Court File and Parties

COURT FILE NO.: CR-15-152 DATE: 20170315 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – GARY ALLEN Applicant

COUNSEL: K. Hull, for the Respondent J. Sickinger, for the Applicant

HEARD: March 13, 2017

REASONS FOR DECISION RE: SECTION 8 and 24(2) CHARTER APPLICATION “THE CHAT LOG” APPLICATION

Di TOMASO J.

INTRODUCTION

[1] Mr. Allen was arrested on June 11, 2014 and now stands charged with four counts of luring and one count of making sexual explicit material available. Mr. Allen makes an Application pursuant to Rule 3.02 to abridge the time for service of this Application. The Crown did not oppose this part of the Application. An order is hereby granted pursuant to Rule 3.02 to abridge the time for service of this Application.

[2] Mr. Allen seeks the exclusion of the “chat log” introduced into evidence by D. C. Wohlert as Exhibit 10, pursuant to ss. 8 and 24(2) of the Charter.

SUMMARY OF THE EVIDENCE

[3] There is no dispute in respect of the facts set out in the applicant’s factum. Those facts are as follows:

The Crown alleges that on April 16, 2014, D. C. Wohlert was browsing personal advertisements on the Barrie section of Craig’s List. He observed that an unknown person had posted an advertisement looking for a “young woman”, “prefer under 110 lbs” for a sexual encounter.

These personal advertisements are limited to those over 18 years of age and all persons must agree to terms of use stating they are over 18 years of age prior to subscribing to the service.

D. C. Wohlert responded to the advertisement as follows posing as “Jenny”: “I hear ppl talking bout this site n i was kinda curious…saw ur ad. Ive never done this b4. Not sure what im suppose to put here…14 blond hair 5ft 90 lbs. i live in Innisfil which i guess is close. Not sure what else to put or say…guess we can chat if u want to”

An unknown person responded to the email and a conversation continued over two months.

D.C. Wohlert testified at the preliminary inquiry that there is a computer program used by his office to capture and record the “chats”. He stated “There is a program that our office has where you can click on all the different chats that you’ve had and it will populate from my computer, into the format which is in the chat log book”.

[4] In addition to these facts, the respondent adds the following:

The Respondent adds that the person posting the ad for sex identified himself as ‘Garry’, and both the ad and the conversation were found on a computer in the Applicant’s home.

The Applicant identified himself as Garry Allen in his statement to police.

POSITION OF THE PARTIES

Position of the Applicant Mr. Allen

[5] Mr. Allen submits that the “chat log” tendered into evidence by the Crown in this proceeding constitutes participant surveillance and requires prior judicial authorization.

[6] It is further submitted that the alleged s. 8 breach does not survive a s. 24(2) Grant analysis.

[7] Further, it is submitted that the “chat log” is not the best evidence and ought to be excluded.

Position of the Respondent Crown

[8] The Crown makes three submissions:

1. The communications directly between Mr. Allen and the police do not constitute police interception of those communications;
2. The communications between Mr. Allen and the police were not private communications; and,
3. The “chat log” is the best evidence of the computer conversations.

[9] The Crown submits that the evidence of the “chat log” does not violate Mr. Allen’s s. 8 Charter rights, survives any grant analysis if there is a breach and is admissible evidence at trial.

ANALYSIS

The Evidence

[10] On this voir dire, the evidence of Inessa Pesenko and DC Wohlert was presented.

Evidence of Inessa Pesenko

[11] On the blended voir dire and for the purposes of trial, the Agreed Statement of Facts of Inessa Pesenko (Exhibit 13) was admitted into evidence. That Agreed Statement of Facts reads as follows:

Ms. Pesenko is employed with the Technological Crime Unit of the Ontario Provincial Police as a computer forensic analyst. She has been employed there since December of 2014.

She first became involved in the matter before the court on February 3rd, 2015. She was assigned to conduct a search of the computer seized from the Allen residence. The search was conducted as the result of a request made by D.C. Wohlert.

