Court File and Parties

COURT FILE NO.: CR-15-00008724 DATE: 20160608 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ANTONIO RICCIARDI Applicant

Counsel: Joanne McIntyre and Michelle Rumble, for the Crown Jessica Sickinger and Jeffrey Goldglass, for the Applicant

HEARD: May 19, 2017

Publication Restriction Notice

Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.

Reasons for Ruling Re: Section 24(2)

DI LUCA J.:

[1] On May 5, 2017, I issued a Ruling reported at 2017 ONSC 2788, providing my Reasons on the Garofoli application reviewing six judicial authorizations, as well as some “plain view” seizures that occurred during the execution of the search warrants on Mr. Ricciardi’s bedroom. In that Ruling, I found that five of the six judicial authorizations were invalid. I also found that the police exceeded the bounds of the common law and statutory “plain view” doctrine in seizing certain items.

[2] As a result, I found that the police unlawfully seized and then searched the Applicant’s personal computer and cell phone. I also found that the observations of the laptop screen made prior to the seizure of the computer and the seizures of the handcuffs, forensics book and notes found in the Applicant’s bedroom were also unlawful. Lastly, I found that the compelled production of the Rogers cell phone records was unlawful. The admissibility of these items is the subject of this Ruling.

[3] Before turning to this issue, I note that on April 18, 2017, I also issued a Ruling reported at 2017 ONSC 2105, dealing with the lawfulness of the warrantless seizure of Mr. Ricciardi’s sweatshirt. In that Ruling, I found that the search of the Applicant and the seizure of his sweatshirt in the courtroom was not justified pursuant to s. 489(2) of the Criminal Code. At the outset of submissions on s. 24(2) of the Charter, the Crown advised that in view of this Ruling, it was no longer seeking to tender the sweatshirt into evidence. As noted in the Ruling, the Crown remains free to call viva voce evidence regarding the description of the clothing worn by Mr. Ricciardi at the time of the search and seizure.

The Section 24(2) Framework

[4] Mr. Ricciardi bears the onus of establishing on a balance of probabilities that the admission of the impugned evidence would bring the administration of justice into disrepute.

[5] As the Supreme Court of Canada sets out in R. v. Grant, 2009 SCC 32, the focus of the s. 24(2) analysis is on the overall repute of the administration of justice and the public’s confidence in the justice system in view of the long term consequences of admission of unlawfully seized evidence.

[6] The analysis is necessarily prospective in nature. The various breaches of s. 8 of the Charter have already damaged the administration of justice. The issue is whether further damage to the administration of justice will be occasioned by the admission of the evidence.

[7] The focus of the analysis is not a case specific administration of punishment on the police or compensation for the accused. The analysis is objective. It asks whether a reasonable person informed of Charter values would find that the admission of the evidence in question would bring the administration of justice into disrepute.

[8] The analysis is comprised of three lines of inquiry. The first line of inquiry addresses the seriousness of the Charter-infringing state conduct. In this regard, I note the guidance of the Supreme Court in R. v. Grant at paras. 74 and 75:

State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, [1995] 2 S.C.R. 297, per Cory J. “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, [1990] 3 S.C.R. 3, at pp. 32‑33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[9] The second line of inquiry assesses the impact of the violation on the accused’s Charter-protected interests. This line of inquiry requires an assessment of the nature of the Charter-protected interests engaged and the degree to which the Charter violation impacts those interests. In R. v. Morelli, 2010 SCC 8 at paras. 104 and 106, Fish J. provides the following guidance in assessing the very types of violations present in this case:

I turn in that light to the second factor set out in Grant: The impact of the breach on the Charter-protected interests of the accused. The intrusiveness of the search is of particular importance in this regard. Our concern here is with the search of the appellant’s home, in itself a serious breach of the appellant’s rights under s. 8 of the Charter. But there is more. The infringement in this case involved a search of the appellant’s personal computer — and his wife’s laptop computer as well. In passing, I recall here the Informant’s failure to mention that the appellant lived with his wife. This not only cast a dark light in the appellant’s presence alone with their child — perfectly understandable in the circumstances — but may also explain why the laptop, which was in fact not his, was seized and presumably scrutinized as well.

