Court File and Parties

COURT FILE NO.: CRIMJ(P) 1459/16 DATE: 20170313

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Brian McGuire and Eric Taylor, for the Crown Respondent

- and -

MELISSA MERRITT and CHRISTOPHER FATTORE David Berg and Joel Hechter, for Melissa Merritt Peter Zaduk, Jennifer Myers and Daisy McCabe-Lokos, for Christopher Fattore Applicants

HEARD: February 9, 10, 13, 2017 at Brampton

RULING No. 8: Application to Exclude Electronic Intercepts from 18 Isner Diversion Rd., Italy Cross, Nova Scotia (Pyramid V)

RESTRICTION ON PUBLICATION Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

F. DAWSON J.

Introduction

[1] Melissa Merritt and Christopher Fattore are each charged with the first degree murder of Caleb Harrison on August 23, 2013. The accused are also jointly charged with the first degree murder of Caleb Harrison’s mother, Bridget Harrison, on April 21, 2010. Christopher Fattore is charged with second degree murder in relation to the death of Caleb Harrison’s father, William Harrison, on April 16, 2009.

[2] Melissa Merritt and Caleb Harrison were previously married. They had two children together. They were involved in protracted custody and access litigation relating to their two children during the time frame of all three of the alleged murders.

[3] Ms. Merritt and Mr. Fattore are common law partners. They have four children together.

[4] A more detailed description of the factual background can be found in my Ruling No. 2: R. v. Merritt, 2016 ONSC 7009.

[5] This ruling deals with an application to exclude all intercepted private communications seized as a result of an authorization issued pursuant to Part VI of the Criminal Code signed by Durno J. on November 12, 2013.

[6] The notice of application alleges that violations of s. 8 of the Charter occurred during the course of a police undercover operation and in respect of the issuance of a tracking warrant. The police used the undercover operation to learn where the applicants had moved to in Nova Scotia. The address obtained was used in the Part VI application as the main location where interceptions would take place. The police also used the undercover operation to introduce listening devices (probes) into the applicants’ residence. The tracking warrant results were used to confirm the address obtained through the undercover operation.

[7] The applicants submit that the address and location information must be edited from the affidavit sworn in support of the Part VI order leaving it fatally deficient and unable to support the Part VI order that was issued. The applicants submit that the violations of the Charter which enabled the police to introduce probes into the applicants’ residence carry forward to render the implementation of the Part VI order unreasonable and in violation of s. 8 of the Charter.

[8] The undercover operation involved the police creating a false persona, Sue Andrews. Sue Andrews purported to be associated with a “group of ladies” with charitable intentions. Sue Andrews was in fact a number of different police officers.

[9] The undercover operation began in September 2013. Sue Andrews engaged in email exchanges with Melissa Merritt between September 13, 2013 and January 14, 2014. There was also one telephone conversation between a police officer posing as Sue Andrews and Melissa Merritt. That telephone call was not recorded.

[10] The respondent does not wish to tender the email exchanges or the contents of the telephone call in evidence. However, during much of the time period in question the applicants and their children were travelling from place to place in the Maritimes looking for a rural property to rent. The police were planning to apply for an authorization to intercept the applicants’ private communications and needed an address.

[11] As a result of an email exchange between Sue Andrews and Melissa Merritt on November 6, 2013 the police learned that the applicants had rented a home at 18 Isner Diversion, Italy Cross, Nova Scotia. The police obtained the authorization to intercept private communications on that basis from Durno J. on November 12, 2013. That authorization was subsequently confirmed by Chipman J. of the Supreme Court of Nova Scotia and was operational by November 14, 2013. The Crown wishes to introduce a number of private communications intercepted at the applicants’ residence into evidence.

[12] The applicants attack the authorization issued by Durno J. on two bases. First, they submit that the police required an authorization pursuant to s. 184.2 of the Criminal Code in order to engage in the email exchange with Melissa Merritt while posing as Sue Andrews. They submit that the situation is analogous to the interception of private communications where one party consents to the interception, citing R. v. Duarte, [1990] 1 S.C.R. 30. The applicants contend that because the police had no such authorization s. 8 was violated and the address must be edited from the affidavit in support of the Part VI authorization. In the result, they submit the Part VI authorization could not have issued.

[13] As part of the undercover operation the police, pretending to be Sue Andrews, also arranged for the belongings of the applicants which had been left behind in a trailer in Ontario, to be sent to the applicants. In order to do so the police removed the belongings from the trailer and repacked them. They added gifts to the belongings. The gifts contained listening devices (probes). By this means the listening devices used pursuant to the Part VI order were introduced into the applicants’ residence when their belongings were delivered after the Part VI authorization was operational.

[14] The applicants submit that s. 8 of the Charter was violated when their belongings were repacked. They submit that the email exchanges did not permit the police to take those steps. They submit that this Charter violation extends forward in time to render the execution of the Part VI order unreasonable.

[15] The applicants also raise a third and somewhat separate matter. They attack a tracking warrant issued in relation to two cell phone numbers associated with the applicants on the basis that the information to obtain (ITO) on which it was based contains material errors and omissions. They submit that the ITO (ITO 17) as modified on the review, is incapable of supporting the tracking warrant.

[16] The attack on the tracking warrant is partly tactical. It appears designed to head off any discoverability argument the respondent may advance at the s. 24(2) stage in relation to the police determining the address of the applicants, should I edit the address out of the affidavit based on the applicants’ first argument.

[17] The notice of application does not raise any issue concerning whether other editing of the Part VI affidavit pursuant to Charter violations I have found in previous applications impact whether the Part VI order could have issued. Consequently, I have not addressed such considerations in this ruling.

[18] I will deal with each submission in turn. Before doing so it will assist if I outline the details of the undercover operation.

The Undercover Operation

[19] In early September 2013 senior investigators were contemplating seeking a Part VI authorization in the future. One mode of communication they were interested in intercepting was online communication. On September 13, 2013 it was decided to set up a fictitious email account from which to email the applicants in the hope of being able to determine their ISP address. At that time the applicants were living at 8568 Mississauga Road in Brampton.

[20] The police were aware that on March 4, 2012 Christopher Fattore had created the “Fattore Family Fire Fund” account on www.gofundme.com. In the initial post the family said they had lost everything in a fire and sought donations to help them start over. A second posting invited donations of items and invited contact with the family by email at fattorefamilyrocks@gmail.com. There were references to newspaper articles about the fire on the site and newspaper articles referred readers to the site.

[21] On September 13, 2013 a police officer sent an email to “Chris and Melissa” posing as Sue Andrews. Sue Andrews said she had seen the newspaper articles and said her “group often pitches in to help others in need”. The email also said: “We all bring forward different causes to our group and decide where we will be placing our resources.”

[22] Melissa Merritt responded. She was standoffish at first as she thought the media may somehow be involved. Once she was assured that was not the case a fairly steady stream of email back and forth began. As indicated, it extended over a number of months.

[23] Some other background is important to the issues that are raised. On September 23, 2013 the applicants took their children and left Ontario. They headed to the Maritimes. They left behind a homemade trailer which was sitting on the property they previously rented at 8568 Mississauga Road in Brampton. On October 1, 2013 the police obtained warrants and searched the residence, detached garage and the trailer located on that property. Issues related to those searches were dealt with in Ruling No. 7, R. v. Merritt, 2017 ONSC 1508. The applicants were unaware of the search. The police were unaware of the applicants’ exact whereabouts.

[24] Through various emails the police learned that the applicants were planning to rent a house in Prince Edward Island. However, that fell through. The applicants then began looking for another place to live. They were considering locations in Nova Scotia but were having trouble finding a place they could afford.

[25] Throughout the time frame of the email relationship Sue Andrews offered various forms of financial assistance to Melissa Merritt and her family. Gift cards were sent to the applicants electronically or directly to retailers so that Ms. Merritt and Mr. Fattore could purchase food, gasoline, warm clothing and toys for the children. Sue Andrews also offered to help them find a place to live in Nova Scotia and arranged to pay three months’ rent for the family, provided the funds could go directly to the landlord. Sue Andrews wanted the name and contact information for the landlord once the family found a home.