Prior to conducting the search Ms. Pesenko reviewed a copy of the telewarrant to search 101 Compton Cres. in Bradford on June 11th, 2014. She checked that the correct address and name were listed and that the warrant was signed by a Justice of the Peace to confirm the warrant related to the case assigned to her. She checked the search terms listed in Appendix A of the warrant. She had no access to the Information to Obtain the warrant. She does not the have training [sic] or authority to make any other determination of validity with respect to the warrant. She did not receive any other information with respect to the validity of the warrant with respect to this search. She relies on the police officers involved to make that determination, D.C. Wohlert in this instance.

Ms. Pesenko conducted a search for evidence relating to the investigation of Mr. Allen. She conducted her investigation using a forensic copy of the data from the computer seized from the Allen residence. This data is a complete copy of the entire contents of the computer. This is done to protect the integrity of the original data. This copy was created in December of 2014 by another employee of the Technological Crime Unit John Coe.

Evidence relating to the matter before the court was located. Ms. Pesenko created a report detailing her findings.

Following the preliminary inquiry Ms. Pesenko conducted a further search of the copy of computer seized from the Allen residence. This was conducted after the preliminary inquiry was completed and before October 30, 2015. This was done on Mr. Pesenko's own initiative and not as a result of a request from D.C. Wohlert. Ms. Pesenko created a further report outlining her findings.

At all times Ms. Pesenko relied on the authority of the June 11th, 2014 warrant to conduct her searches. There was no other warrant or authority provided to her.

[12] In addition to the Agreed Statements of Facts, Ms. Pesenko gave viva voce testimony. Filed as Exhibit 15 was her report dated October 30, 2015. Her findings are summarized at pages 5, 6 and 7 as follows:

a) On June 11, 2014, Detective Constable Kip Wohlert from the OPP Child Sexual Exploitation Unit at General Headquarters submitted a Search Warrant to the OPP Technological Crime Unit for the attendance of the TCU personnel at a search warrant in the town of Bradford, Ontario for charges related to offences 172.1(1)(a) and 172.1(1)(b).

b) This search warrant was executed on June 11, 2014. Several computer and storage devices were previewed on-scene. One computer and one cell phone were seized from the search warrant residence at 101 Compton Crescent, Bradford.

c) On June 12, 2014, Detective Constable Kip Wohlert from the OPP Child Sexual Exploitation Unit submitted two (2) devices to the OPP Technological Crime Unit for the processing of devices for charges related to offences 172.1(1)(a) and 172.1(1)(b).

d) The devices that were submitted to TCU were assigned the following TCU evidence number:

• Item #013750 – is one Samsung cell phone, S/N=N/A
• Item #013751 – is one HP Pavilion 6700F, S/N:MXX8510348

e) All submitted computer devices were forensically acquired by December 02, 2014 by Civilian John COE.

f) Undercover officer D/C Kip Wohlert began an investigation using a craigslist account and was corresponding using craigslist message ID 94dec669c6583efab4689579dc84c6be@reply.craiglist.org. Undercover officer used “Jenny W” undercover name and will be referred to as “Jenny W” in this report.

g) As a result of forensic analysis reference to “Jenny W” was found on HP computer Item #013751.

h) As result of forensic analysis picture(s) of person in Leaf jersey holding up 3 fingers was found on HP computer Item #013751.

i) As a result of forensic analysis conversation between HP computer user and Craigslist user 94dec669c6583efab4689579dc84c6be@reply.craigslist.org was found on HP computer Item #013751.

j) As result of forensic analysis it was determined that on April 16, 2014 user of HP computer logged onto the “garry allan” account and used craigslist account # 4421152680/cbvkd-4421152680@pers.craigslist.org to participate in conversation with “Jenny W” introduced to him as a 14 year old girl.

k) Recovered date on suspect’s computer shows that conversation between computer user and craigslist user 94dec669c6583efab4689579dc84c6be@reply.craigslist.org started on April 16, 2014 and continued over period of months April, May and June 2014. During the conversation craigslist user #4421152680 pointed out to “Jenny W” that craigslist posted advertisement’s description was “I’m looking for sex with a young woman”. Craigslist user #4421152680 invited “Jenny W” to chat about sex, asked to take a nude picture of herself, suggested “Jenny W” to visit porno sites, referred to “Jenny W” as “sexy”, and invited “Jenny W” to meet.

l) As a result of forensic analysis reference to gmx1966@hotmail.ca was found on HP computer Item #013751.

m) As result of forensic analysis reference to “Gary” “Allen” was found on HP computer Item #013751.

n) A result of forensic analysis reference to “jenny_Sk8rgurl_12” in form of “jennySk8rgurl.12” was found on HP computer Item #013751.