As I mentioned at the outset, it is difficult to imagine a more intrusive invasion of privacy than the search of one’s home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet.

It is therefore difficult to conceive a s. 8 breach with a greater impact on the Charter-protected privacy interests of the accused than occurred in this case.

[10] The third line of inquiry assesses the societal interest in an adjudication on the merits. This line of inquiry recognizes that society generally has an interest in having criminal charges adjudicated on their merits. In this regard, the court must ask whether vindication of a Charter violation exacts too great a toll on the truth-seeking function of the trial process: see R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.) at para. 47.

[11] The factors assessed in this line of inquiry include the reliability of the evidence, the importance of the evidence to the Crown’s case and the seriousness of the offence. On this last factor, the Supreme Court in Grant at para. 84 has noted that the seriousness of the offence is a factor that cuts both ways:

It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. Indeed, Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society’s interest in its prosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus. As pointed out in Burlingham, the goals furthered by s. 24(2) “operate independently of the type of crime for which the individual stands accused” (para. 51). And as Lamer J. observed in Collins, “[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority” (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

[12] Once the various lines of inquiries have been determined, the role of the court is to assess whether on balance the admission of the evidence would bring the administration of justice into disrepute. Where the first two lines of inquiry strongly favour exclusion, the third line will rarely, if ever, tip the balance in favour of admission: see R. v. McGuffie, 2016 ONCA 365 at para. 63.

Application to this Case

(a) The Computer

[13] I will start with the admissibility of the computer evidence seized from Mr. Ricciardi’s bedroom. As set out in the Garofoli Ruling, the police used one warrant to seize the computer. A second warrant was used to conduct the initial examination of the computer. A third warrant was applied for after the police discovered what they believed was child pornography on the computer. All three warrants failed the Garofoli analysis.

[14] The defence argues that in view of the multiple failings on the face of the warrant used to search the computer and the fact that the police had insufficient grounds for searching the content of the computer, the administration of justice will be brought into disrepute if the computer and the evidence obtained therefrom is admitted at trial. The search of a personal computer is extremely intrusive and, in this case, was essentially a fishing expedition. These circumstances, according to the defence, clearly support exclusion.

[15] The Crown argues that the Charter violations in relation to the seizure and search of the computer are attenuated by the fact that the police, acting in good faith, did not conduct an indiscriminate search of the contents of the computer.

[16] The Crown points to the fact that Det. Sedgewick created and provided a list of search parameters linked to the specific offences under investigation. Det. Sedgewick further instructed investigators to stop their search if they found evidence of other offences.

[17] The Crown also points to the evidence of Officer Renwick who testified that he conducted the search with the scope of the offences set out in the ITO clearly in mind. In this regard, he identified a rational connection between the items he seized during the computer search and the offences under investigation. Indeed, when he discovered evidence that appeared to be child pornography, he stopped the search and notified his superiors who, in turn, tasked the affiant to seek a further warrant.

[18] The Crown notes that as a result of the search protocols applied, only 7.5% of the available data on the computer was seized.

[19] The defence disagrees with the Crown’s description of the scope of the search and submits that at its core, the search was effectively indiscriminate. The defence points out that while only 7.5% of the data on the computer was seized and included in the report, the nature of the initial cursory searches by Officer Renwick and Mr. Wu, the civilian computer technician, meant that the police reviewed almost all of the content of the hard drive. The defence submits that these “cursory” searches were unconstitutionally broad. Indeed, the defence argued in a separate voir dire that even if the computer search warrant was valid, the manner of the search was nonetheless flawed to point of warranting exclusion. In view of my findings on the Garofoli application, I did not need to rule on the “manner of search” application. That said, I will now make some findings in relation to the manner of the search conducted as it is a relevant factor in determining the s. 24(2) issues.