[26] Sue Andrews also arranged hotel accommodation and meals for the family as they travelled in Nova Scotia to find a place to live.

[27] Throughout the email conversations references were made to the trailer containing the applicants’ belongings. That line of discussion was started by Melissa Merritt, not by the police. It started on October 13, 2013 before Sue Andrews had provided much of the financial support described above.

[28] At 10:16 p.m. on October 13, 2013 Melissa Merritt emailed Sue Andrews about the trailer. She said they had tried to pull it behind their vehicle but it swayed too badly and they had to leave it behind. She said it contained all of their belongings, which the family needed. They hoped to have the trailer brought to them on a flatbed truck but found out it would cost $1,200. Ms. Merritt asked Sue Andrews if she knew anyone who might give them a loan.

[29] The police saw this as an opportunity. It could provide them with a means of getting probes into the applicants’ residence and could be used to get the applicants’ address which they needed for the Part VI application. Sue Andrews responded that her nephew Bryan was in the hauling business, had a “charitable disposition” and sometimes took loads to the east coast. Sue Andrews said Bryan thought he could help them but had some questions.

[30] By this time the police had thoroughly searched the trailer pursuant to a warrant and repacked it as best they could. I previously heard evidence that it was impossible to put everything back together in the trailer exactly as it was found. The police had also seized a number of items from the trailer as evidence.

[31] After the police had repacked the trailer a towing company hired by the applicants had moved the trailer to an outdoor storage area in Caledon. The police were aware of the location of the trailer. The applicants remained unaware of the search.

[32] Sue Andrews asked Melissa Merritt in an email on October 16, 2013 where the trailer was so that Bryan could check on whether it was safe to transport. Various other questions were posed, including whether it would be alright, if Bryan could not move the trailer, if the applicants’ items could be repacked into one of his trucks and brought to them.

[33] Melissa Merritt responded at 10:08 a.m. on October 16, 2013. She said the trailer was in Caledon and that she was in the Charlottetown, PEI area. She said that if Bryan could not move the trailer having their things put into a truck would be “better than not having our stuff”. She added that they had been hoping to get the trailer as well.

[34] On October 21, 2013 Melissa Merritt provided Sue Andrews with the address to the outdoor storage facility where the trailer was so that Bryan could check it out. She added that Bryan should take a power drill with him as the back of the trailer was screwed shut. Clearly, she had agreed that Bryan could enter and inspect the contents of the trailer to determine how they could best be transported to the applicants.

[35] In a series of email exchanges Sue Andrews said that Bryan had looked at the trailer. He found that the tires were splitting and that the trailer was not safe to transport. I pause to point out that there is evidence from Det. Arnold in the Agreed Statement of Facts that the trailer was in bad shape. Sue Andrews emailed Melissa Merritt saying: “Bryan is strongly suggesting that we pack your things into one of his trucks and drive it to you.” Sue Andrews then asked Melissa Merritt for her thoughts. Melissa Merritt responded agreeing to the truck transportation proposal: “OK. If he doesn’t think it will make it then I trust his decision.”

[36] The police were then faced with the need to cover up their previous search. If they delivered the applicants’ belongings in the original boxes, which had all been gone through, the search would likely become known. The police moved the contents of the trailer to a storage facility in Milton and repacked all of the items into plastic containers for transport.

[37] In order to explain why the repacking into plastic containers was necessary the police came up with a story that the trailer had not resisted the elements. Some of the boxes had become wet and rodents had gotten into the trailer. The rodent infestation was fabricated. The police photographed a dead rat and rodent droppings on a box in the trailer and emailed them to Melissa Merritt. Ms. Merritt was advised that the trailer contents had been moved to Bryan’s warehouse and repacked into plastic containers. Ms. Merritt expressed no dissent or disagreement about what she was told had been done.

[38] Some “gifts” were added to the applicants’ belongings. These included a computer, a telephone and other items containing probes. No probes were installed in the applicants’ belongings. Throughout the undercover operation the applicants had been happy to receive gifts from Sue Andrews’ group. Sue Andrews made express reference to the gifts in emails sent prior to the delivery.

[39] On November 14, 2013 Det. Bryan Young, posing as Sue Andrews’ nephew, together with another undercover officer, delivered the applicants’ belongings to them at 18 Isner Diversion in Italy Cross, Nova Scotia. Det. Young corresponded with the applicants by text on November 14 and 15, 2013 both before and after the delivery. He also spoke to Mr. Fattore on the phone. That call was intercepted as part of the Part VI authorization. Cst. Young brought a pizza for the family.

[40] Although in their written material the applicants raised issues with respect to the one phone call Mellissa Merritt had with a female police officer posing as Sue Andrews and in respect of the few communications Det. Young had with the applicants in relation to the delivery, those arguments were not advanced in oral submissions. Consequently, the focus is on the email communications.

[41] Within short order the police determined that the probes hidden in the gifts were ineffective. The quality of the interception was poor. Consequently, the police formulated a plan to have Sue Andrews provide the applicants and their children with a brief vacation. While the family was away the police entered the applicants’ residence on December 3, 2013 pursuant to the Part VI authorization and installed additional probes.

[42] The evidence indicates that the purpose of the undercover operation changed once the Part VI authorization was in place. Previously, the purpose had been to keep track of the applicants, learn their address and introduce the probes by delivering their belongings. After the Part VI authorization was granted the police used communications from Sue Andrews to assist in “stimulating” the intercepts. I am advised that is why the police officers who would be posing as Sue Andrews provided “one party consent” in connection with the authorization issued by Durno J. on November 12, 2013. No one party consents had been obtained from the officers posing as Sue Andrews prior to that time.

Did the Police Require an Authorization Pursuant to s. 184.2 of the Criminal Code in order to Legally Engage in Email Conversations with the Applicants?

[43] This question is framed in accordance with the applicants’ submissions. However, the critical issue is whether the applicants had a reasonable expectation of privacy (REP) in the email exchanges. The respondent acknowledges that if they did the police needed some form of judicial authorization to seize the emails, whether under Part VI or pursuant to another warrant or production order provision of the Criminal Code. The respondent agrees that should I find that the applicants had a REP in the email exchanges a violation of s. 8 of the Charter is established because the Crown is unable to discharge its onus of showing that the resulting warrantless search was reasonable.

[44] For the reasons that follow I conclude that the answer to the question posed above is no. Based on a consideration of the totality of the circumstances I conclude that the applicants did not have a REP in the emails. Consequently, no form of judicial authorization was required for the police to conduct the undercover operation.

[45] I agree with the applicants’ submission that the email exchange amounts to an electronic conversation. However, the applicants were fully aware that a record of the conversation was being created. Melissa Merritt chose a method of communicating that involved her creating the record of her own communications. She, not the state, created the record. There was nothing surreptitious about the making of that record.

[46] Ms. Merritt was not engaging in a conversation with a party who owed her confidentiality. She assumed the risk that the person she was communicating with would divulge their conversation. She was fully aware that once the email was delivered to the recipient she would have no control over it. She knew that what she had chosen to type and send could be forwarded or shared at the push of a button. The police did not acquire the conversation from the transmission stream but from their own email account.

[47] While I agree that it is certainly possible to have a REP in a text based electronic communication, in the totality of the circumstances here I conclude this is not such a case. Consequently, the police did not require any form of judicial authorization pursuant to Part VI or otherwise, to conduct their undercover operation via email.

The Applicants’ Submissions

[48] Although the applicants acknowledge that the critical question is whether they had a reasonable expectation of privacy in the email communications, they commenced their submissions by relying heavily on R. v. Telus Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3. They take the position that as a result of that case it has been all but decided that normative considerations now favour the conclusion that the type of reasoning that was behind the decision in R. v. Duarte, [1990] 1 S.C.R. 30 should be applied in the circumstances of this case. They contend that because the state was involved, and the applicants were deceived about who Melissa Merritt was really communicating with, the “surreptitious recording” concern referred to in Duarte, at paras. 21-22 and 28, has been met.