[13] In-chief, she described how a forensic copy of the communications between “Jenny” (DC Wohlert) and “Garry” (Mr. Allen) was acquired from the hard drive of Mr. Allen’s computer. Those communications or “chats” were copied by means of a software program. Portions of those “chats” were found in her report at pages 23 to 45. The dates of those “chats” were found to have taken place between April 16, 2014 and June 4, 2014.

[14] She described that she had used the software to search for key words in order for the forensic program match the words in the software.

[15] At page 4 of her report, Ms. Pesenko had indicated that the data was acquired from Mr. Allen’s computer successfully using the forensic software program “with no read errors”. During the process of obtaining a forensic copy of the storage device (Mr. Allen’s computer hard drive) a mathematical process occurs that ensures that the data being copied from the hard drive is a “bit by bit copy to the destination storage”. The software program will generate a mathematical process (MD 5 hash) a value from the hard drive while the data is being copied and generate a MD 5 hash value from the destination hard drive once all data is copied. In this particular case, the acquisition process was completed with no errors and as a result, Ms. Pesenko in her report indicates that the comparison hash values within the software program were identical.

[16] In her cross-examination, Ms. Pesenko testified that she located four fragments of conversations found in different system files on the hard drive of the Allen computer including Shadow Volume Copy. A Shadow Copy is essentially a differential back-up of the contents of a hard drive. The Volume Shadow Copy service takes a snapshot of all files on the Volume that has changed, including user files (see page 46 of the Pesenko Report).

[17] The date range for the fragments are as follows:

Fragment 1 April 16, 2014 – April 23, 2014 Fragment 2 May 5, 2014 – May 20, 2014 Fragment 3 May 25, 2014 – May 27, 2014 Fragment 4 May 29, 2014 – June 4, 2014

She described how these fragments were found on the hard drive of Mr. Allen’s computer in the “unallocated space” which is designated by the operating system and stores data in that location automatically without the knowledge of the user. She testified that there were two ways that data could be created on a hard drive:

1. By creating files/modifying/deleting data; and
2. The operating itself uses storage capacity without the user’s knowledge.

[18] She testified that the fragments found on Mr. Allen’s hard drive were traces of emails captured on the computer’s web browser and not found in any email “inbox”. She found 151 emails in these various fragments. She testified that this was not the entire record of conversations between the two craigslist users. She did not have DC Wohlert’s part of the conversation. There might have been other conversations that she could not locate. She was only looking for conversations between “Jenny” and “Gary” using craigslist. She was aware of Mr. Allen’s personal address gmx1966@hotmail.ca. However, she was not looking for conversations other than the conversations between the two identifiers created by craigslist. She was not asked to search for any communications outside of craigslist.

Evidence of DC Wohlert

[19] In addition to the evidence of DC Wohlert given on the blended voir dire, regarding conversations between “Jenny” and “Gary”, he also gave viva voce evidence on this voir dire.

[20] He testified that images of PC Sloan and PC Gibbons were obtained from them. He had explained to each of them that these images would be used as part of police investigative technique. It was explained to them that these images could be used in other police investigations. There was no expectation that their images would be kept private. Marked at Exhibit 2 on the trial is a DVD of photos (2) which were the subject of a sealing order at the preliminary hearing. At the request of the Crown, the sealing order continued.

[21] In cross-examination, DC Wohlert testified that his investigation began by proactive search of the casual encounters ads contained in craigslist. He was posed as “Jenny”. It was his experience that craigslist was a known place of criminal activity. He had conducted a large number of investigations of the craigslist site and had made a large number of arrests. There were many ads placed on craigslist. He agreed that prior to entering onto craigslist there is a disclaimer a person must be 18 years of age and a caution of potential adult content. A user would need to acknowledge and click onto the disclaimer.

[22] He testified that in 2013-2014 over a period of a year and a half, he had conducted 81 craigslist investigations in an undercover capacity posing as a child. Arising out of those investigations, there were three arrests contemporaneous with the investigation involving Mr. Allen. Those arrests over the year and a half period arose out of his daily monitoring craigslist. He agreed that on a monthly basis he would look at 1,000 ads on craigslist.

