COURT FILE NO.: CRIMJ(P) 1459/16 DATE: 20170524
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 Jennifer Myers and Daisy McCabe-Lokos, for Christopher Fattore Applicants
HEARD: May 11, 12, 15, 16, 2017 at Brampton
RULING No. 11: Reasonable Expectation of Privacy: The “Loaner Phone”
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.
I
[1] This ruling deals with whether the applicants had a reasonable expectation of privacy (REP) in data stored on a cell phone provided to them to use while a cell phone seized from Melissa Merritt was subjected to a technological examination pursuant to a warrant obtained by the police. The replacement phone was purchased by the police and given to the applicants to use as their family phone. There is no evidence this was part of a ruse executed by the police for the purpose of obtaining data from what has been referred to as the “loaner phone”.
[2] This issue has arisen as a discrete issue during the course of a broader s. 24(2) application to exclude evidence obtained in connection with a series of Charter violations found or conceded in other pre-trial applications. Deciding this question now will assist with the orderly progress of the s. 24(2) application.
II
[3] On August 26, 2013 Det. Derek Rice (now Sgt. Rice) interviewed Melissa Merritt in relation to the murder of her former husband, Caleb Harrison. The interview was audio and video recorded and lasted several hours. Ms. Merritt was not under arrest but she was clearly under investigation. Sgt. Rice told her that she was not a suspect but he provided her with her rights to counsel and a caution in an informal fashion.
[4] Towards the end of the interview Sgt. Rice told Ms. Merritt that he had been directed to seize her cell phone. He explained that the police had the power to seize the phone without a warrant due to the fact that something might happen to the phone and the evidence on it if the police allowed Ms. Merritt to take the phone with her. However, he also explained to Ms. Merritt that the police recognized that she had a reasonable expectation of privacy in the data or information stored on the phone. Sgt. Rice told Ms. Merritt that in these circumstances the police were required to obtain a search warrant before looking into what was stored on the phone. The two discussed the fact that the cell phone was registered to Christopher Fattore but that it was used as the family phone.
[5] Sgt. Rice advised Ms. Merritt early on in their discussion of his intent to seize the phone and that the police would immediately obtain another cell phone for her family “to use” while the police examined the seized phone (transcript of interview, p. 250).
[6] Shortly after the interview ended Sgt. Rice obtained approval to purchase a cell phone. He drove to Walmart and purchased a “pay-as-you-go” cell phone costing $50 and a $50 airtime card. He drove to the applicants’ residence and delivered the new phone to Ms. Merritt. It was still in its original packaging. Ms. Merritt advised that she would provide the police with the number for the new phone after it was activated.
[7] Five days later, on August 31, 2013, Sgt. Rice and Cst. Lowe attended at the applicants’ residence to return the seized phone and retrieve the phone the police had provided to the applicants. Cst. Lowe was the “technical liaison officer”. He testified that he knew beforehand that he would be examining the loaner phone once it was retrieved from the applicants.
[8] There is no evidence that the police called before attending at the applicants’ residence shortly after 9:00 a.m. on August 31, 2013. Sgt. Rice said that he drove into the applicants’ driveway. Within a short time Melissa Merritt came outside.
[9] Sgt. Rice testified that Cst. Lowe returned the previously seized phone and requested that Ms. Merritt sign the property tag for its receipt, which she did. Cst. Lowe thought he stood near the car about 15 feet away while Sgt. Rice returned the phone. Nothing turns on this discrepancy. Both officers agreed that Ms. Merritt was asked to return the phone the police had given to her. She went inside her residence briefly and returned with the “loaner phone” and its charger.
[10] Sgt. Rice testified that when Ms. Merritt handed him the loaner phone she said that it was out of minutes and may have some text messages stored on it. Sgt. Rice did not include this comment in his notes which he made after he and Cst. Lowe drove to a nearby location to make their notes. However, he did include it in a briefing note which he typed shortly thereafter when he and Cst. Lowe returned to the Homicide Bureau. Sgt. Rice testified that his memory was still very fresh when he prepared the briefing note. He did not add the information as a late entry to his notebook as he did not see the comment as of any particular significance. I accept Sgt. Rice’s testimony on this point.
[11] Cst. Lowe examined the loaner phone. He was tasked to do so by Det. Kristine Arnold (now Det. Sgt. Arnold), who was the primary investigator. Det. Sgt. Arnold testified that at that time she did not think that a search warrant was necessary to examine a phone owned by the police that had been loaned to people who knew they were under investigation. Later she decided that a warrant should be obtained out of an abundance of caution. The phone was examined again later by Cst. Parent after a warrant was issued. However, the examination of the loaner phone conducted by Cst. Lowe took place before the warrant was obtained.