[49] The applicants start their argument by referring to paras. 27-31 of the judgment of Abella J. in Telus. There Abella J. stressed that due to the importance of private communications Part VI sets a higher threshold for state intrusion than other warrant provisions do. The applicants then stress that at para. 32, Abella J. said that it was acknowledged by the parties (and accepted by Abella J. as well as LeBel and Fish JJ.) that text messages qualify as “telecommunications” and that “these messages [referring to the messages in that case], like voice communications, are made under circumstances that attract a reasonable expectation of privacy and therefore constitute ‘private communication’ within the meaning of s. 183” (emphasis added). At para. 12, Abella J. said that, in her view, text messages are private communications.

[50] The court in Telus was significantly split with three judgments being delivered. The applicants also rely on what was said by Moldaver J. writing for himself and Karakatsanis J. The applicants refer to para. 57 of Moldaver J.’s reasons where he said that the Crown did not dispute that a text message “can” constitute a private communication within the meaning of Part VI.

[51] The applicants also refer to the dissent written by Cromwell J. (on behalf of himself, and McLachlin C.J.) where he said, at para. 135: “There is no doubt that the text message is a private communication.”

[52] Based on these parts of the judgments delivered in Telus the applicants focus at the outset of their argument on the definitions of “private communication” and “intercept” that are contained in s. 183 of the Criminal Code and suggest that the portions of Telus referred to are at least a very strong indication that a majority of the court would conclude that Part VI applies in the circumstances of our case.

[53] The applicants emphasize that as a society we are moving increasingly towards reliance on text based electronic communications as a means of exchanging ideas. In a democratic society normative considerations require that s. 8 protection should apply before the state, as opposed to a non-state actor, can capture and rely upon conversations which are conducted electronically and thus leave a record. Here the applicants again stress the concerns raised in Duarte by La Forest J. and draw strength for their position from his approach and reasoning process. In Duarte La Forest J. concluded that s. 8 imposed an overlay onto what was then the equivalent of the current Part VI of the Criminal Code, to the effect that judicial preauthorization is required when the police propose to record a conversation in a “one party consent” situation. That reasoning led to the enactment of what is now s. 184.2 of the Criminal Code.

[54] While the applicants acknowledge that a REP is still required before Part VI applies, and advance other case specific reasons why they say a REP exists in this case, perhaps the main thrust of their argument is that the judgment in Telus should be given considerable weight in determining whether a REP exists in the present case.

Analysis

[55] I will deal with the applicants’ submissions based on Telus first. I will deal with their arguments that are more specifically based on the facts of this case later when I undertake a “totality of the circumstances” analysis.

[56] In my respectful view the applicants’ submissions fail to take into account that it was conceded in Telus that there was a REP in the text messages involved. The facts are not given in Telus as the issue that was litigated between Telus and state authorities arose in the midst of an ongoing police investigation. Clearly, those involved in the case who did know the facts agreed that there was a REP. The court proceeded on that basis. At para. 32 Abella J. stated that the parties acknowledged “that these messages … are made under circumstances that attract a reasonable expectation of privacy and therefore constitute ‘private communications’ within the meaning of s. 183” (emphasis added). Thus the critical issue in the present case was not before the court in Telus. In those circumstances it is difficult to attribute the weight the applicants suggest I should to the comments in the various judgments in Telus which the applicants refer me to.

[57] In many respects the applicants’ submissions are similar to those that were made and rejected by a majority of the court in R. v. Marakah, 2016 ONCA 542, 131 O.R. (3d) 561, at paras. 18, 35, 39-41. At para. 41 of Marakah MacPherson J.A. pointed out that Telus was not a standing case and that none of the relevant considerations of the “totality of the circumstances test” used to determine whether a REP exists were considered in Telus.

[58] Marakah is clear and binding authority that whether there is a REP in text based communications must be determined affirmatively before any consideration of whether there was an unreasonable search in contravention of s. 8 can arise. As reviewed in Marakah, at para. 29, standing is not automatic. It must be established based on an application of the totality of the circumstances test. That test was developed in R. v. Edwards, [1996] 1 S.C.R. 128 and has been consistently applied with suitable modifications to fit the circumstances of specific cases in subsequent judgments of the Supreme Court of Canada. See for example: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 31-32; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at paras. 139-140; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at paras. 26-27; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 39-41; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at paras. 16-18. In Marakah, at para. 56, MacPherson J.A. said: “[T]he ‘totality of the circumstances’ approach set out in Edwards and restated in several Supreme Court of Canada cases fully engages normative considerations and remains the proper framework within which to address informational privacy issues…”

[59] I reviewed the principles established in these cases in Ruling No. 4, R. v. Merritt, 2017 ONSC 80, at paras. 130-140. I will not repeat them here but I take them into account. I propose to consider the various relevant factors by addressing the four groups of factors identified at para. 18 of Spencer. Those groups of factors are:

[1] the subject matter of the alleged search; [2] the claimant’s interest in the subject matter; [3] the claimant’s subjective expectation in the subject matter; and [4] whether any subjective expectation of privacy in the subject matter was objectively reasonable having regard to the totality of the circumstances.

In applying this approach I may refer to specific categories or factors applied in the cases I have referred to.

[60] I turn first to the subject matter of the alleged search. The respondent submits that in the circumstances of this case that should be defined quite narrowly. The respondent submits that the subject matter was the address where the applicants eventually settled in Nova Scotia. The respondent takes this position on the basis that the address was the only thing the police relied upon in the Part VI application that resulted from the undercover operation. The respondent combines this with a submission that the applicants’ address does not reveal any core biographical information about the applicants. The respondent makes reference to the recent judgment in R. v. Saciragic, 2017 ONCA 91, where, at para. 32, Miller J.A. held that a municipal address is publicly available information which does not alone reveal “intimate details of one’s choices and way of life”.

[61] I do not accept the respondent’s submission that the subject matter of the search should be defined so narrowly. While one of the police objectives was to obtain an address for the Part VI, in order to get to that point a great deal of other information was communicated back and forth. That communication included the police making efforts to gain Melissa Merritt’s confidence in order to use delivery of the contents of the trailer to the applicants to get probes into the applicants’ home.

[62] In Spencer, at para. 26, Cromwell J. commented that when the subject matter of the search is difficult to identify or controversial a broad and functional approach should be taken which examines any connection between the police investigative technique and the privacy interest at stake. The court looks not only at the nature of the information but at what it reveals. Cromwell J. developed this approach further at paras. 28-31 of his judgment. At para. 31 of his judgment lower courts are instructed to consider the nature of the privacy interests potentially compromised by the state action.

[63] In the present case the number of emails and their nature reflect that the subject matter must be looked at more broadly than the respondent suggests. On the other hand, while some information is revealed about the poor economic circumstances of the Merritt and Fattore family and Ms. Merritt’s misgivings about her ability to provide what the children need, no truly intimate and not much core biographical information was revealed. The emails sent by the police, while designed to develop rapport and be convincing, did not probe for intimate details or information about private choices.

[64] Applying the approach suggested by Cromwell J. in Spencer I would characterize the subject matter of the search as all of the emails sent and received between the applicants and the Sue Andrews persona. The context was not one of probing for truly intimate details but it did extend into the personal realm of the applicants’ economic circumstances and the type of family activities that would be able to be seen by a local observer. Ms. Merritt also revealed some details of her emotional state.

[65] That said, caution must be applied when considering the nature of the emails. Having read them carefully and reflected on them through the lens of judicial experience, I formed the impression that Ms. Merritt was doing some manipulating of her own in order to obtain more financial benefits for herself and her family. There is a certain symbiosis to the email relationship. I observe that neither of the applicants testified and I must reach my conclusions on the basis of the record before me.

[66] Still, I characterize the subject matter of the search in a considerably broader fashion than the respondent suggests.

[67] The respondent agrees that the applicants, and Melissa Merritt in particular, had an interest in the email which Ms. Merritt sent. Those emails contained information about herself and her family.