[23] He would use key words as identifiers where there were ads giving rise to suspicion. He testified as to various key words he would use. He described how he would click on craigslist casual encounters and, check a title and then proceed to view the full ad. This was how he came upon the initial advertisement found at Exhibit 9, page 6. DC Wohlert posing as “Jenny” responded to the advertisement. He described how the “chat log” was generated by a message sent through a computer to the craigslist server to the responding computer.

[24] He testified that the original emails were on a different format. The “chat log” was created by a software program that puts the chats in chronological order for ease of court use. The “chat log” does not consist of screenshots of original emails. Rather the “chat log” is a compilation of chats by use of a particular software program. He did not know how that program operated. He testified that all data was captured from the computer into the compilation. He did not know exactly when this was done but sometime during the disclosure process. All the messages were received in his Gmail account. He did not create an independent record but those messages remain in the computer. He did not create a separate message as back-up.

[25] In the ITO, there were some screenshots. Approximately 100 to 200 messages of the 509 messages were used. These screenshots were taken at various times throughout the investigation. He did not know if any messages were missing. He testified that all messages were captured and presented to the court. The software program created the compilation of all the chats on the Google mail account. He relied on the Gmail account to capture the messages. The Gmail account did not notify him of any problems with the account. There was no issue in respect of the account. Marked as Exhibit 1 on this voir dire was the court presentation previous marked as Exhibit 9 on the blended voir dire. Marked as Exhibit 2 was the “chat log”, previous marked as Exhibit 10 on the blended voir dire.

[26] He described how the program enters the “Jenny” account address and the craigslist number 4421152680@prs.craigslist.org. The program pulls out all the chats back and forth and puts them in a compilation format starting with email number 1. These emails are only between the JennySkrgurl.12@gmail.com and the craigslist 4421152680 addresses. He testified that the program creates an exact copy of the emails - date, time and content. He did not know the time that the emails were received or sent. He did not reconcile the universal time stamp or compared dates. The time stamps in the “chat log did not match the original email time stamp. There is a tool used to convert the UTC stamp but that was not used by him in this case. Marked as Exhibit 3 was page 1 of the original email – email number 1 of 509.

[27] The only two addresses in this investigation were the addresses between “Jenny” and the craigslist address 4421152680. He testified that no messages were sent outside of these two addresses.

[28] He did acknowledge that there were some emails that were the gmx1966 Hotmail address. He did notice this as one of the emails within the thread of communications between “Jenny” and the craigslist 4421152680. He testified that all messages were sent through the craigslist server. He further testified that he responded to emails through the craigslist server. He did not respond directly to the gmx address. The first time that he observed the gmx address was when he was putting together the original email package. He could not recall if there any glitches in respect of the craigslist server. Again, based on his recollection he did not sent any emails to the gmx address directly. All responses were to the craigslist identifier. All messages went through the craigslist server number. He did not see the gmx address until about a month ago when he reviewed original emails.

[29] He was taken through many of the “chat log” entries. He did not agree that “Gary” seemed reluctant or was stepping back. When asked if he was a cop, he did not agree that he was because he was acting undercover.

[30] When asked why he did not stop communicating with Mr. Allen after Mr. Allen indicated that he was looking someone over 18 years of age, DC Wohlert testified that it was up to Mr. Allen to decide if he wanted to continue. DC Wohlert provided Mr. Allen with the opportunity to continue if he wanted to and the conversation continued with the exchange of photographs. DC Wohlert provided two photos to Mr. Allen as “Jenny”. These photos did not match the description of “Jenny”.

[31] There was some question as to whether or not some conversations referenced keeping the conversations private such as no monitoring by “Jenny’s” mother. He was asked about some portions of the communications which appear missing or disjointed. His evidence was that there were none. However, he was taken to email 110 that dealt with Mr. Allen referencing “Jenny” going shopping but no previous emails by “Jenny” telling him that she was going shopping. Also, there were some emails that were sent by Mr. Allen referencing “Jenny’s” school. These emails were not commented upon by DC Wohlert for safety reasons. He did not wish to identify any high school where young people would be attending.

