R. v. M.S.D.P., 2016 ONSC 713

Citation: R. v. M.S.D.P., 2016 ONSC 713

Court File No.: 1861/15

Date: 2016-01-28

Ontario Superior Court of Justice

Between:

Her Majesty the Queen

– and –

M.S.D.P.

Counsel:

S. LaSha, for the Crown

K. Marley, for the M.S.D.P.

Heard: January 27, 2016

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO ORDER MADE UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

Raikes, J.

[1] The defendant, M.S.D.P., stands charged with the following counts:

1. That between May 1, 2015 and July 21, 2015 inclusive, at the City of Sarnia, he committed a sexual assault on P.B. contrary to section 271 of the Criminal Code;

2. That on or between May 1, 2015 and July 21, 2015 inclusive, at the City of Sarnia, he did for a sexual purpose touch P.B., a person under the age of 16 directly with a part of his body, to wit: his penis, contrary to section 151 of the Criminal Code;

3. That on or between May 1, 2015 and July 21, 2015 inclusive, at the City of Sarnia, he did for a sexual purpose incite P.B., a person under the age of 16 years, to touch directly with a part of her body, to wit: her mouth, his body contrary to section 152 of the Criminal Code;

4. That on or between May 1, 2015 and July 21, 2015 inclusive, at the City of Sarnia, he failed without reasonable excuse to comply with a probation order made by the Ontario Court of Justice on February 28, 2011; specifically, to advise his probation officer of any involvement in any relationship with a person of the opposite sex, contrary to section 733.1 of the Criminal Code;

5. That between May 1, 2015 and July 21, 2015 inclusive, at the City of Sarnia, he had in his possession child pornography, to wit: photographs, contrary to section 163.1(4) of the Criminal Code; and,

6. That between May 1, 2015 and July 21, 2015 inclusive, at the City of Sarnia, he made child pornography, to wit: photographs, contrary to section 163.1(2) of the Criminal Code.

[2] The defendant brings an Application for an Order pursuant to section 24(2) of the Charter to exclude from evidence at trial all evidence obtained by the Sarnia Police from the seizure of the defendant’s mobile phone from his mother on July 23, 2015. The evidence comprises the mobile phone, 35 printed images of the complainant, P.B., and a CD with the same images. The defendant asserts that the seizure of his mobile phone by Detective Constable Patterson of Sarnia Police on July 23, 2015 was warrantless, unreasonable and thereby a violation of his section 8 Charter rights.

Facts

[3] On July 20, 2015, Sarnia Police received an anonymous complaint that P.B., then a 14-year-old minor, was involved in a sexual relationship with the defendant, M.S.D.P., who was then approximately 30 years old. That tip came to the attention of Detective Constable Patterson of the CID division on July 21, 2015. She was the investigating officer.

[4] Detective Constable Patterson attempted to locate P.B. but was unable to do so on July 21, 2015. On that day, she spoke with and interviewed J.S. who provided her with information regarding the relationship between the defendant and Ms. P.B.. Based on that information, she contacted Constable Shawn Urban of the uniform division and advised him that the defendant was “arrestable” in relation to counts 1-4 of the present indictment.

[5] The defendant was located at Canatara Park in Sarnia by Constable Urban and arrested. He was taken into custody and transported to the Sarnia Police Station. He remained in custody at all material times thereafter. The keys to his vehicle were later provided to his mother, B.P., and the vehicle was driven to her home at 110 Walnut Ave., in Sarnia by a family friend where it has remained since then.

[6] J.S. advised Detective Constable Patterson during her interview on July 21, 2015 that she was told by P.B. that there were photographs of Ms. P.B. performing fellatio on the defendant which were on the defendant’s cell phone. Ms. J.S. did not indicate that she had seen those photographs; rather, she was told they existed by P.B..

[7] In response to her inquiry, Constable Urban advised Detective Constable Patterson that the defendant did not have his cell phone in his possession at the time of arrest.

[8] Soon after the defendant’s arrest, Detective Constable Patterson interviewed J.S. who indicated that she was told by each of P.B. and the defendant that there was a picture of Ms. P.B. performing fellatio on the defendant on his cell phone. Detective Constable Patterson testified that she took no further steps that day to locate the cell phone as she was busy with other aspects of the investigation.

