BARRIE COURT FILE NO.: CR-14-126 DATE: 20160812 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – RAJEEV HENRY BALENDRA Defendant
Counsel: F. Temple, for the Crown H. Saini, for the Defendant
HEARD: August 9, 10 and 11, 2016
RULING ON VOIR DIRE
HEALEY J.:
NATURE OF THE CHARTER APPLICATION
[1] This is an application to exclude evidence obtained by the Ontario Provincial Police ("OPP") from one or more searches of a USB drive found in the possession of the accused at the time of his arrest, and from a search of the interior of a vehicle driven by him just prior to his arrest, on the basis that such searches were an infringement of his s. 8 Charter right not to be subjected to unreasonable search and seizure.
[2] Following what the defence asserts were three illegal searches, the OPP used the fruits of those searches to apply for and obtain a search warrant, which permitted a search of the contents of a phone and a GPS located in the vehicle, as well as the USB drive.
[3] The applicant argues that the warrantless searches were carried out in violation of s. 8 of the Charter, as the accused had a reasonable expectation of privacy in respect of both the USB drive and the van, none of the searches were incidental to the accused’s arrest, and accordingly, such warrantless searches were prima facie unreasonable.
[4] The applicant also asserts that the search following the warrant was invalid because the warrant was based upon an Information to Obtain that relied on the illegally obtained evidence gathered during the warrantless searches. After excision of the impugned portions of that Information to Obtain, the remaining information contained therein would be insufficient to permit a justice, acting reasonably, to find adequate grounds for the search.
[5] The applicant seeks a ruling that the search of the USB drive and vehicle constituted a breach of his right to be secure against unreasonable search and seizure, and that the admission of the evidence would bring the administration of justice into disrepute.
[6] The applicant is currently facing the following charges: fraudulent or unauthorized possession of credit card data; possession of property over $5,000 obtained by crime, conspiracy to commit both fraud and unauthorized use of credit card data; possession of identity information with intent, unlawful possession of a forged document, namely an Ontario Driver’s Licence; and possession of forged or falsified credit cards.
FACTS
[7] Officer Humber, a member of the OPP, was the only witness to testify on the voir dire.
[8] On March 13, 2013, while conducting random traffic checks on the Highway 400 northbound in the Central East Region, Officer Humber and his partner Officer Hicks detected what was believed to be a stolen vehicle. The vehicle, a red Dodge Caravan, was travelling northbound in the center lane of the three lane highway. Officer Humber’s belief that the van was stolen arose from information obtained from police databases that showed the vehicle on record with Toronto Police Services as a stolen vehicle. At that time, he was able to determine the name of the registered owner of the vehicle by accessing a police database available through the mobile data screen in his vehicle. He learned that the registered owner of the van was SSS Rent-A-Car.
[9] On that date, Officer Humber had been a police officer for approximately 26 years, held the rank of Sergeant, and was a supervisor of the Highway Safety Division for the Barrie Enforcement Team of the OPP’s Central Region Traffic unit.
[10] Officers Humber and Hicks requested backup, and continued to follow the vehicle northbound on Highway 400, approaching the exit to Mapleview Drive in the City of Barrie. The vehicle was driving at the speed limit. Another police vehicle, a marked cruiser, entered onto the highway and remained behind the van. Just prior to the Mapleview Drive exit, he observed the van quickly swerve across the right-hand lane of traffic, across the bullnose, and onto the exit ramp. It was Officer Humber's impression, based on his knowledge that the vehicle was stolen, that this was an evasive maneuver to avoid police pursuit, although agreed with defence counsel that the sudden movement could also be consistent with realizing the location of the exit at the last moment. Officer Hicks, who was driving, maneuvered the police vehicle in front of the van and brought it to a stop on the shoulder of the exit ramp, with the back-up vehicle arriving behind to block the van. Officer Humber quickly exited the police vehicle and immediately drew his service revolver, pointing it at the passenger still inside the van. He testified that he did so on the basis of his experience and belief that both the van and its occupants presented a possible danger to both himself and his partner, because the van itself could be used as a weapon, and due to the potential for the occupants of stolen vehicles to possess weapons. While the officer had no specific information that there were weapons or the potential for violence associated with this particular vehicle, he testified that he has had the experience of stopping stolen cars whose occupants had weapons. He confirmed that he does not regularly pull out his revolver for regular roadside stops.