The Manner of Search of the Computer

[20] The law regarding the search of the contents of a computer is in a state of continual development. In R. v. Vu, 2013 SCC 60, the Supreme Court has made it clear that search protocols are not constitutionally required in all computer search cases. The Supreme Court also made it clear that a search warrant to examine a computer does not give police permission to conduct an indiscriminate review of the entire contents of the computer.

[21] The balance point between these positions is fact and case specific. Generally, where a computer warrant properly lists the types of items sought and a specified set of offences, an ITO provides reasonable grounds for believing that the items sought will afford evidence of the specified offences under investigation, the resulting search will have the requisite degree of focus and will not violate constitutional principles: see R. v. Jones, 2011 ONCA 632 at para. 43. In this regard, where the police are operating under a proper warrant, they are permitted to engage in a cursory review of the contents of a computer in order to determine whether certain files and folders are likely to contain evidence of the offences under investigation: see Jones at para. 44. If during the course of this cursory search the police uncover evidence of other criminal offences, that evidence may be seized pursuant to s. 489(1) of the Criminal Code or under the “plain view” common law doctrine. That said, neither of these seizure powers provide authority for police officers to search beyond the intended scope of a search warrant.

[22] Turning to facts of this case, one difficulty with assessing the scope of the search conducted is that the ITO reveals the police belief that the search of the computer would reveal evidence of the offences under investigation, as well as evidence relating to other unknown offences and victims in relation to which the police did not have reasonable and probable grounds. It is clear, in my view, that the police wanted access to the computer because they believed it would reveal the true extent of Mr. Ricciardi’s offences, beyond those already under investigation.

[23] The concern in this case is magnified because the police obtained a warrant to search the contents of the computer, which on its face contains no restrictions on the types of files or data that can be searched for and no list of offences in relation to which the items will afford evidence. As a result the warrant obtained, when set against the backdrop of the investigative intentions expressed in the ITO, creates a scenario where there exists a real risk of an overly broad and therefore unconstitutional search.

[24] That said, at the outset of the search, Det. Sedgewick created a list of search terms that were used to frame the search conducted. The search terms came from a number of sources including the various notes found in the Applicant’s bedroom, the viewing of the firearms-related icon on the Applicant’s computer screen and the nature of the offences under investigation. While a cursory search of many, if not most of the computer’s files was done, I am satisfied that this was done to determine potential relevance of the items, albeit in relation to offences likely beyond those listed for investigation in the ITO.

[25] On this latter issue, I note that Officer Renwick sought to draw a connection between items relating to other victims and the investigation of the offences against G.E. As discussed in the Garofoli Ruling, evidence sought using a search warrant is not restricted to admissible or direct evidence of the offences under investigation. Evidence “with respect to” the listed offences can include evidence of other similar offences which might reveal a pattern or motive on the part of the accused. The issue will often be one of degree. In this case, the issue is well demonstrated by reference to evidence of child pornography. As set out above, the investigators clearly believed that if they came across evidence of child pornography they would need a new warrant as that evidence was in no way related to the offences under investigation. Conversely, the officers viewed evidence relating to the existence of other victims or other offences, including, for example, the F[…] incident, as evidence “with respect to” the offences involving G.E.

[26] In my view, it is important to keep in mind that investigating officers are involved in the “front-end” of an investigation case when executing a search warrant. They do not have the entire picture before them and cannot be expected to know with any degree of certainty the limits of the evidential links between items of evidence and the offences under investigation. To refer specifically to this case, early on in the search of the Applicant’s computer, the police observed evidence of certain Craigslist ads and resumes sent by unknown women to the Applicant. These items were flagged as relevant to the investigation of the Applicant’s offences involving G.E. as the police were trying to ascertain how the Applicant found G.E. While in hindsight it is clear that the Craigslist ads and resumes have no relation to the offences involving G.E., this would not have been apparent at the outset. I accept that the officers drew a rational, though at times broad connection, between the items they flagged for seizure and the offences under investigation.

[27] During the actual search conducted by Mr. Wu and Officer Renwick, revisions were made to the search terms used. Officer Renwick was primarily responsible for developing the list of search terms, though he did this in concert with Det. Sedgewick. The expanded list of search terms was based in part on the search terms provided by Det. Sedgewick, in part on Officer Renwick’s policing experience and in part on what had been discovered on the computer. The search of the computers unfolded and developed over time as the nature of the police investigation also unfolded and developed.