[9] Detective Constable Patterson interviewed the defendant in an interview room at the Sarnia Police Station the evening of July 21, 2015. She did not obtain any information from him that directed any action concerning the cell phone.

[10] Detective Constable Patterson testified that she was in trial on July 22. While at the courthouse on that date, she received a text from J.S. that B.P. had contacted Savanna Steenbergen that day using the defendant’s cell phone. She provided to the officer the phone number for his cell phone.

[11] Detective Constable Patterson met with the complainant, P.B., on July 22 after court. She learned from Ms. P.B. that:

1. Ms. P.B. had deleted the same or similar pictures from her cell phone which was lost by the date of the interview;

2. Ms. P.B. confirmed that there were pictures on the defendant’s cell phone of her performing fellatio, although she was not sure if they had been deleted.

[12] Ms. P.B. provided no information as to the current whereabouts of the cell phone.

[13] It is clear from the above evidence that as at the evening of July 22, 2015, Detective Constable Patterson had reasonable grounds to believe that:

1. Photographs were taken on the defendant’s cell phone of oral sex between the defendant and Ms. P.B.;

2. Those photographs would provide evidence of the charges of sexual touching etc.; and,

3. Those photographs would also ground other charges under the Criminal Code – specifically making and/or possessing child pornography.

[14] Detective Constable Patterson did not feel that she had sufficient evidence to obtain a warrant as she did not have a location where the cell phone was likely to be located. She knew it had been used on July 22 by the defendant’s mother, but took no steps to ascertain its location on that date.

[15] She testified that on July 23, 2015, there was an imminent bail hearing for which she had paperwork to prepare. She was also continuing with witness interviews which she felt were of higher priority to the investigation.

[16] At approximately 6:30 p.m. on July 23, 2015, DC Patterson and Constable Suchuk went to the home of B.P.. The purpose of their attendance was to ascertain whether Mrs. B.P. had the defendant’s cell phone. Detective Constable Patterson referred to her attendance there as a “fishing expedition”.

[17] Mrs. B.P. was known to Detective Constable Patterson. She interviewed Mrs. B.P. in 2009 when investigating previous charges against the defendant. It was her recollection and belief from that prior encounter that Mrs. B.P. had lied to and misled police to protect her son; specifically, Mrs. B.P. denied knowledge of multiple incidents between her son and previous complainants even though other evidence showed that Mrs. B.P. had directly intervened to prevent an assault(s) from continuing.

[18] DC Paterson testified that neither she nor Cst Suchuk went inside the home. She spoke with Mrs. B.P. on her front porch. She told Mrs. B.P. that her son had been arrested and for what, i.e. counts 1-4. She asked Mrs. B.P. if she had the defendant’s cell phone and was told that she did. Mrs. B.P. told her that a boy, 18 years old named Jordan, delivered the phone to her house on July 21. He told Mrs. B.P. that the defendant told him to give it to her. She already knew her son had been arrested. According to DC Patterson, Mrs. B.P. admitted that she had used the phone since it was delivered.

[19] DC Patterson testified that she then asked Mrs. B.P. to get the phone. Mrs. B.P. went inside the house and brought out the phone. DC Patterson knew at that point that the cell phone still existed and that it appeared to match the description received from witnesses as “big and black”. DC Patterson then told Mrs. B.P. that she was required to turn the phone over to her because she understood that the phone had child pornography on it. Mrs. B.P. asked her if she had to hand it over and DC Paterson reiterated that Mrs. Patterson had to do so.

[20] DC Patterson noted that Mrs. B.P. was visibly upset and shaking. They were joined on the porch by Mrs. B.P.’s sister, Bridgette who advised that Mrs. B.P. was seeing a psychiatrist and was on the verge of a panic attack. DC Patterson told them that she was going to get a warrant to look at what was on the cell phone.

[21] DC Paterson testified that Mrs. B.P. asked if she would get in trouble if she did not hand over the cell phone to which DC Patterson responded that she would not be in trouble so long as she handed it over. DC Patterson also told her that if she kept the phone, she would be in possession of child pornography which would be trouble. Mrs. B.P. then handed over the phone. DC Patterson did not believe that Mrs. B.P. was giving the phone to her consensually – she was handing over the phone at DC Patterson’s direction.