[68] I turn to whether the applicants had a subjective expectation of privacy in the contents of the emails. I commence by mentioning again that neither of the applicants testified. The authorities establish that a subjective expectation of privacy may be inferred, and often easily so, from the surrounding circumstances. In some previous rulings in this case I have inferred a subjective expectation of privacy. However, I am unable to do so here.

[69] The entire relationship between Sue Andrews and Melissa Merritt was premised on the notion that Sue Andrews represented a group and that any financial assistance had to be approved by the group. From the earliest emails Sue Andrews spoke of group members bringing information forward so the group could decide whether to support a particular charitable proposal. In almost every instance throughout the emails when financial assistance was offered by Sue Andrews or sought by Melissa Merritt, Sue Andrews spoke in terms of “we”, “our group” or “the ladies”. While Sue Andrews and Melissa Merritt did communicate on occasion about how Ms. Merritt was feeling or the difficulty her family faced, it was always in the context of Sue Andrews taking information forward to the group for a decision.

[70] Consequently, throughout the email relationship the applicants were aware that Sue Andrews was sharing with others the information they were providing. How that sharing was being done and with whom was not discussed or questioned by the applicants. While I accept to a degree the applicants’ submission that a “track record” developed between Sue Andrews and Melissa Merritt, it was always in the context that I have described. While from time to time Sue Andrews expressed that she knew Ms. Merritt was concerned about the privacy of her family and said she would be discreet, it was always in the context of the sharing of the information provided with members of a broader unidentified group.

[71] Privacy was mentioned briefly from time to time in the email exchanges. The discussions about privacy which did take place developed out of Ms. Merritt’s initial concern that the applicants did not want to have any contact with the media. In this regard she said she was concerned about her children’s privacy. I infer from a consideration of the emails as a whole that the applicants, and Melissa Merritt in particular, did not want the children exposed to media attention or accounts about the murder of their father or to other information about what had happened. While Sue Andrews said she would be discreet, with the exception of providing assurance that there would be no contact with the media, no express promise of confidentiality was ever made. I agree with the respondent’s submission that there was not much talk about privacy in the email.

[72] Melissa Merritt did not know Sue Andrews or who she was beyond what she was told, always in that same context. She never met Sue Andrews and talked to Sue Andrews only once on the phone. That call was not recorded. It was Ms. Merritt who wanted to talk on the telephone. Melissa Merritt did become emotional during the phone call. Sue Andrews told Ms. Merritt that she preferred email so she could keep matters on a professional level. This did not become more than a relationship between a charitably minded Sue Andrews on behalf of her group and the applicants, who would have understood that they were one of many families the group was helping.

[73] Even though some relationship developed between Melissa Merritt and Sue Andrews it was not the type of relationship in which it is generally understood that rules of confidentiality apply. This was not like a communication with someone in the medical field, with a financial adviser, banker or legal representative.

[74] In addition, Ms. Merritt had no idea how many people were in Sue Andrews’ charitable group, let alone who they were or how they would be provided with the information she sent.

[75] This was also clearly a situation where Melissa Merritt wanted all the financial help she could get from Sue Andrews and the email exchanges show that she willingly communicated knowing her situation would be shared with others. When she provided her address she said that she had no hesitation in giving it. In order to have a chance of having her belongings sent to her she gave Sue Andrews’ nephew, who was unknown to her, permission to look at and into the trailer. She suggested the nephew take an electric drill with him because the back of the trailer was screwed shut. She was content that he repack the applicants’ belongings.

[76] Certainly all the information the police took advantage of to transport the probes to the applicants’ home along with their belongings and the address used in the Part VI was, on the face of the record, provided by Ms. Merritt with the understanding that it would be shared with others.

[77] The applicants also knew that once the emails were sent they lost all control over them. They had no reason to think that those emails would not be shared with all the other members of Sue Andrews’ group, however many and whoever they may be from time to time.

[78] In these circumstances I am unable to infer that the applicants had a subjective expectation of privacy in the subject matter of the search.

[79] Assuming, contrary to my actual finding, that the applicants had some subjective expectation of privacy in the subject matter of the alleged search, I conclude that in the circumstances any such expectation was not objectively reasonable. Many of the things I have already mentioned in terms of subjective expectation apply here. I will not repeat all of them.

[80] While Sue Andrews occasionally made some reference to the applicants’ privacy the whole idea was that information would be shared with her group. The applicants knew that they were not dealing with a person or group who owed them any duty of confidentiality. With the exception of the agreement that there would be no contact with the media, the applicants were not provided with any express promises of confidentiality. Sue Andrews and the applicants were not related. They were not in a relationship that a reasonable person would understand as being subject to confidentiality rules.

[81] While the situation may not be directly comparable to communicating to sell firearms (Marakah, R. v. Jones, 2016 ONCA 543), texting to arrange a drug transaction (R. v. Beairsto, 2016 ABQB 216), or using electronic messaging to lure a young person over the internet (R. v. Ghotra, [2015] O.J. No. 7253 (S.C.J.)) it is also vastly different than emailing a close family member, a spouse, or a banker, lawyer, accountant or doctor’s office. In my view the type of analysis undertaken in the three cases I have just referenced is appropriate with necessary modifications to fit the facts of this case. See also R. v. Graff, 2015 ABQB 415; R. v. N.J.S., 2014 BCSC 2658; R. v. Mills, 2017 NLCA 12.

[82] The applicants were communicating with someone who was essentially a stranger, despite the fact that there was some track record: Ghotra, at para. 116. When I say a stranger I do not ignore the context of the charitable nature of the relationship which had been validated by the sending of some financial benefits. However, the situation remained one where, in the context of the representations made by Sue Andrews, a reasonable person could not expect that the information Ms. Merritt provided, including the address and other information the police utilized, was going to be kept private. This was not the type of information that is generally considered confidential or intimate and the nature of the relationship was not of the type where secrecy or confidentiality of that information would reasonably be expected as a matter of course. The representations made by Sue Andrews included sharing the information with others.

[83] In Patrick, at paragraph 27, Binnie J. provided a list of factors which the court considered in that case when determining whether the appellant had a REP. Running down the list of factors I would note the following in relation to the present case.

[84] The place where the alleged search occurred was the email account which was set up by the police. Therefore, there was no trespass on the applicants’ property. The applicants were far away when the police engaged in the electronic conversation and collected the emails.

[85] While the information in the emails was not on public view it was not hidden from the recipient. Clearly, it would be on view to the recipient of the email and to anyone the recipient shared it with. In this case it was contemplated that the information included in the emails would be shared with other members of Sue Andrews’ group.

[86] While the informational content of the emails had probably not been abandoned, there are similarities between pushing the send button and abandonment.

[87] The police technique in use in this case was not particularly intrusive. The police initiated contact by email to an account the applicants had set up inviting contact from members of the public. The applicants were free to respond or not to respond to any email. After the initial email exchange Sue Andrews said she would not contact the applicants again. It was Ms. Merritt who then chose to continue the communication. Sue Andrews asked questions to aid in obtaining the information the police needed to meet their objectives. However, that information was not intimate or very private in nature. The police did not probe for intimate details or core biographical information.

[88] The technique used by the police was to engage in an undercover operation. While that involved deception, the community recognizes and accepts that such police methods of investigation are necessary. There was no coercion or intimidation. The applicants were far away from the police at the time of the communications. Nothing about the police conduct in this undercover investigation would shock the community. The police were conducting a murder investigation. Taking all the circumstances into account, the use of this technique was objectively reasonable.

[89] I have already said that the informational content did not expose any intimate details of the applicants’ lifestyle. It did reveal some information about their poverty and certain choices the family made. Melissa Merritt did reveal something about her concerns and about her emotional state. However, none of this was highly private in nature and it was not being sought by the police.

[90] Overall, an assessment of these factors militates against finding that any subjective expectation of privacy was objectively reasonable.