[11] Both occupants complied with police demands. Officer Humber dealt with the passenger, who was arrested at 3:09 p.m. for possession of stolen property. This individual was later identified as Serhiy Pidliskovyy. At the time of Pidliskovyy's exit from the vehicle, he was holding onto an object that the officer recognized to be a wallet. The wallet was searched at the roadside, at which time Officer Humber located an Ontario Driver’s Licence in the name of Matthew Spazza with a date of birth of September 9, 1980, bearing a photograph of Pidliskovyy. Also located in the wallet, behind the driver’s licence, was a patient identification card from Mount Sinai Hospital bearing Pidliskovyy's name. Officer Humber testified that this latter piece of identification caused him to be suspicious about the driver’s licence, and inquiries made by him later that day to the Ministry of Transportation showed that the licence number, name and address do not exist in their records.
[12] At approximately the same time, the applicant, who had been driving the van, was arrested by other officers for possession of stolen property and careless driving, and taken into custody. The applicant was never asked to produce an ownership for the vehicle. The van was removed by a towing company and secured in a compound within the City of Barrie.
[13] Officer Humber arrived at the OPP detachment office in Barrie at approximately 3:25 p.m. He testified that both the passenger and the applicant arrived at the same station for processing within 15 minutes of that time. The officer was not involved in processing either the applicant or Pidliskovyy, but instead continued with the investigation and preparation of the bail documents. He was able to confirm the identities of both the passenger and the applicant, and learned that the applicant was subject to a driver’s licence suspension, which was imposed on him for driving a vehicle while under suspension.
[14] At the detachment, he became aware that Constable Hitch was in possession of a passport-sized photograph of Pidliskovyy that had been discovered during the search of the applicant, located in a pocket in the applicant's clothing. On the back of the photograph is a stamp bearing the name and address of the photo lab where the photograph was taken, and indicating that the photo was taken on February 26, 2013. The photograph in question is an identical likeness to that on the driver’s licence found in Pidliskovyy's possession, which bore an issue date of June 13, 2010. The other significant item found in the possession of the applicant was a USB drive, which came to Officer Humber's attention at 9:55 p.m.
[15] When presented with the USB drive, Officer Humber decided that it could hold valuable information to assist in facilitating the creation of what appeared to be a counterfeit licence. He reached this conclusion due to the combination of the photograph found in the possession of the applicant, the apparently counterfeit licence possessed by Pidliskovyy, as well as his own knowledge that USB drives are capable of data storage. He testified that at that time in the evening, he was engaged in investigating the impersonation offence, although gave no evidence about when such charges were laid against either Pidliskovyy or the applicant. He was also preparing their bail documents.
[16] Shortly after it was brought to his attention, he inserted the USB drive in a computer at the detachment, determined that it was not password protected, and looked at its contents for approximately 10 to 15 minutes. He saw that it contained, among other things, multiple credit card numbers and what he believed to be a driver’s licence template. At that time, he made only brief notes about what he looked at on that drive, but no other notes about any further aspect of the process that he followed when accessing it. His notes record that the search of the USB drive was "incident to arrest", and accordingly the officer agreed that he understood that there was a privacy interest in relation to the USB drive, and had turned his mind to his right to engage in such search without a warrant.
[17] Officer Humber confirmed that the applicant had been arrested at that point only in relation to the facts related to the stolen vehicle and careless driving. He confirmed that he saw no information on the memory stick in relation to either of those offences, nor was there any indication that he might expect to find any at the time that he accessed the data on the drive. However, it was the combination of the photograph of Pidliskovyy and the counterfeit driver’s licence, one in the possession of each of the alleged offenders, which caused him to believe that he had a right to look at the USB drive incident to the arrest of each of them, as both were being investigated for impersonation and fraud, and both had been jointly charged with the possession of the stolen vehicle.
[18] The officer agreed with defence counsel that a USB stick can be characterized as an extension of the computer, and could not be readily accessed or used as a telecommunication device, in the same way as a phone, in the state that it was on March 13, 2013.
[19] Officer Humber testified that he was of the belief that he could search the USB drive incident to the arrest, because he was still investigating the manufacture of the counterfeit driver’s licence. As of March 13, 2013, it was his understanding that he had authority under the common law to search items found around or on the arrested person, provided that he was searching for evidence pertaining to the charges that he was investigating. He indicated that he has taken formal training on the topic of search incident to arrest both through the Toronto Police Services and the OPP in the early 2000s, and receives annual presentations on the topic including updates on developments in the law. He did not believe that he needed a warrant to look at the USB drive, because he believed that the device held information directly relevant to his ongoing investigation of the crimes of fraud and/or and identity theft.