[32] He testified that “Gary” (Mr. Allen) sent emails telling “Jenny” where to go to find pornographic sites such as Bad Jo Jo and Red Tube. There was an email sent by Mr. Allen that referred to teen sex (email 195).

[33] There was evidence of the photos of adult female detectives being sent to Mr. Allen with their faces obscured. The images in these photos did not match the description of “Jenny”. While there was a message about sending another picture with less clothes on, no such photo was ever sent to “Gary”. No naked pictures were sent to him either. At email 390 “Gary” says “forget I asked”. However the conversation continues about naked pictures. There were conversations about a meeting which never occurred. After that, Mr. Allen was arrested. There were questions about encouraging Mr. Allen to meet. DC Wohlert testified that it was Mr. Allen brought up the subject of meeting “Jenny” much earlier in time. He wanted to meet “Jenny” to take pictures.

[34] DC Wohlert denied that it was not illegal to have discussions with a person under 18 years of age about sex. It was illegal when such conversations were for the purpose of facilitating certain criminal conduct – the kind of conduct with which Mr. Allen is charged.

[35] While Mr. Allen called off the meeting of June 11, 2014, he still wanted to meet but no other later date was set up for a meeting.

[36] In re-examination, DC Wohlert testified that he did not manually delete any of the images on the email server. He did not know about the adjustment of time on the server. He did not know what the UTC was about except for the Wikipedia definition. He did not know what the time zone minus 7 was about. He did not know if daylight savings time was taken into account in respect of time. He testified that he did not know when the screenshots were taken as found in the ITO.

Reasonable Expectation of Privacy

[37] Mr. Allen submits that his s. 8 Charter rights have been violated. It is submitted that Mr. Allen had a reasonable expectation of privacy in the conversations recorded, namely, the “chat log”. Mr. Allen relies on s. 8 of the Charter which states that “everyone has the right to be secure against unreasonable search or seizure”. It is submitted on behalf of Mr. Allen that the “chat log” was obtained by way of unreasonable warrantless search by the police who should have obtained a prior judicial authorization pursuant to s. 184.2 of the Criminal Code to permit the recording of Mr. Allen’s conversations.

[38] It is submitted that Mr. Allen did not want to talk to a police officer and he made that clear when he asked whether “Jenny” was a cop. He did not wish the recipient of his message to be a police officer. He wanted to engage in a private conversation between himself and “Jenny”. If it is found that Mr. Allen had a reasonable expectation of privacy, then s. 184.2 of the Criminal Code is engaged as a warrant would be required to create a surreptitious reporting.

[39] For the following reasons, I find that the applicant’s conversations were not private conversations on either a subjective or objective basis for the following reasons.

[40] Mr. Allen advertised in the Casual Encounters section of craigslist hoping to meet a young woman for sex. He made no request for and made no promises of confidentiality. There were no representations made by the recipient that the communications would be secure. Further, we do not know what Mr. Allen’s expectations were because he did not testify on this voir dire. However, he did not wish to talk to a cop. He invited a response from a broad category of strangers i.e. “a young woman doesn’t matter what nationality but would prefer under 110 pounds for sexual encounters.”

[41] In R. v. Spencer, 2014 SCC 43, 2014 S.C.C. 43, [2014] 2 S.C.R. 212, Cromwell J., for the court, discussed factors relevant to the analysis under s. 8 as those factors relate to the reasonable expectation of privacy. Of the four factors set out by Cromwell J., factor three – the claimant’s subjective expectation of privacy in the subject matter; and factor four whether this objective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances applies in our case.

[42] In R. v. Mills, 2017 NLCA 12, [2017] N.J. No. 55 (Nfld. C.A.) at paras. 23-24, the court held:

[23] In this case, the analysis focuses on the third and fourth headings identified in Spencer; that is, Mr. Mills' subjective expectation of privacy in his communications with "Leann" and whether that subjective expectation was objectively reasonable in the circumstances. Mr. Mills was using electronic social media to communicate and share information with a person he did not know and whose identity he could not confirm. On an objective analysis, as the sender of such communications, Mr. Mills must have known that he lost control over any expectation of confidentiality that he appears to have hoped would be exercised by the recipient of the messages. He took a risk when he voluntarily communicated with someone he did not know, a person he was not in a position to trust. Any subjective expectation of privacy Mr. Mills may have had was not objectively reasonable. In the absence of a reasonable expectation of privacy, section 8 of the Charter was not engaged.