[91] Finally, there are the important matters of access and control. Here the analysis in Marakah at paras. 57 and 78 is of assistance. MacPherson J.A. held that access and control are particularly important in determining whether a REP exists in information (para. 57). As he noted, once an electronic message is sent and received the sender usually loses access and control. That was certainly the case here. As MacPherson J.A. said, at para. 78: “In most cases … a sender controls the content and recipient of a message. However, once the message is received, the recipient becomes the controller and the sender’s privacy interest will generally disappear.” See also Ghotra, at para. 116, 127-130; Graff, at paras. 58-65; N.J.S., at paras. 55-61; Mills, at para. 23.

[92] As was the case in Marakah, the applicants rely on Duarte. They submit it must inform the REP analysis. While they have not suggested where it best fits into the totality of the circumstances analysis it seems to me that it is best considered in relation to whether an expectation of privacy is objectively reasonable.

[93] Duarte is really an example of normative considerations in action. In Duarte that action was implemented through s. 8 of the Charter. In my respectful view Duarte is of limited assistance in determining whether there is a REP in the present case because, as explained in Marakah at para. 82, the circumstances in Duarte are simply not comparable to the circumstances in Marakah. Nor are they comparable to the circumstances in the case at bar.

[94] In Duarte a police informer was working with an undercover police officer. The accused met with them in an apartment the police had rented and outfitted with recording apparatus. At that time the Criminal Code made legal the recording of a private communication if any participant to the communication consented. As structured, the provisions of what was then Part IV.I of the Criminal Code assumed the admissibility of intercepted private communications when the interception was lawfully made, either pursuant to an authorization or pursuant to a one party consent. At that time the Criminal Code did not provide for obtaining an authorization when one or more parties to a private communication consented to its interception.

[95] In Duarte La Forest J. distinguished between the risks we all assume that the people we are speaking with will betray our confidences and the risk that the state will surreptitiously record our words for later use. While the former risk was considered to be an accepted part of everyday life, the latter situation was described as a risk of a different magnitude. Without using the word “normative”, La Forest J. essentially held that the state’s surreptitious recording of a private conversation was incompatible with normative values in a free and democratic society in the absence of prior judicial authorization. He concluded that s. 8 of the Charter required that the state obtain judicial pre-authorization before surreptitiously making a permanent recording even in circumstances where a party to the conversation consented to its interception. As a result, Parliament enacted s. 184.2 to provide a means of obtaining judicial pre-authorization in such circumstances.

[96] In the case at bar, as in Marakah, the record of the conversation was made out in the open. There was nothing surreptitious about it. The applicants knew that a permanent record of their email communications would be available to both themselves and to the other party. They also knew that they would have no access to or control over the record of that email exchange once it was in the hands of the other party. As MacPherson J.A. said in Marakah, at para. 82:

The key point in Duarte was that the state surreptitiously created a permanent record of oral conversations, where otherwise none would exist. In this case, the appellant himself chose to communicate by text message, using a medium that necessarily creates a permanent record over which he had no control. The risk analysis rejected in Duarte does not preclude a court from considering this choice in assessing one’s reasonable expectation of privacy in text messages on another’s phone. The risk in this case is of a different order than that in Duarte.

This comment applies in the circumstances of the present case. See also: Jones (2016), at para. 23; Beairsto, at paras. 46, 60-61; Ghotra, at paras. 106-108, 112, 125; Graff, at para. 64; N.J.S., at para. 67; Mills, at para. 23.

[97] Duarte draws close the relationship between the existence of surreptitious interception and recording by the state in the absence of judicial authorization and whether there is a violation of a REP and thus a violation of s. 8 of the Charter. At para. 50 of Duarte La Forest J. wrote:

To conclude, the Charter is not meant to protect us against a poor choice of friends. If our "friend" turns out to be an informer, and we are convicted on the strength of his testimony, that may be unfortunate for us. But the Charter is meant to guarantee the right to be secure against unreasonable search and seizure. A conversation with an informer does not amount to a search and seizure within the meaning of the Charter. Surreptitious electronic interception and recording of a private communication does.

Therefore, without surreptitious electronic interception and recording it does not appear that the Supreme Court of Canada considered that there was a violation of a REP when one of the parties to an otherwise private conversation decided to reveal it. In my view, the email exchanges between the applicants and Sue Andrews in this case fall within the first part of the above quote.

[98] In Telus, Abella J. treated text based electronic conversations like regular conversations. Based on Duarte, Marakah and Jones (2016), I conclude that, to the extent they are like regular conversations, in a case where one party consents they are not protected by s. 8 of the Charter in the absence of surreptitious interception and recording by the state, or unless some other form of warrant or production order would be required to gather them after the transmission process is complete, due to the existence of a REP interposed between the record of the conversation and the state.

[99] In Telus the focus was on interception and not whether there was a REP. The facts of the case involved the unusual feature that Telus, unlike other service providers, made a record of text messages captured during the transmission process prior to the recipient receiving the message. It appears this circumstance contributed to the divisions amongst the members of the court.

[100] Abella J. held, at para. 37, that the use of the word “intercept” implied that the private communication was acquired in the course of the transmission process. Abella J. found that Part VI and not the general warrant provision in s. 487.1 of the Criminal Code applied, because the police were seeking access to prospective text communications which would be recorded by the service provider in the course of the transmission process. There was, therefore, both interception and surreptitious recording of the communication in circumstances where the state was taking advantage of that to capture prospective text based communications. I am unable to see the Telus case as inconsistent with my conclusion set out above.

[101] In the case at bar the applicants submit that the surreptitious component referred to in Duarte is met by the fact that the applicants thought they were communicating with Sue Andrews and not the police. In my view this does not satisfy the surreptitious component emphasized in Duarte. In Duarte what was found to contravene s. 8 was the state’s surreptitious interception and recording of the conversation. The surreptitious aspect here did not relate to the making of the recording but only to the true identity of the recipient of the applicants’ communications. That is quite a different matter.

[102] This was like any other undercover operation. The applicants were fooled about who they were communicating with but were well aware that a record of the conversation was being made. They assumed the risk that the person they were communicating with would disclose the record of that conversation. The risk was not the risk of greater magnitude that led to a violation of s. 8 of the Charter in Duarte and to the enactment of s. 184.2 of the Criminal Code. As stated by Welsh J.A. in Mills, at para. 14:” [T]he fact, unknown to the sender, that the recipient is a police officer cannot change the nature of the communication or transform a receipt by the intended recipient into an interception.” Mills was also a case about email communication.

[103] This brings me back to the beginning. In this case Melissa Merritt engaged in a conversation with an undercover officer. While it was in electronic form she chose to communicate that way knowing there would be a record of her conversation. She created the record of what she said, not the authorities.

[104] Balancing all of the considerations I have referred to and taking the totality of the circumstances into account, I find the applicants had no REP in the emails. In the absence of a REP on the part of the applicants the police did not require any form of judicial pre-authorization, Part VI or otherwise, to gather or make use of the information exchanged between Sue Andrews and the applicants during their undercover operation.

Was Section 8 of the Charter Violated When The Police Entered the Trailer Without a Warrant, Repacked the Contents and Transported them to the Applicants?

[105] I have come to the conclusion that the answer to this question is no. The actions of the police did not constitute either a search or a seizure because the applicants had no REP once they agreed that Sue Andrews’ nephew could enter the trailer and repack their belongings into a truck. As long as the police stayed within the boundaries of that invitation, express or implied, there was no violation of s. 8 of the Charter. When all the surrounding circumstances are considered I conclude the police conduct remained within the confines of the invitation the applicants explicitly and implicitly extended to them during the undercover operation.

[106] The police had no intent to search. They had previously thoroughly searched the trailer and its contents pursuant to a warrant. When the police entered the trailer and moved and repacked its contents they did so for the purpose of delivering the contents to the applicants as requested and to cover up their prior warranted search in order to protect the ongoing investigation from being compromised. They added gifts which the applicants were happy to accept, not knowing they contained probes.