[12] Cst. Lowe did not subject the phone to a data download or technical examination. He simply manipulated the phone as a user would do. He recorded what he saw in his notebook. This information is set out in the Agreed Statement of Fact on the s. 24(2) Application (Exhibit 5) at para. 5. There were 27 incoming and outgoing calls in the contact list. The numbers called or calling and the time and duration of the calls were noted by Cst. Lowe. There were three text messages recorded on the phone. One was a text sent about an item for sale on kijiji, one was a text from Sgt. Rice asking Ms. Merritt to call him, and one was information from 411 providing the phone number for a school in Mississauga.
[13] Cst. Lowe later turned the loaner phone over to Cst. Parent. Cst. Parent examined the phone again after a search warrant had been obtained. In addition to the information already located on the phone by Cst. Lowe, Cst. Parent copied five photographs from the phone. Two photos showed Ms. Merritt sitting on a couch using a laptop computer while Mr. Fattore was on another couch. One photo was of a person’s feet. Two were of bubble gum wrappers on the ground.
[14] Cst. Parent also used a production order to obtain subscriber information for the phone numbers that had been in contact with the loaner phone.
[15] Crown counsel introduced one other piece of evidence: a photograph of a page of a notebook where someone had written “police cell 289-233-6416” (Exhibit 10). It is agreed that was the number of the loaner phone. The police took that photograph on October 2, 2013 while executing a search warrant at 8568 Mississauga Road in Brampton. The applicants had been living there until approximately September 23, 2013 when they moved to Nova Scotia. The notebook was found inside the residence.
[16] As far as I am aware nothing of evidential value was found on the loaner phone. Nor was anything found on the loaner phone which was used in any significant fashion in obtaining other warrants. However, the applicants are interested in establishing that their s. 8 Charter rights were violated when the loaner phone was examined by Cst. Lowe as part of their efforts to establish that the Charter violations which did lead to the finding of evidence are serious violations because they were part of a pattern of abuse: R. v. Grant, [2009 SCC 32], [2009] 2 S.C.R. 353, at para. 75.
III
[17] Whether the applicants had a REP in relation to the data on the loaner phone depends upon the totality of the circumstances test set out in R. v. Edwards, [], [1996] 1 S.C.R. 128, at para. 45. I apply that test here. Determining whether there is a REP in respect of information has been a recurrent issue in the pre-trial applications in this case. I will not repeat the applicable legal principles here. They were described in Ruling No. 4 (R. v. Merritt, [2017 ONSC 80]) at paras. 130-140. See also Ruling No. 5 (R. v. Merritt, [2017 ONSC 81]); Ruling No. 6 (R. v. Merritt, [2017 ONSC 366]); and Ruling No. 8 (R. v. Merritt, [2017 ONSC 1648]), at paras. 57-60.
[18] As in previous rulings I will structure my analysis in accordance with the four groups of factors described in R. v. Spencer, [2014 SCC 43], [2014] 2 S.C.R. 212, at para. 18:
(1) the subject matter of the alleged search; (2) the claimants’ interests in that subject matter; (3) the claimants’ subjective expectation of privacy 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.
[19] Before proceeding I would add what the authorities refer to as “normative considerations” play a significant role in my analysis in connection with whether the applicants had a REP in the data stored on the loaner phone. As the majority held in R. v. Marakah, [2016 ONCA 542], at para. 56, the totality of the circumstances approach set out in Edwards fully engages such normative considerations.
IV
The Subject Matter of the Search
[20] As the governing authorities I have referred to establish, it is particularly important to properly identify the subject matter of the search. That is important here due to the fact that the police owned the phone that was used temporarily by the applicants. In my view, placing too much emphasis on that factor could lead to an erroneous conclusion on the REP issue raised here. It was the data on the loaner phone that the police wanted to examine.
[21] The respondent agrees that the subject matter of the search was the data. However, during submissions the respondent relied heavily on the fact that the phone was owned by the police and was provided to the applicants for temporary use.
[22] A factual issue arose in connection with this point. Counsel for the applicants noted that the loaner phone was a very inexpensive phone which was delivered to the applicants unactivated and in its original packaging. They also pointed to comments made by Sgt. Rice during his testimony about what was in his own mind at the time of the interview about why a replacement phone would be provided. Sgt. Rice made reference to providing a phone to the applicants as a means of maintaining a good rapport with Ms. Merritt, who had been cooperating. Ms. Merritt was not expressly told that the police would want the replacement phone back. Based on this evidence counsel for the applicants submitted that the applicants may have been under the impression that the phone was being given to them to keep.