[28] I am satisfied that once the warrant to search the computer was obtained, the police did not engage in an indiscriminate review of the entire contents of the computer. While the warrant itself contained no limitation on the type of file or item sought in relation to the offences under investigation, it is clear that the investigating officers did not view the warrant as “carte blanche” authorizing a free search at will.

[29] A reasonably tailored search protocol was adopted and implemented. That protocol was revised as the investigation developed. The protocol was not perfect and may have been in some regards too broad. It was also based, at least in part, on unlawfully seized evidence including the notes seized from the bedroom and the observations made of the Applicant’s laptop screen. This last fact presents a challenge as it is next to impossible to unpack and carve out the portions of the search that were conducted based on search terms that were obtained unlawfully.

[30] That said, for the purpose of the s. 24(2) analysis, I am satisfied that the officers made a good faith effort to limit the scope of the search of the Applicant’s computer to only material they believed was broadly relevant to the offences under investigation. The good faith is highlighted by the fact that officers stopped the search and obtained a new warrant when they discovered what they believed was child pornography. To be clear, the approach applied was not perfect but perfection is not the standard.

The Seriousness of the Violation

[31] The violation of the Applicant’s s. 8 Charter rights in relation to the search and seizure of his personal computer is very serious. As set out in my Ruling, there are a number of significant issues with this search. To recap, I found that both the ITO used for the seizure and the ITO’s used for the subsequent searches of the computer fell significantly short of providing reasonable and probable grounds to believe that the computer would provide evidence of the offences under investigation. As well, I found that the warrant used to search the computer was fatally flawed in a number of regards, including the failure to specify the items to be searched for (apart from the computer itself) and the failure to include a list of offences under investigation. Lastly, I also found that the warrant to seize the computer failed to set out a sufficient basis for a night time entry.

[32] In my view, the combined effect of the first two problems is significant. The police obtained a broad, essentially open ended warrant, on the basis of grounds that fell far short of the constitutional mark. I have no doubt that the affiant did not intentionally set out to subvert the warrant process or mislead the issuing justice. Indeed, I found that the affiant made full, fair and frank disclosure, and did not improperly use the warrant process as a leverage point for a search beyond the scope of the stated offences. However, the nature of the drafting used in the ITO, including the use of imprecise language on the key issue of reasonable and probable grounds, demonstrates a lack of experience that is troubling. More troubling is the fact that the affidavit fails to convey an objective factual basis supporting the requisite standard of belief.

[33] As well, the quality of the drafting of the actual warrant to search the computer is also entirely problematic. While I accept that this was the product of a lack of experience and not intentional, its effect was to create a warrant that was effectively limitless, albeit within day-time hours: see R. v. Nguyen, [2017] O.J. No. 1896 (Ont.S.C.J.).

[34] I accept that the manner of search, while not perfect was reasonably and appropriately tailored to the exigencies of the case as it unfolded, and that this fact attenuates the seriousness of flaws on the face of the warrant. Nonetheless, the flaws on the warrant itself are serious and reveal a fundamental lack of attention and understanding both on the part of the affiant and the issuing justice.

[35] I am less concerned about the absence of grounds in terms of the night entry to seize the computer. In my view, this was a minor breach that was significantly attenuated by the fact that the accused was in custody and the police had already lawfully been at the apartment at night a day prior. The search was short in duration and the entry was neither dynamic nor otherwise extraordinary.

[36] On the whole, I find that the warrants for the computer were effectively a fishing expedition. The computer search was premised on two prongs: the offences involving G.E and the breach of recognizance investigation involving attempts to possess a firearm. The warrant failed to identify any basis, on reasonable and probable grounds, to believe the computer would afford any evidence of the offences involving G.E. In relation to the firearm, the only basis articulated was the unlawful observation of the Applicant’s laptop screen once activated by a curious officer. In neither case were the police close to the line.