[107] My conclusions are based on a series of cases which hold that when, during an undercover operation, a police officer enters a home or other premises where drugs are being sold or where they enter at the invitation of the occupant so they can engage in some aspect of a drug transaction, no violation of s. 8 of the Charter is occasioned. That is because the occupant has abandoned, modified or waived their REP to the extent provided in the invitation. So long as the undercover officer acts within the scope of an express or implied invitation s. 8 is not engaged. See R. v. Contant, 2008 QCCA 2514, 253 C.C.C. (3d) 259; R. v. Joseph, 2008 QCCA 2515; R. v. Gallaugher, [1999] O.J. No. 174 (C.A.); R. v. Roy, 2010 BCCA 448, 261 C.C.C. (3d) 62; R. v. Felger, 2014 BCCA 34, 306 C.C.C. (3d) 143.

[108] A similar approach was taken when an undercover police officer investigating prostitution related offences was invited into a vehicle and once inside saw drugs in plain view: R. v. Thistle, 2004 ONCJ 84, at paras. 14-15, 20.

[109] Similar principles were also applied in a case where an undercover officer had convinced a terrorism suspect that he would destroy computer hard drives and other evidence if the accused gave the items to him to do so. The court held that tricking the accused into turning over the items on the understanding that the undercover officer was a co-conspirator who would protect the privacy of the items until they were destroyed did not alter the fact that the accused had acted in a manner that was inconsistent with asserting an objectively reasonable expectation of privacy in the items turned over to the undercover officer: R. v. Nuttall, 2014 BCSC 2355, at paras. 42, 44-45, 49-51.

[110] In Roy, at para. 21, Lowry J.A. made the point that there is a difference between an individual waiving or abandoning their expectation of privacy and waiving or abandoning their constitutional right to be free from unreasonable search and seizure. The former alters the individual’s expectation of privacy, and where a REP ceases to exist, s. 8 of the Charter cannot be violated. The latter involves rendering an otherwise unreasonable search reasonable.

[111] In Roy the court held that when an undercover officer posing as a drug dealer was invited into the accused’s home for the purpose of looking at the purchase money, the question was whether the accused had waived or abandoned his REP and not whether he had provided informed consent to a search (para. 23).

[112] At para. 30 Lowry J.A. referred to R. v. Evans, [1996] 1 S.C.R. 8, [1996] S.C.J. No. 1, at paras. 12-13. There Sopinka J. was dealing with the implied invitation to approach the door to a home to speak to the occupants. At para. 13 of Evans, Sopinka J. wrote:

Where the police act in accordance with this implied invitation, they cannot be said to intrude upon the privacy of the occupant. The implied invitation, unless rebutted by a clear expression of intent, effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling.

[113] The cases I have referred to indicate that the same principle applies to an express invitation. As held in Roy at para. 31: “So long as the police act in accordance with the express invitation, they cannot be said to intrude upon the privacy interests of the occupant.”

[114] In Evans, Sopinka J. went on to find that there was a s. 8 violation in that case because when the police approached the door they intended to engage in a search by smelling or seeing marijuana. Consequently, their intention exceeded the implied invitation. Therefore there was a violation of the occupants’ REP.

[115] In the case I am dealing with I am satisfied that the intention of the police was not to search. They had previously spent approximately seven hours examining the contents of the trailer on October 2, 2013 pursuant to a search warrant. Their purpose was to take advantage of the applicants’ agreement to have their belongings brought to them by Sue Andrews’ nephew and to deliver probes to assist in the execution of the Part VI order. I point out that the delivery was not made until the Part VI authorization had been issued, although the removal of the contents of the trailer and the repacking took place prior to its issuance.

[116] I also find that there was a degree of necessity for the repacking as otherwise the previous search would be detected. As the police intent was not to search, as long as they acted in accordance with any express or implied invitation extended by the applicants no privacy interest of the applicants was violated.

[117] As I understand the applicants’ position, they advance two arguments to overcome the principles I have referred to. First, they submit that there was no effective invitation because the applicants were tricked. Second, they submit that the police exceeded the scope of any express or implied invitation that was given. While I have separated these into two issues they were presented in an intermingled fashion during oral submissions.

[118] With respect to police trickery, in their factum the applicants referred to the standard of informed consent for the waiver of a constitutional right as described in R. v. Wills (1992), 7 O.R. (3d) 337, 70 C.C.C. (3d) 529 (C.A.). That approach was not advanced in oral argument. The cases I have referred to distinguish between a situation involving an express or implied invitation modifying a REP and a situation involving a waiver of a constitutional right. Wills dealt with the latter but our case involves the former. All of the cases I have referred to were undercover operations which involved police lies, deception and trickery. That was not found in itself to be problematic. The focus in each case was on whether the police activity remained within the bounds of the express or implied invitation which modified or abandoned the accused’s REP.

[119] In Roy, at para. 32, Lowry J.A. rejected the argument that the fact the police had the ulterior purpose of gathering evidence impacted whether they had exceeded the accused’s invitation. He concluded that paragraph by stating: “Police do not require authorization to use information they properly obtain through undercover operations.”

[120] In Felger, Garson J.A. cited Roy and, at para. 40, held that where an invitation is unknowingly extended to an undercover officer to go to a place that is normally private, that invitation “waives any expectation of privacy”.

[121] In Nuttall, at para. 51, Bruce J. said: “Our system of justice sanctions undercover investigations, which necessarily involve a web of falsehoods communicated to the targets, provided the conduct of the police does not violate any of the accused’s Charter rights.” He went on to point out that while the undercover officer lied to the accused about his intentions and otherwise, the undercover officer did not violate any Charter-protected right, or statutory or common law provision in doing so. Consequently, the deception was not a factor which impeded the authorities from relying on the invitation extended on the basis of a deception, leaving the state in a position to obtain evidence pursuant to the invitation.

[122] I turn to the second aspect of the applicants’ submission. Mr. Hechter submits that when Melissa Merritt first raised the subject of the trailer she did so in the context of making a request for a loan so the applicants could pay someone to transport the trailer to them on a flatbed truck. Sue Andrews then made an offer to have her nephew look at the trailer. That evolved into a story that it was unsafe to move the trailer and that the nephew was recommending repacking the items and putting them into a truck. Mr. Hechter submitted that the applicants needed their things and that “beggars can’t be choosers”. He submitted that the applicants only agreed to what was suggested because what they wanted was not on offer and they needed their belongings. They were told it would be “risky” to try to move the trailer. The applicants submit that the only way they could get their belongings was to accept the offer.

[123] I am unable to accept this submission. The applicants were free to say no to the suggestions made by Sue Andrews. They were not under any compulsion from the police. The police were entitled to use deception. In my view the type of deception used here was well within reasonable bounds. It was not the kind of deception that would shock the community: R. v. Rothman, [1981] 1 S.C.R. 640, at p. 697; R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38, at paras. 66-67.

[124] The police did not open the trailer until after Ms. Merritt gave Sue Andrews’ nephew permission to do so. The applicants were told the tires were splitting and low on air and that it would be unsafe to transport the trailer. I have no evidence that these comments were untrue. I have evidence that the applicants had determined that they could not safely pull the trailer and that when the applicants arranged to have the trailer moved from 8568 Mississauga Road in Brampton to Caledon that was done by means of a towing company using a flatbed truck. In any event, the level of deception employed by the police was relatively modest and it was not coercive in any way.

[125] Mr. Hechter submits that the applicants did not consent to the police putting a dead rat and rodent feces onto their belongings. That is true. I observe that the photographs show that a dead rat and some pellets that could be animal droppings were placed on top of a cardboard box and photographed. This was part of the deception used by the police. I have no evidence this harmed or adversely affected anything in the box or the trailer. The cardboard boxes were discarded when the police repacked the contents of the trailer into plastic containers. I am not persuaded that this part of the deception violated any subsisting privacy interest or took the police actions outside the scope of the consent that Melissa Merritt had given to Sue Andrews to have her nephew open and inspect the trailer. It did not constitute any interference with or inspection of the applicants’ belongings or cause any damage to them. It was not a search but part of a deception to further the investigation. It did not violate a Charter-protected interest or statutory or common law provision.