[23] As neither of the applicants testified on the voir dire I have no direct evidence to support such a belief. The weight of the evidence is against this and I reject this suggestion. I observe that at p. 250 of the transcript of Ms. Merritt’s August 26, 2013 interview Sgt. Rice said a replacement phone would be provided to the applicants “to use” while the seized phone was examined. Considered in its entirety, the exchange between Sgt. Rice and Ms. Merritt about the phone Sgt. Rice said he would deliver supports that it was to be a “loaner”. While Sgt. Rice did not say that he would retrieve it when he returned the seized phone, on a consideration of all the evidence I find that was implicit. Sgt. Rice did not lead Ms. Merritt to think that the replacement phone would be a gift.
[24] Returning to the REP analysis, I am of the view that focus must be maintained on the fact that it was the data on the phone that was the subject matter of the search. The fact that someone other than the applicants owned the phone does not mean that the applicants could not have a REP in data stored on the device. See, for example, R. v. Cole, [2012 SCC 53], [2012] 3 S.C.R. 34, where it was found that a high school teacher had a REP in personal information stored on a work computer owned by a school board.
The Applicants’ Interest in the Subject Matter
[25] The second factor referred to at para. 18 of Spencer is consideration of whether the applicants had an interest in the subject matter of the search. Clearly they did. The respondent concedes the point. The data stored on the phone was the inevitable result of the applicants’ use of the phone. It was information about whom they had chosen to contact and who had contacted them. In this sense the information was personal information. There were also photos apparently taken inside their private residence.
The Applicants’ Subjective Expectation of Privacy
[26] Initially I was inclined to the view that in the particular circumstances here the applicants had failed to demonstrate that either of them had a subjective expectation of privacy in the subject matter. Neither of the applicants testified and I have no direct evidence about what their subjective expectations were. In addition, the replacement phone was for their temporary use only and belonged to the police. In circumstances where it was apparent to Ms. Merritt from her experience in the interview that the police wanted to examine the data stored on the seized family phone it would be surprising if she and Mr. Fattore did not expect that the police would be equally interested in examining the loaner phone when it was returned. I was inclined to see this combination of circumstances as undermining a finding of subjective expectation of privacy.
[27] However, upon further reflection I have reached a different conclusion. Several things have contributed to my conclusion that a subjective expectation is established by inference in the circumstances.
[28] I have been influenced by the words of Binnie J. in R. v. Patrick, [2009 SCC 17], [2009] 1 S.C.R. 579, at para. 37:
At the subjective stage of the test, I do not think "reasonableness" is the issue. The question is whether the appellant had, or is presumed to have had, an expectation of privacy in the information …. This is not a high hurdle. As mentioned, in the case of information about activities taking place in the home, such an expectation is presumed in the appellant's favour. It is possible that the appellant (who did not testify on this point) may never have ceased to have a subjective expectation, reasonable or not. The "reasonableness" of an individual's belief in the totality of the circumstances of a particular case is to be tested at the second objective branch of the privacy analysis. [Italics in original, underlining added.]
[29] Being careful to exclude objective considerations at this stage diminishes the significance to the inference drawing process of the fact that the applicants would have been aware that the replacement phone would be returned to the police and that the police would likely exhibit the same interest in it that they had with respect to the seized phone.
[30] These words also reinforce the significance to the inference drawing process of the conclusion that the subject matter of the search is the data on the phone, which is personal, rather than on the fact that the police owned the phone. An ever increasing number of cases suggest that Canadians have a REP in such data and that the reasonableness of any search for such information is often a separate question from the reasonableness of the seizure of the device on which the data is stored or the reasonableness of an authorized search for other data on the same device: R. v. Jones, [2011 ONCA 632]; Spencer; Cole; R. v. Vu, [2013 SCC 60], [2013] 3 S.C.R. 657.
[31] Binnie J. also noted that the standard to be met is not a high one and spoke of circumstances in which a subjective expectation of privacy may be presumed. It seems to me that this is the point at which normative considerations play a significant role. Generally speaking, I conclude it is fair to say that Canadians expect that data collected from the devices they use to engage in private communications will be regarded as private. While they are aware there are circumstances in which the authorities may gain access to such data they nonetheless consider such data to be private. This combination of factors favours a finding of a subjective expectation of privacy in the circumstances here.
[32] Those circumstances include the following. Sgt. Rice effectively told Ms. Merritt when he seized the phone from her on August 26, 2013 that the police wanted to look at the data stored on the family’s phone. He also stated that the police recognized that the applicants had a REP in such data and that, therefore, the police would require a warrant in order to gain access to that data.
[33] Ms. Merritt was then told that the police would provide the applicants with a replacement family phone. Clearly the purpose was to ensure that the family was not left without a means of communication. The police were aware that the applicants were not well off financially, had a number of young children and needed a phone.
[34] Quite apart from what these circumstances project in terms of the reasonableness of any expectation of privacy, they are circumstances which would foster a subjective expectation that before the police could look at data on any phone used as a family phone they would need to get a search warrant to do so. In terms of an expectation of privacy, the question is not whether the police might take steps to look for data on the loaner phone but whether they would require a warrant or some other equivalent legal authority to do so.