[37] While the manner of the search and the absence of bad faith attenuate the seriousness of the violation to a degree, it is not sufficient to render the violation anything but serious.

[38] In my view, this branch of the Grant analysis favours exclusion of the computer evidence.

Impact on Charter-Protected Interests

[39] The target of the search was the Applicant’s personal computer retrieved from what was believed to be his bedroom. To paraphrase Fish J. in R. v. Morelli, one can think of no more serious a violation of the privacy interest protected by s. 8 of the Charter. In the modern era, a personal computer is often the repository of information that sits at the very core of personal privacy.

[40] The privacy interests engaged are significant. The Applicant’s computer was taken, in the absence of a lawful search warrant, and subjected to a forensic analysis that involved a cursory review of much of the computer’s contents, followed by a detailed review of certain items and categories of data culminating in a seizure of 7.5% of the data. While the extent of the intrusion into Mr. Ricciardi’s sphere of privacy is somewhat mitigated by the search protocol applied, I find that the mitigation does not significantly change the nature of the intrusion. Even with the protocol, the police reviewed much of the content of his computer. Moreover, the protocol itself was based at least in part on unlawfully obtained evidence.

[41] The Crown also argues that in view of the Applicant’s bail condition requiring that he reside with a surety, he was no longer using the bedroom at the apartment searched by police. This fact, according to the Crown, lowers the expectation of privacy to a degree. I do not agree. On the evidence before me, while Mr. Ricciardi was required to live with a surety, he never relinquished use of the bedroom at his mother’s apartment. Indeed, it appears that he had been staying there, notwithstanding the bail conditions. In any event, nothing prevents a person from having two bedrooms and the privacy interests relating to the computer search are not dependant on a finding that the computer was located in the bedroom.

[42] In my view, this line of inquiry also supports the exclusion of the computer evidence.

Societal Interest in Adjudication on the Merits

[43] There is no doubt that society has an interest in an adjudication of these serious charges on the merits. The evidence found on the computer is real and reliable evidence. Its admission will enhance the truth seeking function of the trial.

[44] The Crown advises that, apart from counts 21 and 22, the loss of this evidence will weaken the prosecution but not terminate it.

[45] As I understand it the computer evidence in large measure informs counts 21 and 22, which are the counts of attempt sexual assault and attempt kidnapping relating to the Craigslist ads. The computer contains evidence of the various ads posted by Mr. Ricciardi as well as a number of resumes sent to him by prospective applicants. The Crown theory is that Mr. Ricciardi was using these ads to lure women to fake “job interviews” where they would be kidnapped and/or sexually assaulted. None of these “job interviews” ever took place, though a number of women responded to the ads and a few attended locations for an interview. The termination of the prosecution in relation to these two counts is serious and weighs in favour of admission.

[46] In relation to the remaining counts, the Crown seeks to rely on the computer data as evidence of identity, intent and motive, as well as narrative. According to Appendix “C” of the Crown’s written submissions, the evidence on the computer will demonstrate Mr. Ricciardi’s attempts to purchase handcuffs and handguns. It will also show that he has an interest in rape fantasy and related sexual violence. Lastly, the evidence will show that hours after the F[…] attack, a search query for the phrase “Photos on How to Give a Knock Out Punch to the Face” was conducted from Mr. Ricciardi’s computer. While this evidence is important, the prosecution of the remaining counts remains viable even in the absence of the evidence.

[47] The seriousness of the offences is a factor that cuts both ways. While society has a heightened interest in the adjudication of serious charges on their merits, there is also an equally important societal interest in having police conduct that is beyond reproach, especially in serious cases.

[48] In my view, this line of inquiry tips in favour of inclusion.

Balancing of Lines of Inquiry

[49] Balancing all of the relevant factors, I am satisfied that the admission of the evidence from the computer would bring the administration of justice into disrepute. In cases where the first two lines of inquiry clearly favour exclusion, it will be the rare case where the third line of inquiry will swing the balance back towards admission. In this case, the third line of inquiry tips, at best, barely over the line towards inclusion. This is not the rare case where the third line of inquiry can compensate for the findings in relation to the first two lines of inquiry: see R. v. McGuffie at paras. 62-64.