[22] DC Paterson testified that she did not examine the device or its contents at Mrs. B.P.’s residence or at any point after. She delivered it to a locker in the evidence room where it sat until the warrant application on August 6, 2015. Once the warrant to view the contents was obtained, she turned the cell phone over to Cst Brent Patterson to try to retrieve any relevant photographs including any deleted photographs which he did.

[23] DC Patterson testified that in her mind the encounter changed from a “fishing expedition” to exigent circumstances when Mrs. B.P. confirmed that she had the phone and produced it. At that point, she believed that there was a real danger that the evidence could be lost, or tampered with if she left without the cell phone to obtain a warrant. This was especially so given her past dealing with Mrs. B.P. and, by that point, Mrs. B.P. knew that the cell phone may well contain child pornography which would be harmful to her son’s interests.

[24] DC Patterson was vigorously cross-examined. In that cross-examination she testified that:

1. She never sought consent from the defendant to obtain his cell phone although he was accessible and in custody;

2. She did not consider asking Cst Suchuk to watch the home of Mrs. B.P. and detain Mrs. B.P. until she could get a warrant and return to seize the phone. She indicated that was highly impractical as it would have taken her 4 to 6 hours to process the warrant application;

3. She did not seek a warrant nor prepare any documentation ahead of the “fishing expedition” in case she ascertained the cell phone was there;

4. She did not take any other steps to verify that Mrs. B.P. had the cell phone before attending her home such as calling the phone to see who answered;

5. She did not believe she had reasonable grounds for a warrant until Mrs. B.P. came out of the house with the defendant’s phone. Specifically, she had no location to search to put in a warrant until then;

6. She did not tell Mrs. B.P. that she had the right to refuse to give over the phone, nor did she tell her that she had the right to speak to a lawyer;

7. She did no go through the usual advice necessary to ensure valid consent to the phone being voluntarily handed turned over;

8. She did not expressly threaten that Mrs. B.P. would be arrested for possession of child pornography if she failed to turn over the phone. She simply presented the facts;

9. She agreed it was implicit that Mrs. B.P. would be charged if she did not turn over possession of the cell phone. She viewed that as a caution, not a threat; and,

10. She was polite and calm to Mrs. B.P. throughout their conversation.

[25] Mrs. B.P. testified that on July 23, 2015, she was at home with her sister and roommate when DC Patterson and Cst Suchuk came to her home at roughly 6:30 PM. She indicated that she received the cell phone from someone she did not recall a couple of days earlier. She did not use the phone after it came into her possession but her daughter did to try to find out some information about the defendant.

[26] She was in the bathroom when the officers arrived. She went outside where she spoke to them. She agreed that they never entered her home. They stayed on the porch.

[27] She testified that DC Patterson “told” her that she had her son’s cell phone and to get it. She thought about whether the police needed a warrant or whether she needed to call a lawyer for advice but did not verbalize those thoughts. No one mentioned either to her.

[28] Mrs. B.P. testified that she went into the house and brought out the phone. She was told by DC Patterson that she would be an accessory to child pornography if she did not turn over the phone to the officer. Her sister noted her anxiety. She was feeling so nervous that she “almost passed out”. She indicated that she has difficulty remembering when she is stressed as she conceded she was in testifying.

[29] Mrs. B.P. indicated that she and her sister did not know what to do, so they just gave DC Patterson the phone. She felt she had no choice but to turn over the phone. She testified that before turning over the phone she told DC Patterson that she was going to go into the house to speak with her sister. DC Patterson told her she could not go in and had to remain outside with the officers.

[30] She had no idea the phone possessed any child pornography before being advised of that by police. She understood from DC Patterson that if she did not give her the phone, she would be in trouble; she would be charged with child pornography.

[31] Once she turned over the phone, she recalled that DC Patterson turned it on, opened it and looked at text messages as they came in. She could hear the phone beep as messages came in. DC Patterson suggested to her that she should stay home and not come to her son’s next court appearance.

[32] In cross-examination, Mrs. B.P. had difficulty understanding some of the questions asked and remembering what happened when. She blamed that in part on her anxiety. She indicated that when she was told that she could be charged for possession of child pornography she did not appreciate that meant that there were pornographic images on the cell phone. She testified that: “She just said she wanted the phone and if I did not give it to her, I’d be in trouble”.