[126] I note that the photographs also show some water damage to some of the cardboard boxes. I have no evidence the police were responsible for that. The trailer was a homemade wooden trailer. The top was covered only with a tarp. It was sitting outside.

[127] Det. Arnold testified at the preliminary inquiry that the trailer was in bad shape. A transcript of that testimony forms part of the Agreed Statement of Facts. In that transcript Det. Arnold testified that after the search warrant was executed the contents of the trailer were repacked. She testified the police did not go back into the trailer until October 6, 2013. However, when the Agreed Statement of Facts was filed it was specified that Det. Arnold made a mistake about the date when testifying at the preliminary inquiry, and that her references to October 6 should be read as October 21, 2013. By then Melissa Merritt had given permission for Sue Andrews’ nephew to enter the trailer. It was on October 21, 2013 at 2:59 p.m. that Melissa Merritt agreed to the contents being removed from the trailer. She said: “It will be some work to transfer the boxes and he will need a drill to open the back as it is screwed shut!” Consequently, there was no entry or removal of the trailer’s contents until the applicants had agreed to that.

[128] Counsel for the applicants also raise the repacking of the trailer’s contents into plastic containers. They say that was not expressly authorized by the applicants before it was done, although it was approved of after the fact.

[129] The Agreed Statement of Facts indicates, at paras. 25-26, that Det. Bryan Young and Cst. Timar attended the location where the trailer was being stored in Caledon on October 21, 2013. They inspected the trailer. There is no indication they entered the trailer at that time.

[130] On October 30, 2013 Det. Young and three other officers opened the trailer and staged the rat infestation. After taking photos they moved the boxes to a storage facility in Milton. Over the course of October 30, 31 and November 4 the police repacked the contents of the cardboard boxes into plastic containers.

[131] While Melissa Merritt had previously given Sue Andrews permission to have her nephew enter the trailer and move the contents to a warehouse to be loaded into a truck, there was no discussion of plastic containers until October 30, 2013. On that date at 1:30 p.m. Sue Andrews emailed Melissa Merritt that her nephew had moved the contents of the trailer to his warehouse and found that there was some damage to the boxes from rodents and rain. It was at that point that the photos were sent to Ms. Merritt. Sue Andrews said that the problem had already been dealt with by moving everything into “Rubbermaid containers”.

[132] At 1:52 p.m. Melissa Merritt responded thanking Sue Andrews for letting her know. There was no dissent.

[133] I would point out that it is not clear whether the police had started to repack the items prior to Ms. Merritt’s email at 1:52 p.m. However, the repacking was presented to Melissa Merritt as something that had already been done. The applicants submit this took the actions of the police outside the scope of any invitation or agreement extended by Melissa Merritt.

[134] I am unable to accept this submission. It must be remembered that the focus is on whether the applicants had a REP in the contents of the trailer. Ms. Merritt had previously given Sue Andrews permission to have the contents of the trailer removed and transferred to a truck. It was implicit in that agreement that Sue Andrews’ nephew and his employees had been invited to take reasonable steps to accomplish that. As Evans and the other cases I have referred to establish, if the police also had an intention to search, their conduct would fall outside the scope of the consent, express or implied. I have already found that was not their intent. The police needed to cover up their previous judicially authorized search of the trailer and they were going to add gifts containing probes to the belongings that would only be utilized if and when they obtained a Part VI authorization. They could not get that authorization because the applicants were in the process of moving to an undetermined location.

[135] I also note that Sue Andrews mentioned in the email exchanges that her group would be sending along some gifts to further help the family out. Melissa Merritt was agreeable to that. The respondent points out that the police were under some positive obligation to try to minimize intrusion on the applicants’ privacy in terms of implementing the Part VI authorization which they were applying to obtain: R. v. Chesson, [1988] 2 S.C.R. 148, [1988] S.C.J. No. 70, per Wilson J. at paras. 27-31; R. v. Lyons, [1984] 2 S.C.R. 633.

[136] I conclude that as the police were not involved in the unauthorized gathering of evidence at the time of the repacking, the repacking fell within the scope of an implied invitation extended by the applicants to take reasonable steps to ship their belongings to them. Ms. Merritt’s reaction to the news about the water damage and rodent infestation and the fact that she voiced no objection to the repacking, is evidence which supports the conclusion that what occurred was reasonably within the scope of what she originally invited Sue Andrews and her nephew to do. The invitation to take reasonable steps, such as repacking, was implicit in the agreement to have their belongings removed from the trailer and put into a truck for delivery in Nova Scotia.

[137] In these circumstances it cannot be said that the applicants had either a subjective or objectively reasonable expectation of privacy that was violated when the police repacked the items into plastic containers. They were not searching those items. The applicants had also demonstrated that they were willing and perhaps eager to accept gifts and other charity from Sue Andrews’ group. Express agreement to accept the gifts was eventually given. In these circumstances adding the gifts with the probes cannot be viewed as the police exceeding their invitation. While these gifts were associated with an intent to search later by means of electronic surveillance the intent was to do that only after appropriate judicial authorization was obtained.

[138] In conclusion, I am of the view that the police undercover operation conducted in this case did not violate s. 8 of the Charter either through police activity in entering the trailer and moving and repacking the applicants’ belongings or by amounting to an unreasonable implementation of the Part VI authorization granted by Durno J. on November 12, 2013.

The Validity of the Tracking Warrant Issued Pursuant to ITO 17

[139] The applicants submit that the warrant to track two cell phones associated with the applicants issued pursuant to an ITO sworn by Cst. Ciftci on October 2, 2013 (ITO 17) was obtained on the basis of material errors and omissions. They submit that the tracking warrant could not have issued on the basis of the ITO as properly edited and amplified on the review.

[140] I disagree with the applicants’ submissions. When the ITO is read as a whole against the requirements for the issuance of a tracking warrant as set out in s. 492.1 of the Criminal Code it is apparent that some of the errors and omissions in the ITO relied upon by the applicants are not material. Furthermore, if the alleged erroneous material is omitted or the ITO is modified to accord with the applicants’ position it is readily apparent from the abundant remaining information that the tracking warrant could have issued.

[141] The language of s. 492.1 of the Criminal Code has been amended since these events. As s. 492.1 read in October 2013 it provided for the issuance of a warrant authorizing a peace officer to use a tracking device where it is established that there are “reasonable grounds to suspect” that an offence has been or will be committed and “that information that is relevant to the commission of the offence, including the whereabouts of any person, can be obtained through the use of a tracking device…”

[142] On October 2, 2013 Cst. Ciftci swore a very extensive ITO. It is 79 pages long. It summarizes the police investigation in considerable detail. It seems to me that the tracking warrant in question could have been issued on the basis of a much shorter ITO.

[143] At para. 1 the ITO specifies that the tracking warrant is sought in relation to the murder of Caleb Harrison. It is not sought in connection with the deaths of Bridget Harrison or Bill Harrison, which were also being investigated. Considerable evidence is set out in the ITO to establish that Caleb Harrison was the victim of homicide. That evidence is not challenged on this application.

[144] The ITO then sets out two cell phone numbers the police want to track. The ITO goes on to clearly link those cell phone numbers to the applicants and to establish the ongoing use of those cell phone numbers.

[145] The ITO also makes it clear that the applicants are suspects in Caleb Harrison’s murder and explains why. The applicants submit that some errors, omissions or misleading statements were made in the course of providing information linking the applicants to that homicide.

[146] In this regard the applicants refer to pp. 22-23 of the ITO where Cst. Ciftci provided some information about injuries observed on Caleb Harrison’s chest. I would point out that Caleb Harrison had suffered a number of other injuries as well, including to his head. All of the injuries were described in the ITO, which also mentioned that the cause of death was neck compression.

[147] With respect to the chest injuries, reference was made in the ITO to an elongated injury caused by an object such as a rod or bar. In para. 17(a) at p. 22 Cst. Ciftci referred to a wooden cane with a metal tip that was seized from the deceased’s residence. In para. 17(b) on p. 23 Cst. Ciftci made reference to a “wood dowel” which was seized from the applicants’ garbage. The dowel was found in the same garbage bag as latex gloves and a pair of new shoes. Elsewhere in the ITO it is established that the shoes had been purchased by Mr. Fattore the night before the murder and that he left reference to their purchase out of his police statements although he had otherwise provided the police with details of his activities.