[24] I hasten to add that the nature of communications between Mr. Mills and "Leann', which took place using social media such as Facebook, must be distinguished from communications in which there would, in fact, be a reasonable expectation of privacy. For example, privacy could be expected if the recipient of a communication is the sender's bank. Such a communication is ·sent for a particular purpose, using a means of communication that is represented to be secure, that clearly engages objectively reasonable privacy interests.

[43] In R. v. Graff, 2015 ABQB 407 at para. 59, the court held,

Further, the recipient provided no representations or assurances regarding the confidentiality of the communication. There was no discussion as to who had access to the computer used by the recipient. The Applicant did not propose or impose any restrictions on the use that the recipient would make of the material he forwarded. He had no relationship with the recipient which would lead him to believe that the material would be kept in confidence.

[44] Further, at para. 63, the court found that:

In sum, the Applicant sent highly personal information over the internet to a complete stranger, in the absence of any invitation to send such information, and without taking any reasonable steps to ascertain the identity of the recipient, to ensure his own anonymity, or to ensure any confidentiality with respect to the information he sent.

[45] In the case at bar, Mr. Allen put his request in writing and carried on in writing. He would have been aware that the exchange was creating a record on the computer of the recipient because he was creating the record on his own computer. The recipient is entitled to keep the record of communications. Mr. Allen would know that and the law entitles police to obtain and keep a copy of that record: see R. v. Jones, 2016 ONCA 543, [2016] O.J. No. 3737 (O.C.A.) at paras. 32-33; R. v. Graff, 2015 ABQB 407, supra, at paras. 60-61.

[46] Mr. Allen had no control over what the recipient did with his emails and he would have known that. He did not discuss privacy in the chats except to tell “Jenny” how to keep her computer’s browser history from disclosing to her mother that “Jenny” had been porn on sites. Control over the ultimate destination of the chats, or lack of it, is an important factor in assessing whether or not the claim of a privacy interest is reasonable: see R. v. Marakah, 2016 ONCA 542, [2016] O.J. No. 3738 (O.C.A.) at paras. 63-64, 85.

[47] Mr. Allen asked “Jenny” if she was a cop and it is clear that he did not wish to speak to a police officer. “Jenny” replied that this was her email. The only restriction on the face of the emails was that he did not want “Jenny’s” mother to find messages that “Jenny” had been on porn sites. Mr. Allen was aware that “Jenny” would be telling a friend and the messages indicate that he wanted to meet “Jenny’s” friend. I find that there was no promise of confidentiality on “Jenny’s” part. Unlike in R. v. Ghotra, 2015 ONSC 7253 “Jenny” and Mr. Allen were not carrying on an email conversation in a private chat room. To the contrary, Mr. Allen advertised for a young woman and invited a conversation from any stranger including from the category of type of young woman he described for sexual purposes. He disclosed highly personal information over the internet to complete strangers with no reasonable steps to identify with whom he was corresponding or protect his own anonymity.

[48] In this case, there is no communication sent for a particular purpose, using a means of communication that has represented to be secure, that would clearly engage objectively reasonable privacy interests such as the example of a bank found in Mills.

[49] Save for the restriction on the face of the emails relating to “Jenny’s” mother, I find there were no representations or assurances regarding the confidentiality of Mr. Allen’s communications. Subject to the one restriction, he did not propose or impose any restrictions on the use that the recipient (“Jenny”) would make of the material he forwarded. He had no relationship with “Jenny” which would lead him to believe that the material would be kept in confidence.

[50] As in Graff, while “Jenny” described herself as being 14 years of age with blonde hair, 5 feet in height and weighing 90 pounds, there was no way for Mr. Allen to verify the accuracy of the information provided by her. While he apparently hoped he was communicating with a young female instead of a police officer, he had no objectively reasonable basis for this hope. He had no relationship with “Jenny” which would lead him to believe that their conversations would be kept in confidence.