[20] On March 14, 2013, at approximately 10:47 a.m., Officer Humber attended at the impound lot where the van was being held for the purpose of searching the vehicle more thoroughly than had been done at the time of the applicant's arrest. He did not seek a warrant prior to that search because he still understood that the vehicle was stolen, and further understood that there would be no expectation of privacy with a stolen vehicle. At that time, he had no information that either the applicant or Pidliskovyy owned the vehicle, and he continued to be aware that the applicant was a suspended driver. Based on his experience as an officer and his knowledge of the Highway Traffic Act, he was aware that, even had the vehicle not been stolen, the vehicle would be impounded for seven days at a minimum once the applicant had been arrested for that offence. He confirmed that he wanted to perform the search of the van in part because of what he had found on the USB drive, and his intent was to further the investigation.
[21] In the course of his search of that vehicle, the officer found an OHIP card in the name of someone other than the applicant or Pidliskovyy, a rental agreement purportedly issued by SSS Rent-A-Car to an individual with the surname of Sookhoo, showing that the vehicle was rented on April 11, 2012, and the inside of a cardboard gum package with the name, address and birthdate of another individual written on it. He continued his search of the vehicle, and in the course of turning on the interior lamps, he noticed a loose ceiling compartment, from which he extracted a concealed plastic bag containing what appeared to be a number of credit cards. At that time he noted that the name Matthew Spazza appeared on some of the cards, but took no further steps to process the contents of the bag other than to take it, along with the other items found in the vehicle, back to the detachment to be secured.
[22] On March 19, 2013, the officer again accessed the USB drive in order to look at the information contained on it, and printed off numerous pages containing approximately 2,500 credit card numbers, the Ontario Driver’s Licence that he believed to have been used as a template, and a photograph of an unidentified male. He testified that he observed the same information on that date that he had seen on March 13. At that time he did not take steps to preserve an exact image of the contents of the digital device before accessing those contents. Nor had he done so on March 13. No particular notes were made of the procedure used to access the information on March 19. He testified that he made the decision to print off the credit card numbers in particular because he believed that another offence had been "stumbled across" during the search of the applicant, from the discovery of the USB drive. Using the credit card information, he then contacted a number of banks and financial institutions for the purpose of obtaining information about whether those card numbers had been compromised for the purpose of fraud or theft. Eventually each of those institutions provided him with information on the status of the cards and their use, with an estimate of resultant financial loss.
[23] The officer testified that he did not seek a warrant before access the material on the USB drive and printing it, because he felt that he was lawfully in possession of the information, having seen it on a prior occasion incident to the arrest of the applicant.
[24] An issue arose during the testimony of this witness as to the number of times that he viewed the contents of the USB drive. During examination in chief he referred to the fact that he had accessed the device a "couple" of times, and then gave evidence specific to his actions in relation to the device on March 13 and March 19, 2013. On cross-examination he was again asked to confirm how often he had accessed the drive, and he reiterated that he may have viewed it a couple of times, but that there also could have been three or four searches of the memory stick, all to observe the same information that he had seen initially on March 13. The officer was given an opportunity to review his notes over a court recess for the purpose of determining whether he had accessed the USB drive on occasions other than the March 13 and 19 dates. After being given an opportunity to do so, he confirmed that there were no other occasions on which he viewed its contents. He then reviewed with the court, using his notes, his daily activities between those two dates for the purpose of showing that he was engaged in activities not related to this investigation, or was not working on the days in question. He again confirmed that after printing the contents of the drive on March 19, he sealed it in an evidence envelope and did not look at it again. He confirmed that he had had an opportunity to review his notes prior to testifying on the voir dire, but stated that he had not looked specifically at those dates on which he was not involved in this particular matter.