[50] The evidence must be excluded.

(b) The Cell Phone Analysis

[51] The flaws in terms of the cell phone search are not as serious as the flaws identified in relation to the Applicant’s computer. The police seized the cell phone incident to arrest and then obtained a warrant to search its contents. They did not conduct a cursory search of the phone. The warrant to search the phone was also proper on its face and included a clear list of items to be searched for.

[52] However, in terms of grounds for believing that the phone would contain evidence of the offences under investigation, the affiant expressed a “hope” that the phone could contain evidence supportive of the charges.

[53] The absence of any objective basis to believe on reasonable and probable grounds that the cell phone would afford evidence of the offences under investigation renders the search nothing more than a fishing expedition. While I accept that the officer was open and honest in the ITO, where that openness and honesty reveals the complete absence of grounds, the breach is not made any less serious.

[54] In my view, the breach of Mr. Ricciardi’s s. 8 Charter rights in relation to the phone is very serious. The police were not even close to the constitutional mark.

[55] In terms of the impact on Mr. Ricciardi’s Charter-protected interests, I am satisfied that the search of a cell phone in the modern era is similar to, and in some cases indistinguishable, from the search of a personal computer: see R. v. Fearon, 2014 SCC 77 at para. 54.

[56] The convergence of technologies suggests that at some stage personal computers, cell phones, tablets, cars, fitness monitors, music players, etc., will become viewed as mere access points to the central cloud-based computer system that runs our lives. We are not there yet. Nonetheless, the search of a cell phone already engages a significant privacy interest as cell phones can be the repositories of vast amounts of personal information.

[57] In terms of the third line of inquiry, I understand that the Crown seeks to lead evidence of telephone contacts with two individuals involved with the sale of a firearm and one female complainant in relation to the Craigslist charges. The evidence is not central to the case. Nonetheless, I recognize that circumstantial cases are often built brick by brick and the prosecution’s case will be weakened by the absence of this evidence.

[58] Balancing all of the factors, I find that this is a closer call than the computer evidence. Nonetheless, in my view, the admission of this evidence would bring the administration of justice into disrepute.

[59] The cell phone evidence is excluded.

(c) The Handcuffs, Evidence Text, Observations of the Computer Screen and the Notes

[60] The handcuffs and the forensic evidence book were seized during the execution of the first warrant. The seizing officer seized both on the basis of suspicion. Neither item was sought under the warrant. The same officer also activated the laptop screen of the computer located in the bedroom and made certain observations. He had no authority to do so.

[61] In relation to the handcuffs, I am satisfied that there existed a strong objective basis for seizing the item under the plain view doctrine and/or s.489 of the Criminal Code. In the circumstances of this case, that conclusion seems inescapable notwithstanding the officer’s articulated suspicion.

[62] In relation to the forensic evidence textbook, in view of the items sought under the warrant, the officer had no lawful basis to open and peruse the book. In my view, the observation of the book title alone (without the highlighted passages discovered inside the text) would not objectively amount to reasonable grounds to seize the item. That said, the issue seems somewhat academic in the sense that the officer’s observation of the title and location of textbook, obtained during lawful search of the bedroom, would be admissible. As well, I am not certain that the highlighted passages contained inside the book are particularly relevant to the Crown’s case.

[63] The same does not apply to the observations of the computer screen once activated. The officer had no basis to activate the screen apart from curiosity. Those observations were manifestly outside the scope of the warrant and unlawful.

[64] The handwritten notes were found next to computer. However, they were not seized during the execution of the first warrant. Rather, they were seized following the execution of the second warrant used to seize the computer. That warrant did not survive the Garofoli analysis. Nonetheless, the officer who seized the notes was acting under what he believed to be a proper warrant that specifically authorized the seizure of the notes. As well, the evidentiary value of the notes is plain and obvious.

