remotely. Both officers also testified that evidence on a cell phone can be lost if the cellphone is dropped in a liquid, or physically damaged in other ways. Such devices can also be quickly wiped or secured by the user so that data on the device cannot be accessed or recovered.

25The officer entered the Tim Hortons and approached Mr. Neill. Cst. Martin identified himself and then quickly took the accused’s BlackBerry and handed it to Cst. Artkin who put it into airplane mode. The officers did not make even a cursory examination of the cell phone.

26The officers then tried to engage the accused in a conversation about Cst. Martin’s investigation. Cst. Martin said that if the accused provided information about an alternate suspect the police would have explored the possibility of obtaining written consent to examine the BlackBerry with a view to eliminating the accused as a suspect. Cst. Martin testified that although he felt he had grounds to arrest the accused he did not wish to do so unless he had physical evidence or an admission from the accused. He felt it would be more intrusive than circumstances required to arrest the accused and transport him back to Peel Region, when he was able to preserve the phone and have it examined pursuant to a search warrant to see if the accused was involved.

27However, the accused was so upset, confrontational and argumentative that the officers could not engage the accused in a meaningful conversation about the investigation. All efforts to calm Mr. Neill down failed. Cst. Martin provided the accused with his business card. It turned out that the truck was driven by the accused’s mother and the officers had some brief conversation with her.

28The accused then left in the truck driven by his mother. The officers returned to Peel Region. Cst. Martin applied for and was granted a search warrant. The accused does not challenge the warrant and concedes that it was adequate to permit the police to do a technological examination of the cell phone.

29As it turned out the police were never able to crack the security on the BlackBerry cell phone. Consequently, it remains unknown whether the cell phone contains relevant evidence. However, the phone held a separate memory card on which evidence of the offences charged was found.

The Exigent Circumstances Issue

30As noted by Rosenberg J.A. in R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456, at para. 27:

27The common law power to search for evidence in exigent circumstances has largely been codified since the enactment of the Charter. As the trial judge noted, s. 487.11 of the Criminal Code authorizes a warrantless search by a peace officer if the conditions for obtaining a warrant under s. 487(1) (the normal search warrant provision) or s. 492.1(1) (the tracking warrant provision) exist “but by reason of exigent circumstances it would be impracticable to obtain a warrant”. Similar provisions exist in s. 117.02 for search and seizure of weapons and in s. 11(7) of the Controlled Drugs and Substances Act.

31Justice Rosenberg went on to indicate that since the enactment of the Charter, cases which hold that the urgency of the situation eliminates the necessity to obtain a warrant are premised on the assumption that grounds to obtain a warrant existed (para. 29).

32In reference to the exigent circumstances exception in s.11(7) of the Controlled Drugs and Substances Act, Doherty J.A. held in R. v. Phoummasak, 2016 ONCA 46, at para. 12, that exigent circumstances exist if “the police have grounds to obtain a warrant (the probable cause requirement)”, but “believe, based on reasonable grounds, that there is imminent danger that evidence…will be destroyed or lost if the police do not secure the premises without delay (the urgency requirement)”. In the present case the cell phone is like the premises which contained the evidence.

33I will deal first with the probable cause requirement. In the case at bar the police immediately obtained a search warrant after securing the accused’s cell phone. As the accused takes no issue with the granting of the warrant, the probable cause requirement is established. The situation as it was known to the police at the time they entered the Tim Hortons to seize the phone was completely set out for the justice of the peace in the information to obtain the search warrant (ITO). In my view, those circumstances are certainly capable of supporting the issuance of a search warrant.

34Turning to the urgency requirement, I accept the testimony of the officers that they were concerned they may have been detected as they followed the truck in which the accused was a passenger. I also accept their evidence that they believed the accused may have been deleting or destroying evidence while in the Tim Hortons. There were objective grounds for their concerns and beliefs. The officers had been watching the motel in circumstances where they could not conceal themselves. They had then followed the truck for a considerable distance, much of it in an open rural setting, and had matched the truck turn for turn. They had also stopped near the bank and then near the Tim Hortons. Although the driver remained in the truck with the engine running the accused was inside the Time Hortons for longer than expected in the circumstances. In addition, Cst. Martin was aware of the accused’s likely use of the WIFI available at Tim Hortons locations in the past. The accused was seen to have a glass coffee cup and not a paper cup, as he sat inside Tim Hortons using a BlackBerry. There was evidence that a RIM device, such as a BlackBerry, had been used to access the closed Twitter account on the same day that child pornography had been uploaded to the site.

35Both officers also gave evidence about the speed and ease with which evidence can be lost or deleted on a device like a cell phone. Cst. Martin was aware that sometimes that material could be recovered but he also had experienced circumstances in which it could not be.

36In my view these circumstances reasonably support the officers’ beliefs that the circumstances were such that there was an imminent danger of the loss or destruction of important evidence. Even if the accused was not deleting evidence at the time the officers entered the Tim Hortons, he may well have done so after the officers spoke to him. The officers were entitled to continue their investigation. In the circumstances all Cst. Martin could do to further his investigation was talk to the accused to see if there was an alternate suspect. If the accused was guilty but unwilling to cooperate, there was a likelihood that he would destroy evidence on the cell phone or by using the cell phone to access the internet. There was no way for the officers to obtain a warrant at that moment.