[25] The court was asked to find that the officer was deliberately misleading the court in relation to his activities with the USB drive, because of the inconsistency between his evidence before and after he was given an opportunity to review his notes. To the contrary, I find that the officer was attempting to be extremely careful with the court and, having realized an error in making the suggestion that he had viewed the USB drive three or four times, he consciously attempted to remedy that error. This conclusion is reached for several reasons. First the officer was a credible witness overall, who testified carefully and thoroughly and with minimal reference to his notes, without exaggeration, defensiveness, or any of the usual hallmarks of lack of candour. His testimony left no doubt that he spent considerable time dealing with the lists of numbers found on the USB drive in relation to his communications with the financial institutions and his preparation of the Information to Obtain. In those circumstances, it is understandable that he may have a cloudy memory about whether, in working with those numbers, he had viewed them from the USB drive or in their printed format at any particular time. Second, there was no reason for the officer to have volunteered, as he did initially, that he may have viewed the USB drive three or four times, other than that he was attempting to be completely candid with the court. Third, the explanation provided by the officer was believable, indicating that in his previous review of his notes he had never turned his mind specifically to the question asked by counsel about whether he had accessed the USB drive between those two dates, and he had not reviewed his notes for those the dates that he believed would not contain information relevant to this case.
[26] On March 19, 2013, Officer Humber also recorded all of the information found on the credit cards that he had discovered in the concealed area of the vehicle. He testified that after printing the information from the USB drive, the drive was placed in a sealed envelope and delivered to an officer in the e-crimes unit on June 28, 2013, the date after which a warrant had been issued for the search of that device. Many of the cards, which on their face were purportedly issued by five different financial institutions, bear the name of Matthew Spazza, being the same name on the counterfeit driver's licence possessed by Pidliskovyy.
[27] Officer Humber testified that he decided to seek a search warrant so that a more thorough and intrusive search could be performed on the USB drive, such as the retrieval of deleted items and procedures that would require more technical skill. He began to prepare the Information to Obtain sometime after March 19, 2013, consulting with the e-crimes unit about the technical aspects required of such a search warrant. The warrant was issued on June 27, 2013.
[28] It is conceded by defence counsel that the initial stop of the vehicle, the detention and the arrest of the applicant, and the initial seizure of the van were all constitutionally valid, but that the use of a gun in the arrest of the applicant should be taken into account in any s. 24 (2) analysis undertaken in this case.
THE ISSUES
[29] The issues to be decided on this motion are as follows:
- Did the applicant have a reasonable expectation of privacy in respect of either the van or the USB drive?
- If he did, was any search done in respect of those items carried out incidental to his arrest?
- If the searches of the USB drive and the vehicle were unreasonable and therefore infringed s. 8 of the Charter, should the evidence obtained from such searches be excluded pursuant to s.24 (2)?
- If the evidence is excluded and excised from the Information to Obtain, can the remainder of the ITO meet the test for the authorization of the warrant?
THE LAW
Reasonable Expectation of Privacy
[30] In order to challenge the legality of the search of his USB drive and the vehicle, the onus is on the applicant to establish that his personal privacy interests were engaged by the searches: R. v. Marakah, 2016 ONCA 542 at para. 27, citing R. v. Edwards, [1996] 1 S.C.R. 128 (SCC) at paras. 33, 45. It is only if the applicant can establish that he had a reasonable expectation of privacy that s. 8 will be engaged, following which the court must then determine whether the search or seizure was reasonable.
[31] Marakah, a decision released just last month, provides direction on the issue of an accused’s standing to challenge a search or seizure. The Court of Appeal noted that it is well established that in determining whether an accused has a reasonable expectation of privacy, courts must take a contextual approach and consider the totality of the circumstances: para. 31. See R. v. Edwards, [1996] 1 S.C.R. 128 at para. 45; R. v. Cole, 2012 SCC 53 at para. 39.
[32] In Marakah, the Court of Appeal confirmed that the "totality of circumstances" approach set out in Edwards and restated by the Supreme Court in other cases such as Cole remains the proper framework within which to address informational privacy issues, as well as those cases that concern a privacy interest in property. The case before me raises both.
[33] The factors set out in Edwards that are relevant to standing, and which are non-exhaustive and non-restrictive, include:
(i) presence [of the accused] at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or items; (v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation.
[34] In Cole, a case that specifically addressed electronic communications, the test for whether a reasonable expectation of privacy exists in relation to the object or subject matter of the search was truncated as follows:
- The "totality of the circumstances" test is one of substance, not form. Four lines of inquiry guide the application of the test: (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 (Tessling, at para. 32; Patrick, at para. 27).