[148] Following his reference to the cane and the dowel Cst. Ciftci added in parenthesis that those items had been seized in an attempt to locate the item that caused some of the injuries on Caleb Harrison’s body. He did not specify that he was referring only to the chest injury. He also said that the items had not yet been compared to the victim’s injuries to determine if they were used to strike or incapacitate the victim.

[149] The applicants point to para. 41 of the Agreed Statement of Facts as establishing that what Cst. Ciftci swore to at p. 23 was an error. At para. 41 it is agreed that on September 16, 2013 a case conference was held and Det. Sims advised the team that the wooden dowel from the applicants’ garbage “did not match up completely” to the injury at the top part of the victim’s chest.

[150] I am not persuaded based on the foregoing that there was any attempt to mislead the justice of the peace. It would have been better if Cst. Cifci had included this information in the ITO. However, I am well satisfied that when the ITO is rectified, either by taking out anything on this point which the applicants claim is inaccurate or by adding information the applicants would like to see added in order to ensure complete accuracy, this alleged error or omission, on its own or in combination with the others alleged, would not undermine the proper issuance of the tracking warrant.

[151] The warrant could still have issued based on the ITO as modified on the review. The ITO contained a great deal of other accurate information that demonstrated why there were reasonable grounds to believe that the applicants were implicated in the homicide. This alleged inaccuracy was relatively minor in the context of the ITO read as a whole.

[152] The ITO also established that the applicants had pulled up stakes in Ontario and moved to Nova Scotia. It further established that the police had been in contact with a man in Harbourville, Nova Scotia who had been expecting to become the applicants’ landlord. He advised the police that the applicants did not arrive as expected to rent a home from him. He said they told him they would be travelling in the Nova Scotia area and added that he had not been able to contact the applicants further.

[153] Cst. Ciftci made it clear in the ITO that the police sought the tracking warrant because the whereabouts of the applicants was unknown. At p. 79 he swore that a tracking warrant for the two cell phone numbers would allow the police to determine the location of the cell phones at any given time, which would assist the police in determining where the applicants were travelling or residing.

[154] Cst. Ciftci then added the following sentence which the applicants submit is misleading: “This will potentially identify other person(s) who may be able to provide information in regards to this investigation and thus is information that will assist in the investigation of the offence.”

[155] I would point out that determining the whereabouts of the main suspects, which is the objective stated immediately preceding the sentence the applicants object to, is one of the express purposes for which a tracking warrant could be issued pursuant to s. 492.1 as it read in October 2013. There was abundant information in the ITO that the whereabouts of the applicants was unknown. Consequently, it is apparent that editing out the next sentence can have no impact on whether a tracking warrant could have issued.

[156] Quite apart from that determinative finding, it seems to me that there is nothing misleading about the sentence the applicants object to. While on its own it may not have been a basis for the issuance of the warrant, knowing where someone is staying or residing would certainly leave the police in a position to identify and gather information from people who had been in contact with the applicants. That could realistically further the investigation and would constitute “relevant information” as those words were used in s. 492.1 at the time. Section 492.1 does not and did not require a showing that the tracking warrant will lead to evidence of the commission of an offence.

[157] The applicants tie their complaint about this aspect of the ITO to a submission that s. 492.1 is required to be interpreted in a “prospective manner”. I have difficulty understanding this submission. Section 492.1 speaks of both offences that have been or will be committed. I agree with the respondent’s submission that keeping track of the whereabouts of suspects to a previously committed offence is something which advances an investigation.

[158] This investigation was far from its end as of October 2, 2013. As the evidence on the application shows, the police began planning for a Part VI authorization in September and eventually obtained that on November 12, 2013. The arrests took place on January 28, 2014.

[159] The applicants raise two other points in relation to ITO 17. First, they note that at p. 12 of the ITO Cst. Ciftci said Melissa Merritt had initially refused to provide the police with a statement in relation to the death of Bridget Harrison on the advice of her father. Cst. Citci said in the ITO that she later reluctantly agreed to provide a written statement but said she would not take a polygraph. Cst. Ciftci said he obtained this information from the “Case Overview” on the Belinda (Bridget) Harrison death authored by Cst. Boyer. However, the Agreed Statement of Facts says, at para. 38, that Cst. Boyer testified at the preliminary inquiry that Melissa Merritt gave a statement in April 2010 regarding Bridget Harrison’s death without objection.

[160] I would point out that I have no evidence that the Case Overview authored by Cst. Boyer did not say what Cst. Ciftci swore it said. Cst. Boyer’s preliminary inquiry testimony occurred long after Cst. Ciftci swore the ITO. As I mentioned in Ruling No. 7 (R. v. Merritt, 2017 ONSC 1508), at paras. 120 – 22, the accuracy of an affiant’s statements must be determined on the basis of what the affiant knew or ought to have known at the time the ITO was sworn. Consequently, I am unable to conclude that any material inaccuracy in the ITO has been established. In addition, it seems to me that even if there is an inaccuracy it is not a material inaccuracy as it relates to the investigation of Bridget Harrison’s death and the s. 492.1 warrant was obtained only in relation to Caleb Harrison’s murder.

[161] Finally, it is readily apparent that editing this impugned comment out of the ITO would not impact whether the tracking warrant could have issued. A wealth of other information in the ITO could support the issuance of the warrant.

[162] The applicants’ also point to p. 12 of the ITO where Cst. Ciftci swore that a newspaper delivery person told the police that they had seen a “suspicious” blue van parked near the Harrison residence on three occasions around the time of Bridget Harrison’s death in April 2010. The Agreed Statement of Facts, at para. 39, describes what the witness said to the police. There was no use of the word “suspicious”.

[163] In connection with this point the applicants also refer to an omission made by Cst. Ciftci. He left out of the ITO something established at para. 40 of the Agreed Statement of Facts. There it is agreed that after the newspaper delivery person told the police about the blue van, Cst. Manserra went to the area of the Harrison residence. He observed “an old blue van” with a licence plate number which differed from the licence plate number of a blue van associated with the applicants.

[164] Clearly Cst. Ciftci should have included Cst. Manserra’s additional information in the ITO if he was aware of it. However, I again point out that Cst. Ciftci sourced the information about the blue van from the Case Overview of the Belinda Harrison death investigation prepared by Cst. Boyer. When the Caleb Harrison murder investigation started that was a three year old closed case. I have no evidence as to whether the Case Overview of that prior investigation made reference to Cst. Manserra’s additional information. I have no evidence that Cst. Cifci had Cst. Manserra’s information from another source. Consequently, I am in no position to conclude that Cst. Ciftci knew or ought to have known about that information.

[165] In addition, it again seems to me that this alleged omission is immaterial because on the face of the ITO the tracking warrant was sought only in relation to the investigation of Caleb Harrison’s murder.

[166] Moreover, even if the allegedly offending material is edited out of the ITO or the record is corrected to add things the applicants wish to have included, there would be no impact on whether the tracking warrant could have issued. The ITO as modified on the review contained a great deal of other information pursuant to which the tracking warrant could issue.

[167] From time to time in these reasons I have referred to reading something into an ITO to correct an error or omission. I have not been speaking in terms of amplification. I wish to mention that I have taken this approach on the basis of and in accordance with the comments found in World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at paras. 121-122, referring with approval to R. v. Sipes, 2009 BCSC 612, at para. 41. This is a correct approach in circumstances where the applicant pursuing a sub-facial challenge to an ITO establishes that the affiant left something out of the ITO which must be taken into account in determining whether the warrant could have issued.

[168] This part of the application also fails.

Conclusion

[169] As there is no basis for editing the affidavit sworn in support of the Part VI order issued by Durno J. on November 12, 2013 in the manner submitted on this application I am satisfied that the Part VI order could have issued. The Part VI order in question is valid.

F. Dawson J. Released: March 13, 2017