[51] Far from disclosing an expectation of privacy, I find the evidence establishes that Mr. Allen, as did the applicant in Graff, gambled in talking to “Jenny”. In Graff, the court held that while the applicant gambled or hoped that the chat and other material and information he sent would remain private, he had no basis upon which to form a subjective or objectively reasonable expectation of privacy in the circumstances. I find Mr. Allen to be in exactly the same circumstances as the applicant in Graff. I find Mr. Allen had no basis upon which to form a subjective or objectively reasonable expectation of privacy in the circumstances: see R. v. Ghotra, 2015 ONSC 7253, supra, at para. 128.

[52] Mr. Allen cited the Supreme Court of Canada decision in R. v. Duarte, [1990] 1 S.C.R. 30 at para. 26 where the court recognized that the surreptitious recording of a private communication is a search and seizure within the meaning of s. 8 of the Charter. I find Duarte is distinguishable from our case. In this regard, I adopt the reasoning of Durno J. in Ghotra at para. 125:

…while Duarte addresses the concerns for the date surreptitiously creating a record of a communication that does not generate its own record, those concerns do not apply to text messages. This case does not involved [sic] oral communication and the state creating the record. By its nature text messages create a record of the communications. They already exist and the participants know there is a record. They create it, see it and can access it on their computer.

[53] I find that the communications between “Jenny” and Mr. Allen were not private communications. He had no basis upon which to form a subjective or objectively reasonable expectation of privacy in the totality of the circumstances. As a result, DC Wohlert was not obliged to seek prior judicial authorization to make a recording of the chats.

Are the Communications an Intercept?

[54] Mr. Allen submits that the actions of DC Wohlert to create the “chat log” constitute an intercept and recording given to an undercover police officer which requires prior judicial authorization pursuant to s. 184.2 of the Criminal Code.

[55] I have already found that Mr. Allen had no basis upon which to form a subjective or objectively reasonable expectation of privacy in the circumstances.

[56] Mr. Allen submits that the “chat log” created by DC Wohlert through an online investigation constituted participant surveillance and therefore required prior judicial authorization. See R. v. Kwok at para. 22.

[57] The Crown takes the position that the communications between Mr. Allen and DC Wohlert were not interceptions. The interception of communications and the application of the Criminal Code was considered by the Newfoundland and Labrador Court of Appeal in R. v. Mills at paras. 10-18.

[58] At para. 11, the court considered the wording of s. 184.2 of the Criminal Code.

[59] At para. 12, the court considered the definition of “intercept” in s. 183 of the Criminal Code. The definition did not alter the ordinary meaning of an interception which requires the involvement of a third party. At para. 13, the court found that where there is direct communication between two people, the intended recipient cannot be characterized as having “intercepted” a communication meant for that person.

[60] In Mills, at paras. 14 and 15, the court held,

[14] Further, the 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. Viewed from another perspective, if "Leann" had, in fact, been a fourteen year old girl, it could not be said tha t her receipt of the communications from Mr. Mills constituted an interception.

[15] Electronic communications in the modern world involve a degree of anonymity and easily permit either the sender or recipient of · a message to give misleading or false information. In this case, the recipient purported to be a fourteen year old girl while the sender purported to be a twenty-three year old male. Neither was true.

[61] At para. 16 in Mills, the court held that ss. 184 and 184.2 of the Criminal Code apply only where there is an “intercept”. That criterion was not satisfied on the facts of that case. It followed at Part VI of the Criminal Code did not apply and that the trial judge erred in concluding that authorizations under s. 184.2 were required.

[62] Mr. Allen relies on Duarte which is a case involving a one party consent. Duarte is distinguishable from our case where we have two parties where messages are exchanged and recorded by each party in the same way on their computers.

[63] I find that the procedure used by the police, resulting in obtaining the “chat log” evidence did not require authorization under s. 184.2 of the Criminal Code. In this case, Mr. Allen not only knew the communications were being recorded, he made the record of these recordings. Both parties consented to the recording. I find that two-way party consent in the case at bar is not captured by Part VI of the Criminal Code. Accordingly, Part VI of the Criminal Code has no application to this case.

[64] As I have found that there is no s. 8 Charter breach in this case, it is unnecessary for me to undertake the s. 24(2) of the Charter analysis in accordance with R. v. Grant, 2009 SCC 32, 2009 S.C.C. 32 at para. 71.

Is the “Chat Log” the Best Evidence of the Computer Conversations?