[35] Counsel disagreed about whether the expectation of privacy pertains to the object or place searched, as opposed to the information or objects derived from that search. From my reading of the cases, and in particular Cole, the analysis can include either, depending on the circumstances. In Cole, the respondent asserted that he had a reasonable expectation of privacy in his employer-issued work computer. The Supreme Court agreed, but at paras. 41-42, noted that the concern in the case was with “informational privacy” and that the “subject matter of the alleged search is the data, or informational content of the laptop's hard drive, its mirror image and the Internet files disk -- not the devices themselves". Further, the analysis of Fish J. in Cole begins at para. 34 with the following statement:
Section 8 of the Charter guarantees the right of everyone in Canada to be secure against unreasonable search or seizure. An inspection is a search, and a taking is a seizure, where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18; R. v. Evans, [1996] 1 S.C.R. 8, at para. 11; R. v. Borden, [1994] 3 S.C.R. 145, at p. 160). [Emphasis added.]
[36] Applying the "totality of the circumstances test" first to the USB drive, it is the data found on that device that is of concern, which included hundreds of credit card numbers (along with a few names), a driver’s licence not belonging to the accused, and a photograph of an unidentified male. Entered into evidence on the voir dire is the follow-up information received from the financial institutions after they were provided with the credit card numbers. The content of those responses leads to the easy inference that the credit card numbers did not attach to cards issued to or belonging to the applicant.
[37] Whether the applicant had an interest in and a subjective expectation of privacy in the informational content of the USB drive is difficult to assess. There is no evidence about who placed the data on the USB drive or the chain of possession or control it passed through prior to ending up in the applicant’s pocket. There is no evidence about ownership or control in regard to the device from which the data on the USB drive was generated, downloaded or copied. The fact that the drive was found in the applicant’s pocket is the only indicia that he may have had an intention to retain control over the content of it. However, the fact that it was not protected by a password and therefore accessible to anyone with access to a computer diminishes, but does not eliminate, this expectation of privacy. Similarly, the fact that the USB drive was being carried in the applicant’s clothing, as opposed to being found in the privacy of his home, points to a lower expectation of privacy.
[38] However, the broader picture is that a USB drive has the capability to store extensive personal data in much the same manner as a computer, phone, or other personal electronic device, and accordingly a critical privacy interest is at stake that is vulnerable to compromise by state action. Potentially, the search and seizure of a USB drive can be akin to that of a personal computer, something which the Supreme Court in R. v. Morelli, 2010 SCC 8 characterized as one of the most intrusive and invasive of searches impacting on one’s privacy: para. 2. This was exactly the conclusion reached in R. v. Tuduce, 2014 ONCA 547 in the course of determining whether the search of a USB drive was valid; such a personal digital storage device is capable of storing extensive amounts of personal data, to which a high expectation of privacy attaches: paras. 69-75.
[39] This informs the consideration of whether the applicant’s subjective expectation of privacy was objectively reasonable. In Cole, the Court confirmed that the closer the subject matter of the alleged search lies to the biographical core of personal information about the accused, the more this factor will favor a reasonable expectation of privacy: para. 46. Similarly, in Marakah the Court distinguished between those cases in which the factors of control and access will have lesser significance in analyzing whether an expectation of privacy is objectively reasonable, such as where the information reveals "deeply personal, intimate details going to the appellant's biographical core": paras. 59, 63. In Marakah the information in question was text messages on the co-accused’s phone that had been sent by the appellant, which revealed nothing more than their discussions regarding the trafficking of firearms. Accordingly, in the absence of personal information the issues of control and access were of greater importance, and defeated the expectation of privacy because the court found that the applicant, as the sender of the text messages, had no ability to regulate or control what the co-accused did with those messages once delivered.
[40] Similarly, here the information contained on the USB drive revealed absolutely no personal details about the applicant. It did, however, reveal information that was suggestive of criminal activity – identification and extensive lists of credit card numbers, neither belonging to the applicant. The Crown argues that an individual cannot, objectively, have a reasonable expectation of privacy in information not belonging to that person and which in fact may be stolen. To the contrary, it is immaterial that the asserted privacy interest seeks to hide illegal activity: R. v. Spencer, 2014 SCC 43, at para. 36. This is because s. 8 seeks to protect not just the individual privacy rights of a citizen, but the degree of privacy which is necessary to be afforded to all citizens in order to uphold the values of a free and democratic society. It is true that the invasion of privacy in this case turned out to be minimal, but the broader issue is the invasion of privacy that could very easily result from law enforcement searches of these and other data storage devices.