Defence Position

[33] Mr. Marley advanced the following positions to support a finding of a breach of section 8:

1. Because there was no warrant for the seizure of the cell phone, the seizure was presumptively unreasonable. There was no prior judicial authorization.

2. In this case, there was no warrant, no consent by either the defendant or his mother and this was not a search incidental to arrest. That left the Crown with one argument to make: exigent circumstances which simply did not exist here.

3. DC Patterson knew as early as July 21 that there were reasonable grounds to believe the cell phone contained child pornography but she did not pursue it until July 23. The exigent circumstances rationale simply masks her failure to diligently pursue this line of investigation in a more timely way.

4. DC Patterson could have and should have sought a warrant to search Mrs. B.P.’s house for the phone before July 23 and, at a minimum, earlier on July 23 before attending her home. She had reasonable grounds for same.

5. DC Patterson admitted candidly that her attendance at Mrs. B.P.’s home was a “fishing expedition”. Constitutionally protected rights should not be impaired by police “fishing expeditions” especially when there was time and opportunity to get prior judicial authorization.

6. DC Patterson should have asked for the defendant’s consent and should have followed the accepted protocol to secure Mrs. B.P.’s consent to turn over the phone. Instead, she acted in a coercive manner with threats that Mrs. B.P. would be charged when she should know that such charges would not stand up.

7. There were other alternatives that could have and should have been used on July 23. For example, Mrs. B.P. and her sister could have been asked to remain on the porch with Cst Suchuk while DC Patterson obtained the warrant.

[34] If the defendant is successful in asserting a breach of section 8, the next stage of the analysis is a consideration the Grant factors. With respect to those factors, Mr. Marley argues:

1. Seriousness of Charter Infringing Conduct: The compelled production of the cell phone at the conclusion of a fishing expedition constitutes a serious affront to the meaning of section 8 rights. Mrs. B.P. was clearly in emotional distress. She was threatened with criminal charges to secure her cooperation. There was ample opportunity to obtain a warrant or to seek consent properly which was not done. Instead, police in this instance completely disregarded the defendant’s expectancy interest in his privacy.

2. Impact of Breach on Charter Protected Rights: The impacts of police action here have serious and fundamental implications for privacy interests. Cell phones contain vast amounts of private, personal data. The steps engaged here by police, if sanctioned, put that confidential data at serious risk.

3. Society’s Interests in Adjudication on the Merits: The evidence here is not critical or necessary to secure a trial on the merits. There is other evidence from which a conviction could follow on counts 5 and 6 above. In addition, the exclusion of this evidence affects only 2 of 6 counts and leaves the more serious charges unaffected. The administration of justice will be brought into disrepute by the inclusion of this evidence.

Crown’s Position:

[35] With respect to whether the seizure was reasonable and therefore not a breach of section 8, the Crown submits:

1. There were exigent circumstances in effect which only arose when Mrs. B.P. acknowledged that she had the phone and showed it to DC Patterson. DC Patterson did not have reasonable grounds until Mrs. B.P. showed her the cell phone. Those grounds crystallized at that moment.

2. DC Patterson had a good faith subjective belief that the evidence was at risk of being destroyed or lost if the phone was left with Mrs. B.P. while she sought a warrant. From direct experience, she believed that Mrs. B.P. would protect her son when facing criminal charges. Mrs. B.P. knew by that point that the phone had images of child pornography on it because DC Patterson had told her that.

3. DC Patterson also had objectively reasonable grounds to fear for the loss or destruction of important evidence on the cell phone. The cell phone was small, portable and easy to tamper with. Once out of sight, its integrity was at significant risk given someone related to and closely aligned with the defendant had it in her possession.

4. DC Patterson could not have obtained a warrant before this point because she lacked knowledge of the whereabouts of the phone. She knew only that Mrs. B.P. had used the phone once. That did not mean she had possession of it.

5. DC Patterson had a reasonable explanation for not seeking the phone earlier – she was in court or preparing for the bail hearing or pursuing other investigative leads. The court should not second guess her.