37The accused relies upon R. v. Silveira, [1995] 2 S.C.R. 297, for the principle that the police are not entitled to rely on exigent circumstances they have created or manufactured. He submits that is what occurred here. Counsel for the accused submits that by following the accused and then deciding to confront him the officers created the circumstances they now want to rely upon. The accused also submits that the police should have obtained a warrant before they went to Port Colborne.

38I disagree with both parts of this submission. Prior to observing the accused inside the Tim Hortons using his BlackBerry the police had no evidence that the accused was then in possession of a computer or smart phone. Until the officers came into possession of evidence that Mr. Neill had such a device they were lacking an essential fact needed to obtain a warrant to search any place for such a device or to seize such a device.

39Second, I am not persuaded that the evidence reasonably supports a claim that the police anticipated that what they did would create the urgency they now rely upon as exigent circumstances. See Phoummasak, at para. 15. This is not a situation in which it can be said that the police had grounds to obtain a search warrant but chose not to obtain one but instead chose to pursue other investigative steps for the purpose of creating exigent circumstances. The police did not have what was required to obtain a warrant until Cst. Artkin saw Mr. Neill using a BlackBerry inside Tim Hortons. They could not get a warrant before evidence may have been lost or destroyed. If the accused had already “made” the officers he was likely destroying evidence at that time. Once they spoke to him he would likely do so if they did not seize the phone. It was a “Catch 22”. There is no evidence there was any scheme or design on the part of the officers to create such a situation so they could seize the phone.

40I am satisfied that considering all of the surrounding circumstances the Crown has discharged its onus of showing that the warrantless seizure of the accused’s BlackBerry was reasonable due to exigent circumstances. The exigent circumstances arose at almost the same moment that the police became aware the accused had such a device, completing the existence of the grounds needed to obtain a warrant. No search of the phone was conducted until a warrant was obtained.

41There was no violation of s. 8 of the Charter.

In the Alternative – s. 24 (2)

42Even if I had found a violation of s. 8 I would not exclude the evidence pursuant to s. 24(2) of the Charter. I will briefly refer to each of the three avenues of inquiry required by s. 24(2) of the Charter as described in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. These avenues of inquiry must be considered having regard to “the public interests engaged by s. 24(2), viewed in a long-term, forward looking and societal perspective”: Grant, at para. 72.

43The first area of inquiry is the seriousness of the Charter-infringing state conduct. Assuming that the seizure of the accused’s cell phone was unreasonable, this does not change the underlying factual matrix of extenuating circumstances that I have found existed at the time of the seizure. In Grant, at para. 75, the court observed that the existence of extenuating circumstances related to the need to prevent the disappearance of evidence, “may attenuate the seriousness of police conduct that results in a Charter breach.” I find that to be the case here.

44I accept the evidence of the officers that they seized the cell phone out of a legitimate concern for the preservation of evidence in circumstances which reasonably supported that concern. The officers were acting in good faith and their quickly formulated plan always contemplated obtaining a warrant before intruding on the privacy interests of the accused further by examining the cell phone. Cst. Martin’s conclusion that he did not have grounds to obtain a warrant until he became aware that the accused had a device capable of accessing the internet was also entirely reasonable.

45The factual circumstances surrounding the seizure of the cell phone are not such that they call for the court to dissociate itself from the police conduct. I conclude that, while the seizure of the cell phone in violation of s. 8 would not fall at the least serious end of the scale, it is nonetheless not beyond the midpoint of the scale. While a consideration of this avenue of inquiry favours exclusion of the evidence, it does not do so by much. One of the reasons I attribute as much seriousness to this as I do flows from the fact that the police confiscated a device from the accused which was of value to him in both monetary terms and daily usefulness.

46I turn to the impact of the seizure on the Charter-protected interests of the accused. I considered the confiscation of the accused’s property under the first avenue of inquiry. However, I observe that privacy is what is primarily protected by s. 8. As the police did not undertake even a cursory examination of the cell phone until a warrant was obtained, the impact of the warrantless seizure on the accused’s protected privacy interests was minimal. At its highest the examination of the circumstances pertinent to this avenue of inquiry yields a neutral result from the perspective of the exclusion of the evidence.

47The third avenue of inquiry is society’s interest in an adjudication of the case on the merits. I must consider not only the negative impact of admitting the evidence, but also the negative impact on society’s interests that would result from its exclusion: Grant, at para. 80.

48The evidence in question is reliable evidence. It is not self-conscriptive in nature. It is strong evidence that a crime had been committed. The evidence is also important to the Crown’s case. Without this evidence the Crown’s case will fail. Taken together and evaluated from the perspective of the third avenue of inquiry, these circumstances favour the admission of the evidence: Grant, at para. 83.

49My admissibility decision ultimately depends on my balancing of the findings made under the three avenues of inquiry referred to. It is not a mathematical assessment but a principled one. When I undertake that balancing I conclude the scale tips in favour of admission of the evidence notwithstanding the s. 8 violation alleged. Given that the police were acting in good faith out of a concern to preserve evidence and obtained a warrant before examining the cell phone, I conclude that a reasonable person informed of all of the relevant circumstances and Charter values would conclude that the admission of the evidence would not bring the administration of justice into disrepute.

50Assuming the Charter violation alleged is established I would nonetheless admit the evidence.