[41] Often data is placed on a USB drive for the purpose of saving it from being lost or corrupted. Often data is placed on a USB drive because it is intended to be more easily portable for the purpose of sharing it with others. But until and unless the applicant decided to share the content of that USB drive with another individual, it had the potential to remain exclusively under his control. Even if he had shared it with someone, such as his co-accused Pidliskovyy, that in and of itself would not, in my view, necessarily preclude a reasonable expectation of privacy. We are left, of course, without knowing how many others were in possession of such information, if any, and the circumstances under which they came to obtain it. Again, in this case there is no evidence of any purpose for which the data was placed on the USB drive.
[42] Applying this contextual approach, there are factors that both support and undermine the recognition of a constitutionally protected privacy interest in the USB drive. However, on balance, given that a USB drive is quite capable of holding and revealing extensive personal information about a person in the same way as a computer, I find that the applicant has established that he had a reasonable expectation of privacy in relation to the USB drive.
[43] Having determined that the applicant’s s. 8 rights were engaged, the second stage of the analysis is to determine whether the search was reasonable. However before turning to that question, I will deal with whether the applicant can similarly establish such standing in relation to the vehicle.
[44] Generally, individuals can have a reasonable expectation that state agents cannot enter a vehicle driven by them in order to examine its contents: R. v. Belnavis, [1996] O.J. No. 1853; (1996) 29 O.R. (3d) 321 (Ont. C.A.); confirmed, [1997] 3 S.C.R. 341. However, this was not a case, such as Belnavis, where there is any evidence that the driver had the consent of the owner to operate the vehicle, which in Belnavis was found to give rise to the driver’s ability to control who entered or who was excluded from the vehicle. Such control was considered to be central to the privacy concept: para. 31 (C.A.).
[45] Applying the Edwards framework to the facts surrounding the vehicle in this case, the applicant cannot establish that he had a reasonable expectation of privacy in relation to that location. Of central importance to this case, the applicant’s suspended status as a driver means that he can have no expectation of privacy in respect of a vehicle that he is without lawful status to be operating. What he can expect, in fact, is that on discovery of his presence in and operation of a vehicle, he will be immediately stopped from having any possession of or control over that vehicle in accordance with the provisions of the Highway Traffic Act. His control is fleeting at best. The fact that he holds the keys does not cloak him with the authority to control who enters or uses that vehicle. Even more significantly, the evidence establishes that the applicant was not the owner of the vehicle. Although defence counsel argued that the rental agreements found within the vehicle cannot be used to establish the name of the registered owner of the vehicle without offending the rule against hearsay, it is not necessary to resort to that document to establish ownership. Officer Humber testified that he was able to ascertain the name of the registered owner from the database available to him in the police vehicle. He testified that the registered owner was the same company named on the rental documents. As the party with the onus to establish standing, the applicant could have introduced contradictory evidence about either his ownership of the vehicle, or authorization given to him by the registered owner to operate the vehicle, the latter of which would have gone some distance toward establishing his possession or control of the vehicle. There is no such evidence. The evidence provided by Officer Humber was that it was registered as a stolen vehicle. No contradictory evidence was advanced by the applicant. There is no evidence to establish that the applicant had any ability to regulate access to the van.
[46] Nor is there evidence to conclude that the applicant had any expectation of privacy in relation to the items seized from the vehicle. There was no evidence identifying or tying those items to the applicant as the owner, or suggesting that the applicant had control of those items. There were no markings on the objects to connect them to the applicant or to indicate that he exerted control over them. There is nothing indicating that he had a subjective expectation of privacy in relation to any of those items.
[47] Accordingly, I conclude that the applicant has failed to establish that he had an expectation of privacy in relation to the van or in relation to the items seized from it, and therefore this aspect of his application is dismissed.
Reasonableness of the Search of the USB Drive
[48] In R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 12, the Court reiterated the parameters of what constitutes a reasonable search, previously established in R. v. Collins, [1987] 1 S.C.R. 265 and R. v. Caslake, [1998] 1 S.C.R. 51: a search is reasonable within the meaning of s. 8 of the Charter if it is authorized by a reasonable law and is conducted reasonably. A search incident to arrest must be founded on a lawful arrest, be truly incidental to that arrest and be conducted reasonably: para. 27.