6. The images are real, non-conscripted evidence. The defendant’s privacy interests were protected; no one viewed the content of the cell phone until after judicial authorization. There was no challenge to the validity of that subsequent warrant.

7. The alternatives suggested by defence counsel such as freezing/detaining Mrs. B.P. for 4 to 6 hours while a warrant was sought, or asking the defendant to consent to its release were highly impractical. They are not genuine alternatives in this case.

[36] If the seizure was unreasonable, the evidence should nevertheless be admitted upon application of the Grant factors as:

1. Seriousness of Charter Infringing Conduct: There are several mitigating factors present including,

(a) The images on the phone pre-existed any police investigation and are not the product of any action by police. They are real, non-conscriptive evidence;

(b) DC Patterson was simply following an evolving investigation;

(c) She had reasonable and probable grounds for a warrant at the time of seizure but did not realistically have the time to obtain one in the circumstances. She did not have reasonable and probable grounds before then.

[37] Thus, the Crown argues that this is a less serious breach because at the time of seizure, they could have obtained a warrant. The grant of a warrant after seizure implies that a warrant to search would have been granted if requested once Mrs. B.P. showed the phone.

[38] In addition, DC Patterson was acting in good faith. She did not pursue a warrant earlier because she felt she lacked the requisite information to obtain one. She acted as she did to preserve the evidence. Even if she could have dialled the phone number to see who answered, that would not tell her where the phone was located.

[39] Finally, the cell phone would have inevitably been discovered. The only real issue is whether the images would be lost in the time it took to get a warrant.

2. Impact of Breach on Charter Protected Rights: His privacy expectancy interest was adequately protected because the images on the cell phone were not viewed until prior judicial authorization was obtained. He had a reduced expectation of privacy as his phone was not password protected and was being used by his family. No other evidence was gathered as a result of the seizure; for example, the images were not used to get admissions from him.

3. Society’s Interest in Adjudication on the Merits: The evidence is necessary to prove the elements of the offences at counts 5 and 6. It is vital evidence without which there is little prospect of conviction on those charges. The child pornography charges are not lesser or minor in nature. They are important to society. The reasonable man would say the evidence should be admitted so that these offences can be adjudicated.

Law

[40] Section 8 of the Charter provides that “everyone has the right to be secure against unreasonable search or seizure”. The primary purpose of this section is to “protect individuals from unjustified state intrusions upon their privacy”: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 at 160.

[41] Justice Dickson (as he then was) rendered the unanimous decision of the Supreme Court of Canada in Hunter. At page , he wrote:

“Like the Supreme Court of the United States, I would be wary of foreclosing the possibility that the right to be secure against unreasonable search and seizure might protect interests beyond the right of privacy, but for the purposes of the present appeal I am satisfied that its protections go at least that far. The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the rights guaranteed by section 8, whether it is expressed negatively as a freedom from “unreasonable” search and seizure, or positively as an entitlement to a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.”

[42] Once the defendant has demonstrated that the search was warrantless, the burden shifts to the Crown to show that the search was, on a balance of probabilities, reasonable. A search is reasonable if it is “authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable”: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 at paragraphs 22 and 23.

[43] Once it has been established that a search or seizure has taken place, the next step is to determine whether or not it was “reasonable”. Only an unreasonable search or seizure violates section 8. It is only if the court is satisfied that the section 8 right has been violated that the court will then go on to consider whether to exclude the evidence obtained thereby pursuant to section 24(2).

[44] The Criminal Code prescribes the steps required to obtain a judicial authorization for a warrant to search and seize evidence in the context of a criminal proceeding under the Code. Section 487(1) allows a Justice to issue a warrant where he or she is satisfied upon information that there are “reasonable grounds to believe that there is in a building, receptacle or place…(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence… against this Act or any other Act of Parliament” and (d) “to search the building, receptacle or place for any such thing and to seize it…”.

[45] In Hunter, the Supreme Court of Canada outlined three basic criteria to be considered in balancing the privacy interests of the individual and those of the state in pursuit of law enforcement:

1. Where possible, the search must have been approved by prior authorization;

2. The person authorizing the search and need not be a judge but must act in a judicial manner;

3. There must be reasonable and probable grounds, established upon oath, to believe that an offense has been committed and that evidence of this is to be found at a particular place.