[65] Mr. Allen submits that the “chat log” is inadmissible as it not the best evidence. He submits that the “chat log” does not consist of the original emails but rather is a compilation of some emails but not all. He asserts that the emails are deficient as they are disjointed and/or incomplete. It is also contended that there could be other messages which are sent outside of the craigslist server. It is further submitted that the Crown had the opportunity to tender in evidence the original emails, being the best evidence, but failed to do so. On these grounds, Mr. Allen submits that the “chat log” should not be admitted into evidence.

[66] The Crown submits that the “chat log” is the best evidence. The concept of an original when talking about electronic communications and electronic documents is non-existent.

[67] The Crown cites a decision of the Saskatchewan Court of Appeal in R. v. Hirsch, 2017 SKCA 14, [2017] S.J. No. 59. At para. 22 the court states:

At common law, the best evidence rule requires the proponent of a record to produce the original record or the next best available record: Watt's Manual at 1 06. However, the concept of an original is not readily applied to electronic documents. Further, due to the inherent nature of electronic documents, it is often impossible to provide direct evidence of the integrity of an electronic document sought to be adduced into evidence. For this reason, the Canada Evidence Act dispenses with the common law requirement of an original record and substitutes other means of satisfying the purpose that underpins the best evidence rule. See, for example, the application of these provisions in R. v. Nde Soh, 2014 NBQB 20, 41 6 NBR (2d) 328.

[68] The nature of electronic evidence consists of data in hexadecimal form which is the way a computer encodes and stores information in 0s and 1s until a software program or the computer operating system generates computer text in readable “human” form. This was the evidence of Special Police Constable Daniel Bingham.

[69] I should note that neither party had raised the issue of best evidence in their factums. However, each party made submissions on this point.

[70] While Ms. Pesenko found that two gmx messages appeared in her analysis, she testified that this could have resulted through a craigslist glitch. She did not know if there was such a problem or not. However, she did not find any direct emails between “Jenny” and Mr. Allen outside of craigslist.

[71] DC Wohlert found one gmx reference in a thread of conversations on his computer. His evidence was that he did not send any messages outside of craigslist. I find that the evidence supports that all chats were sent through craigslist. DC Wohlert generated the “chat log” from a program designed to compile the chats from two source email addresses that he compared. He testified that he compared the “chat log” with his chats and they were the same. DC Wohlert was one of the participants in the chat. I find that his evidence supported the integrity of the “chat log”. At length, he described how the “chat log” was created, what messages were contained in the “chat log” and how the data was retrieved from Mr. Allen’s computer and how the computer program was able to record a two-way conversation between “Jenny” and Mr. Allen. Unlike in Ghotra, DC Wohlert did not create parts of the text messages on his computer, and copied them to himself from his computer. Nevertheless, DC Wohlert’s evidence provides an evidentiary basis upon which I find the “chat log” compilation is admissible. He explained how and why the “chat log” was created in the first place. He testified that what was recorded were the conversations that occurred and that the contents were accurate although he could not account for time conversions. I find that his evidence is the best evidence of these conversations. I find that if there is any issue raised in respect of the “chat log”, such an issue is not one of admissibility but rather as one of completeness or the weight to be attributed to DC Wohlert’s evidence regarding the contents of the conversations. See R. v. Ghotra, 2015 ONSC 7253, supra, at paras. 148 and 149.

[72] There is no evidence as to the existence of any other conversations outside the “chat logs”. There is no evidence that the contents of the “chat logs” are or could be inaccurate. Instead of evidence there is only speculation and speculation cannot found a s. 8 Charter breach.

CONCLUSION

[73] The applicant Mr. Allen has failed to satisfy his onus on a balance of probabilities that there is a breach of his s. 8 Charter rights. He had no basis upon which to form a subjective or objectively reasonable expectation of privacy in the circumstances. The “chat log” introduced into evidence by DC Wohlert was not an interception of a private communication and does not require prior judicial authorization pursuant to s. 184.2 of the Criminal Code. Neither that section nor Part VI of the Criminal Code has application to this case. Further, I am not persuaded that the “chat log” is inadmissible because it offends the Best Evidence Rule. Accordingly, I find the “chat log” is admissible evidence as are any of the chats set out in the court presentation (Exhibit 9). For these reasons, the application is hereby dismissed.

Di TOMASO J. Released: March 15, 2017