[49] Fearon also settled the issue of whether the police power to search incident to arrest authorizes the search of an electronic device, absent exigent circumstances. It may, provided such search complies with the common law framework: para. 83. Fearon dealt with search powers in relation to cell phones specifically, but the analysis was meant to include, in the words of Cromwell, J., “similar devices”: para. 1. As explained Tuduce, at para. 70, the search of a USB drive engages many of the same privacy considerations that apply to searches of personal computers. A similar parallel was drawn between cell phones and computers in Fearon: para. 54. For all of these electronic devices, the potential for a serious invasion of privacy exists.
[50] The Crown asserts that the search of the USB drive initially conducted on March 13 approximately seven hours after the arrest of the applicant, was a search incident to arrest and therefore was conducted reasonably.
[51] Was this search incident to the arrest of the applicant? In Fearon, Cromwell, J. reviewed the general framework of the common law power to search incident to arrest. In discussing R. v. Caslake, [1998] 1 S.C.R. 51, he repeated Lamer, J.’s articulation of the justification of the common law power of search incident to arrest as being the need for law enforcement authorities to gain control of things or information, a need which outweighs the individual's interest in privacy: para. 21. Whether the search is justified depends on whether the search is truly incidental to the arrest. Cromwell, J. stated that this means that the police must be attempting to achieve some valid purpose connected to the arrest, which depends on what they were looking for and why. The police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted, and the officer conducting the search must reasonably believe that this purpose may be served by the search: para. 21. The valid purposes for which a search may be carried out were confirmed as being those purposes previously articulated in Cloutier v. Langlois, [1990] 1 S.C.R. 158, at pp. 180-81: protecting the police; protecting the evidence, and discovering evidence.
[52] Defence counsel argues that the evidence being searched for must relate strictly to the charge on which the applicant was arrested. His position is understandable, given the language in Fearon at para. 22 that "if the purpose of the search is to find evidence, there must be some reasonable prospect of finding evidence of the offence for which the accused is being arrested". However, such a strict interpretation of the law would frustrate the powers of the police to deal fully with the factual situations presented to them upon an individual's arrest. As Crown counsel submitted, charges are often upgraded or downgraded depending on evidence discovered during a search incident to arrest. In this case, the decision to search the thumb drive was carried out for a valid purpose connected to the applicant's arrest. By virtue of the photograph and the apparently counterfeit licence, both the applicant and Pidliskovyy faced potential charges related to those items. The officer had reasonable grounds to believe, faced with those items, that these individuals were involved with the manufacture of false identification. Such a belief was buttressed by the fact that both were jointly charged with an offence suggestive of dishonesty, and the applicant in particular was flouting the law by driving contrary to a court order prohibiting him from doing so. As the officer explained, he believed that he may find evidence relating to such an impersonation offence on the USB drive. Such a belief was reasonable given the obvious need, in the manufacture of false identification, for data of the type that can be stored on a computer or memory stick. When he accessed the drive, he possibly did indeed “stumble upon” a new crime, but not one unconnected or unrelated to the applicant’s arrest.
[53] In this case, therefore, I find that the Crown has met its burden of showing that, on a balance of probabilities, the search of the USB drive on March 13 satisfied all of the requirements of being founded on a lawful arrest, being truly incidental to that arrest, and to have been conducted reasonably. The applicant was lawfully arrested, which the defence concedes. As explained above, I find that the search was carried out properly as an incident to that arrest. Further, the search of the data was conducted reasonably, involving minimal invasion of this applicant's personal privacy, and was limited to a review of the information on the drive, information which confirmed Officer Humber's reasonable suspicions.
[54] One of the legal issues to be determined is whether, as alleged by the defence, the state performed a second, discrete search of the USB drive on March 19. The Crown asserts that the officer’s steps, which were to review and then print the same information seen during the first search, constitutes the same search as that performed initially. Typically, the delay of six days post-arrest would not qualify as being incidental to arrest. In this case, however, I find that this was not a new search. The USB drive and the information contained on it had already been seized and retained in a secure location, unaltered from the time it was last accessed by Officer Humber. The officer testified that he had already viewed the same information on March 13. I am unable to find the printing of that documentation changed anything about the nature of that search, and was necessary in order for the officer to take further steps in relation to processing the credit card and banking data.
[55] In the result, the applicant has failed to demonstrate an infringement his s. 8 Charter rights. Given that determination, it is unnecessary to proceed with a determination of the additional issues raised.
[56] This court orders that the application is dismissed.
HEALEY J.