[46] Where there has been a warrantless search or seizure, it is presumed to have been unreasonable and in violation of section 8: Hunter v. Southam, supra, at page 161; R. v. Collins, supra, at page 278; and R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851 at paragraph 21.

[47] Section 487.11 of the Criminal Code states:

“A peace officer…may, in the course of his or her duties, exercise any of the powers described in subsection 487(1)...without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.”

[48] The meaning of “exigent circumstances” is not defined in section 487.11. At section 529.3(2), the Code addresses exigent circumstances in the context of entering a dwelling-house without a warrant. It provides:

“For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer…

(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offense is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.”

[49] Although not specifically applicable, the above statutory definition provides a useful guidepost.

[50] If a violation of section 8 is established on a balance of probabilities, the court must consider whether to exclude the evidence obtained from the unreasonable search or seizure pursuant to section 24(2) of the Charter. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paragraph 71, of the Supreme Court of Canada set out the factors to be considered in determining whether the admission of the evidence would bring the administration of justice into disrepute. The court wrote:

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

Analysis

[51] It is undisputed that no prior judicial authorization was obtained for the seizure of the defendant’s cell phone. This is a warrantless seizure.

[52] It is also undisputed that the seizure of the cell phone was not consensual. The defendant’s consent was never sought. The officer readily and fairly conceded that she did not seek or obtain Mrs. B.P.’s consent to turn over the cell phone. Detective Constable Patterson demanded it; she insisted upon it and ultimately received it only after making clear to Mrs. B.P. that she faced “trouble” if she did not handed over. It is clear to me that the statement made by Detective Constable Patterson to Mrs. B.P. carried with it the implied threat of criminal charges. Mrs. B.P.’s reluctance to give up the cell phone was overborne by Detective Constable Patterson’s demands.

[53] The Crown relies upon exigent circumstances to find that the search was reasonable. Section 487.11 is the statutory authorization for a seizure in exigent circumstances, i.e. it makes such a seizure reasonable. The defendant does not challenge the reasonableness of that provision of the Code. What remains for consideration, therefore, is whether there were indeed exigent circumstances and whether the manner in which the seizure was carried out was reasonable.

Exigent Circumstances

[54] I agree with the Crown that prior to Detective Constable Patterson’s attendance at Mrs. B.P.’s home on July 23, 2015, she lacked sufficient information to obtain a warrant for the search of Mrs. B.P.’s home for the cell phone. At most, Detective Constable Patterson knew only that Mrs. B.P. had made a single phone call to someone known to her son a day earlier. It would be a stretch to conclude from that limited information that she had reasonable grounds to believe that Mrs. B.P. had ongoing physical possession of the phone.

[55] In my view, it was incumbent upon Detective Constable Patterson to investigate the location of the phone before applying for a warrant. The information she had as at July 23 leading up to the visit to Mrs. B.P.’s home was inadequate to provide reasonable grounds for a warrant pursuant to section 487(1).

[56] Nevertheless, I am deeply troubled by Detective Constable Patterson’s admitted ‘fishing expedition” which involved going directly to Mrs. B.P. to ask if she had the phone. I note that:

1. She made no attempt to call the cell phone number that belonged to the phone to see if it was active and who answered. If anyone answered the phone, that would at least confirm the phone still existed, i.e. had not been destroyed. If Mrs. B.P. answered the phone, and she was known to Detective Constable Patterson, it would confirm Mrs. B.P. was in possession and/or control of the phone;

2. She knew from her past experience with Mrs. B.P. that Mrs. B.P. would likely wish to protect her son even in the face of serious criminal proceedings. That is why she did not leave the phone with Mrs. B.P. on July 23 while she went to get a warrant. Thus, Detective Constable Patterson had to know when she went to Mrs. B.P.’s home that if Mrs. B.P. acknowledged that she had the phone, she would be putting that evidence at risk. In other words, DC Patterson knew if Mrs. B.P. said she had the phone, there would likely be exigent circumstances and she knew or should have known that before she ever arrived at Mrs. B.P.’s home;

3. Likewise, she told Mrs. B.P. that there was child pornography on the phone. She had no reason to believe that Mrs. B.P. already knew that and according to Mrs. B.P., she did not. Detective Constable Patterson virtually pointed Mrs. B.P. to the fact that there was incriminating evidence against her son on the phone. Detective Constable Patterson did not make a low-key inquiry about the phone – instead, she practically highlighted to Mrs. B.P. that there was damning evidence against her son on his cell phone that she had in her possession.