[35] Taking all of the foregoing into consideration I conclude that the low threshold for finding a subjective expectation of privacy is met by inference from the circumstances, taking normative considerations into account.
[36] In reaching this conclusion I have not overlooked that when Ms. Merritt returned the loaner phone she did so without having deleted the information the police found on the phone, that she told the police there may be some texts stored on the phone, or the photograph of the note referring to the loaner phone as the “police cell”. There is no affirmative evidence that Ms. Merritt had advance notice of the police attendance to return the phone and retrieve the loaner. If she had such notice the failure to delete the data might constitute some evidence of abandonment of any privacy interest. In any event, these factors are not necessarily inconsistent with a subjective expectation of privacy, and, as indicated at para. 37 of Patrick, an evaluation of reasonableness is not in play at this stage of the analysis.
[37] Nonetheless, inferences may be drawn from the evidence. Given what Sgt. Rice told Melissa Merritt about the requirements for obtaining a warrant, I do not see these additional factors as changing the outcome of that inference drawing process in terms of meeting the low hurdle to establish a subjective expectation of privacy.
Was the Applicants’ Subjective Expectation of Privacy Objectively Reasonable?
[38] Many of the same circumstances that I have already mentioned come back into play again in answering this question. However, there are also other circumstances which were raised by the respondent.
[39] The respondent emphasized that the applicants knew the loaner phone would be returned to the police. Based on the fact that they had both been interviewed in relation to the death of Bridget Harrison in 2010 and the murder of Caleb Harrison on or about August 23, 2013 the respondent submits that they would be well aware that the police would want to check the data stored on the loaner phone. In his submissions Mr. Taylor said that in these circumstances it is remarkable that the phone was used at all.
[40] Mr. Taylor also emphasized that because the phone belonged to the police and the applicants knew the phone would be returned to the police their ability to exercise access to and control over the data would be eliminated once the phone was returned. Mr. Taylor stressed the importance a lack of access and control played in the analysis undertaken by the majority in Marakah. That case involved whether the appellant had a REP in text messages he had sent which the police recovered from the phone of a co-accused. It did not deal with data stored on a device possessed and used by the appellant.
[41] The respondent also refers to the factors outlined in Edwards, and in Patrick at para. 27, and points out that neither of the applicants were present when the search was executed. There was no violation of their physical space.
[42] The respondent’s ultimate submission in respect of reasonableness was that, “No reasonable person in these circumstances would think that the police would not look at the phone.”
[43] In my respectful view this last submission misses the point. I agree with the accuracy of this observation but it does not address the issue. The relevant question is whether in all of the circumstances the applicants would reasonably expect that the police would be required to obtain a search warrant before they could lawfully access any data stored on the loaner phone. Given what Sgt. Rice told Ms. Merritt about this during the August 26, 2013 interview I conclude that it would be entirely reasonable for anyone in the applicants’ position to conclude that the police would require a warrant to do so. Ms. Merritt was told that the police recognized that the applicants had a reasonable expectation of privacy in the data stored on the family phone. At the same time Sgt. Rice said the police would provide a replacement phone for the family to use temporarily as its family phone. In these circumstances the inference was reasonably and readily available that the data on the loaner phone would be subject to the same reasonable expectation of privacy.
[44] This is also in keeping with normative considerations and values. It was no doubt those values that Sgt. Rice understood fed the legal requirement for a warrant for the seized family phone. Given that personal data is now often imbued with privacy protections that are separate from and go beyond considerations relating to the reasonableness of the seizure of a phone or computer on which data is stored, and given what Sgt. Rice told Ms. Merritt, it is difficult to see how the fact that the phone belonged to the police and would be returned to them could legally overwhelm normative expectations of privacy of personal information stored on the device. While access and control are relevant factors in the analysis, I conclude the situation here is distinguishable from that in Marakah.
[45] Before concluding I wish to add that Sgt. Rice acted properly and reasonably in telling Ms. Merritt what he did about the seizure and proposed search of the family phone. Sgt. Rice was conscientiously providing Melissa Merritt with an explanation of the applicable legal principles. As I found in a previous ruling, by handling the warrantless seizure of the cell phone in this manner Sgt. Rice avoided a confrontation that could have led to a finding that Ms. Merritt was detained at the time her phone was seized.
V
[46] I have found this to be a close call. However, having regard to the low hurdle to be met to establish a subjective expectation of privacy and what Ms. Merritt was told about having a REP in data stored on a family phone and the need for the police to obtain a warrant, I conclude that the totality of the circumstances test yields the conclusion on these facts that the applicants had a REP in the personal data stored on the loaner phone.
F. Dawson J.
Released: May 24, 2017