[65] Starting with the first line of inquiry, I do not find that the seizure of the handcuffs and textbook are a serious violation of the Applicant’s rights. The officer who conducted the seizure was lawfully placed when he made his observations. Ample grounds existed to seize the handcuffs under the plain view doctrine. The grounds to seize the textbook, in the absence of viewing its contents, fall short objectively by not by much.

[66] The activation of the computer screen is a serious violation as the officer had no basis whatsoever to do so.

[67] The seizure of the notes was based on a warrant that authorized their seizure. However, the warrant contained no grounds whatsoever supporting the seizure. This is a serious violation.

[68] In terms of the Charter-protected interests of the Applicant, I find that his interests were not seriously impacted by the seizures. The police were lawfully in his bedroom pursuant to the first warrant when the seizure of the handcuffs and textbook occurred. The search was not intrusive as the items were in the open. The police were authorized to search for certain items and that search would have permitted them look around the bedroom, indeed the entire apartment. The activation of the computer screen is problematic. However, the officer went no further than observing the icon relating to a Firearms Licence. While improper, the search was truly cursory. As for the notes, the warrant contained no grounds authorizing their seizure. However, the notes were in open view in the bedroom near the computer. Assuming the warrant did not authorize the seizure of the notes, they could readily have been seized under the plain view doctrine as their evidential value was manifestly apparent. The notes were not in a diary or personal log attracting a high expectation of privacy.

[69] Turning to the third line of inquiry, the evidence seized is real and reliable. The Crown’s case is not imperilled by the exclusion of these items but it will nonetheless be detrimentally impacted.

[70] Balancing all of the factors, I am of the view that the administration of justice would be brought into disrepute if I excluded the handcuffs, textbook and notes. They are admissible.

[71] I am of the view that observation made of the computer screen amounted to a more serious violation of Mr. Ricciardi’s privacy rights, therefore on a balance, I exclude the observations.

(d) The Rogers Cell Phone Records

[72] In the Garofoli Ruling, I found that the police failed to meet the reasonable and probable grounds standard in relation to the production order for the cell phone records. I also found that the cell phone records in question could have been obtained using a s. 492.2(2) telephone records order as discussed in R. v. Mahmood, 2011 ONCA 693. This type of order can be obtained on the lower standard of reasonable suspicion. In my Ruling, I found that the police could have satisfied this lower standard.

[73] In assessing the seriousness of the breach, I am guided by the Mahmood decision. The seriousness of the breach is significantly attenuated by the fact that the police could have lawfully obtained the information sought using a different process. The police chose to proceed using the more onerous form of a production order. They could have and indeed should have simply resorted to the telephone records order available at the time under s. 492.2(2). While the availability of lawful means to obtain evidence is a factor that can cut both ways in the s. 24(2) analysis, in my view, this is precisely the case where it cuts in favour of admissibility.

[74] In terms of the impact on the Applicant’s Charter-protected interests, in accordance with Mahmood, I find that cell phone records are generally not accorded a very high degree of privacy. They are commercial records held by a third party in a regulated industry. The records reveal numbers called by and calling the subscriber’s phone. They reveal time, date and general location of the calls/phone. They do not reveal the content of the private communications. Overall, the impact on the Applicant’s expectation of privacy is not significant.

[75] The records are reliable evidence. The Crown’s case will be impacted but not terminated by the loss of the evidence.

[76] On balance, I am satisfied that the exclusion of this evidence will bring the administration of justice into disrepute.

[77] The cell phone records are admissible.

Next Step

[78] I understand that there are some remaining issues that will need to be addressed in view of this Ruling. In particular, I understand that the Crown and defence are not ad idem on the admissibility of certain items of evidence discovered as a result of the evidence unlawfully obtained through the warrant process. This includes excerpts of the Applicant’s voluntary videotaped statement during which he is shown or confronted with items of evidence found during the unlawful searches, as well as viva voce evidence of certain witnesses whose names were only discovered as a result of the computer searches. I invite counsel to make these further submissions at our next appearance.

Justice J. Di Luca

Released: June 8, 2017

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ANTONIO RICCIARDI Applicant Reasons for ruling re: section 24(2) Justice J. Di Luca

Released: June 8, 2017