[57] My fundamental concern in the circumstances is that it seems to me that Detective Constable Patterson is in no small measure the author of the exigent circumstances. Had she taken the steps referred to in paragraph one above, she may well have put herself in a position to get a judicial warrant to search and seize the phone. Instead, she initiated the exigent circumstances by the manner in which she approached Ms. B.P. and what she told her. Having opted for a full frontal assault by directly confronting Mrs. B.P. as to whether she had the cell phone, Detective Constable Patterson put herself in a position where exigent circumstances were necessarily realized.

[58] I agree that once she approached Mrs. B.P. in the manner that she did, there were exigent circumstances which necessitated the seizure of the cell phone. She could not simply leave the evidence in Mrs. B.P.’s possession while she sought a warrant. At that juncture, she definitely had reasonable grounds for a warrant in that she had reasonable grounds to believe that the cell phone contained evidence of an indictable offence and she knew its whereabouts and in whose custody and control it was.

[59] I do not agree with defence counsel’s submission that Detective Constable Patterson should have sought the defendant’s consent to his phone in the circumstances. He would be aware that the phone contained deleted images of him engaging in oral intercourse with a minor – evidence that would be potentially damning on the charges for which he was arrested.

[60] I also reject the submission that there was an obligation on Detective Constable Patterson to ask Mrs. B.P. to voluntarily turn over the phone, i.e. to seek her informed consent. In an ideal world, witnesses will give such consent even where it implicates a close family member but this is not an ideal world. I agree with the Crown that that submission is impractical in the circumstances of this case, especially given Mrs. B.P.’s history with Detective Constable Patterson.

[61] I conclude, therefore, that there existed exigent circumstances but only at the instigation of police who had available another option which may have permitted police to pursue prior judicial authorization before seizure. I find that the Crown has not satisfied me on a balance of probabilities that the manner in which the seizure was effected was reasonable for the reasons I have just outlined.

[62] Accordingly, I find that there has been a section 8 breach.

Section 24(2)

[63] I turn now to whether the administration of justice would be brought into disrepute if the evidence obtained from the seizure was admitted at trial on the charges before this court. I will consider each of the three factors identified by the Supreme Court of Canada in Grant.

Seriousness of Charter Infringing Conduct

[64] It is clearly inappropriate and troubling where police engage in conduct that instigates exigent circumstances which could be avoided by reasonable investigation that leads to prior judicial authorization. In this case, Detective Constable Patterson took the direct route in circumstances that she knew or should have known would result in exigent circumstances when there was available to her other investigative steps that could have provided sufficient evidence to allow her to obtain the warrant. There was no suggestion in her evidence that she attended Mrs. B.P.’s home when she did because of urgency. It was a “fishing expedition” to use her words.

[65] However, I am not prepared to say that Detective Constable Patterson acted in bad faith in this case. That goes too far. I am also not prepared to accept defence counsel’s submission that her actions were designed to cover up a lack of diligence earlier in the investigation. Police officers work under enormous pressures where the demands of the public and those of the Courts often prove overwhelming. In this case, I am inclined to the view that Detective Constable Patterson simply jumped the gun so to speak. She was precipitous but not with the intent of trampling upon the defendant’s rights or interests.

[66] In this case, the deleted images on the cell phone existed well before any police investigation. This is real, non-conscripted evidence. It is not the product of police trickery.

[67] Taking a longer term view as required by the Supreme Court of Canada, the conduct here, while a violation of the defendant’s section 8 rights, is not so egregious that it overwhelms the other two factors to be considered and demands exclusion of the evidence. The finding that this conduct is a violation should inform future police practices and introduce a note of caution. The admission of the evidence would not, in my view, amount to condonation of police misconduct.

Impact of Breach on Charter Protected Rights

[68] The seizure of the cell phone did not, in itself, provide evidence that the defendant had engaged in any of the activities which are the subject of counts one – four, nor did it provide proof to support counts five and six. The physical phone is the repository within which the images were contained. Those images were not revealed to police until after prior judicial authorization was obtained. The defendant’s privacy interests were largely protected and respected. His privacy interest is in the content of and information contained on the phone.

[69] I agree with defence counsel that our electronic devices have assumed a greater and greater importance in our day-to-day lives. Those devices hold significant personal data for which we are all entitled to expect privacy. Our privacy interest is in the information or the data on the device. A device with no images and no personal data, for example a just purchased cell phone, has no personal information to be protected. I distinguish between the physical hardware and the data which it stores and receives.

[70] Even if such a distinction is not warranted, I am compelled to the conclusion that in this case, the impact on the defendant’s Charter protected interests is minimal for the following reasons:

1. Had the police verified that his mother had possession of his phone by means other than directly asking her, they would have sought and likely obtained a warrant to search for and seize the cell phone in any event;

2. Police did obtain prior authorization to access the data on his phone to seek the relevant photographs;

3. Only images relevant to the charges before this court have been retained by police for use in this proceeding; and,

4. The evidence on his cell phone was created well before any police investigation and is not causally connected to that investigation.

[71] The admission of the evidence in the face of the violation in this case does not send a message that privacy rights account for little. My conclusion may well have been quite different if police had not sought judicial authorization once the phone was preserved.

[72] There is a conflict in the evidence of DC Patterson and Mrs. B.P. as to whether DC Patterson opened and accessed the phone on her porch. I find the evidence of Mrs. B.P. credible but not reliable in the circumstances. She was near a full panic attack at the time. She acknowledged that stress affects her memory. Her evidence on this point did not ring true for me. I prefer the evidence of DC Patterson on this point.

Society’s Interest in Adjudication on Merits

[73] In R. v. Grant, supra, the court outlined the tension that comes to bear under this part of the analysis at paragraphs 79-84. The court notes that Society expects that a criminal allegation will be adjudicated on its merits. This reflects Society’s collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. The court must consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact on that reputation of failing to admit the evidence.

[74] Society’s interest in truth seeking is not the whole story. If it were, the evidence would always be admissible regardless of how it was obtained. One of the considerations is the reliability of the evidence obtained – do the circumstances in which it was obtained undermine its reliability?

[75] In this case, the circumstance in which the evidence was obtained does not, in my view, undermine its reliability. These are images on the defendant’s phone which predate any complaint to the police. They show oral intercourse between the defendant and complainant at a point in time. This is not evidence created by the state improperly and then used against an accused. This is evidence which the accused himself had a hand in creating and possessed.

[76] In Grant, the court notes that “the exclusion of relevant and reliable evidence may undermine the truth seeking function of the justice system and render the trial unfair from a public perspective, thus bringing the administration of justice into disrepute.” (para 81) This is such a case. The exclusion of this relevant and reliable evidence impedes the truth seeking function of the trial and would bring the administration of justice into disrepute. Taking a longer term view and looking at this from the perspective of a reasonable man, it is my view that the administration of justice would not be brought into disrepute if this evidence is admitted, and would be brought into dispute if it is excluded. This evidence is highly relevant to very serious criminal charges. Our Society has a long term interest in the protection of children from sexual exploitation.

[77] I do not accept that this evidence is relevant only to counts five and six. It may be directly relevant to counts one to four as well. That other evidence may be available to prove the offences is relevant and I have considered that in my analysis.

[78] Here, the evidence obtained appears highly relevant and reliable. The circumstances in which it was obtained are mitigated by the judicial warrant obtained before the images were retrieved. That judicial warrant was never challenged.

[79] I conclude that the integrity of the justice system will not be undermined if the evidence is admitted.

[80] Therefore, I conclude that there was a section 8 of violation but decline to exclude the evidence of the images retrieved from the defendant’s cell phone pursuant to section 24(2). That evidence is relevant and admissible on the trial of the charges before this court.

"Justice R. Raikes"

The Honourable Mr. Justice R. Raikes

Released: January 28, 2016

Citation: R. v. M.S.D.P., 2016 ONSC 713

Court File No.: 1861/15

Ontario Superior Court of Justice

Her Majesty the Queen

– and –

M.S.D.P.

Reasons for Judgment

Raikes, J.

Released: January 28, 2016