CITATION: R. v. Merritt, 2017 ONSC 366

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

DATE: 20170116

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Brian McGuire and Eric Taylor, for the Crown

Respondent

• and -

MELISSA MERRITT and CHRISTOPHER FATTORE

David Berg and Joel Hechter, for Melissa Merritt

Peter Zaduk and Daisy McCabe-Lokos, for Christopher Fattore

Applicants

HEARD: December 12, 13, 14 and 15, 2016 at Kitchener

RULING No. 6: Application to Exclude Evidence Obtained from Walmart and the CIBC (Pyramid III)

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.

TABLE OF CONTENTS

Para. No.

Introduction........................................................................................................ 1

Applicable Legal Principles.............................................................................. 11

Factual Matters................................................................................................ 14

The CCTV Video and Transaction Receipt from Walmart.............................. 15

Information Obtained by the Police From the CIBC Prior to Issuance of the Production Order..................................................................................................................... 28

Method of Proceeding...................................................................................... 47

The Reasonable Expectation of Privacy Issues................................................ 50

Analysis

The Role of PIPEDA..................................................................................... 70

The Significance of s. 487.013 of the Criminal Code as it Existed in 2013..... 86

The Application of the Totality of the Circumstances Test.............................. 93

The CCTV Footage................................................................................... 95

The Walmart Transaction Receipt and CIBC Account Information............ 116

The Subject Matter of the Search............................................................ 118

Interest in the Contents of the Information............................................... 128

Did Mr. Fattore have a Subjective Expectation of Privacy?...................... 129

Was Any Subjective Expectation of Privacy Objectively Reasonable?...... 134

Conclusion on the Totality of the Circumstances Test in Relation to the Transaction Record and the CIBC Account Information.............................................................. 159

The Validity and Severability of the Production Order

The Scope of the Production Order............................................................. 168

Framing the Issues..................................................................................... 170

Applicable Legal Principles......................................................................... 177

Conclusions and Analysis

Does the ITO Support the Production Order?.............................................. 186

Severability................................................................................................. 217

Conclusion.................................................................................................. 230

Introduction

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

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

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

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

[5] This ruling deals with the admissibility of the following items of evidence:

1. closed circuit television (CCTV) footage showing Christopher Fattore purchasing a pair of running shoes at a Walmart store on August 22, 2013;

2. the debit card transaction receipt from Walmart for the purchase of the shoes containing the last four digits of Mr. Fattore’s debit card number;

3. banking records from the Canadian Imperial Bank of Commerce (CIBC) relating to the debit card purchase of the running shoes but extending over a considerably longer period of time than required to capture that transaction.

[6] The first two items of evidence were obtained by the police from Walmart by simple request and without obtaining a warrant or production order. The applicants submit that s. 8 of the Charter was violated because they, or at least Mr. Fattore, had a reasonable expectation of privacy (REP) in the CCTV footage and the transaction receipt. The Crown takes the position that the applicants had no such REP, that consequently there was no search and that a warrant was not required.

[7] With respect to the third item of evidence, the applicants challenge the production order used to obtain the banking records on s. 8 grounds. The applicants submit that the information to obtain (ITO) the production order has both facial and subfacial defects and is not capable of supporting the production order. At a minimum, the applicants submit that both the ITO and the production order itself are overbroad. Due to the manner in which the production order is drafted the applicants submit that, if there are any “good” parts of the production order, they cannot be severed from the “bad” parts.

[8] Crown counsel submit that the ITO is capable of supporting the production order to the CIBC in relation to the records for the purchase of the shoes and for a reasonable period of time surrounding that transaction. However, the Crown agrees that the production order is overbroad in ordering the production of banking records going as far back as July 18, 2013. It is the Crown’s position that the good parts of the production order are severable from the bad parts and that the CIBC records relating to the purchase of the shoes fall within the surviving part of the production order.

[9] There is an additional significant preliminary issue raised in relation to the production order to the CIBC. The ITO for the production order refers to information about Mr. Fattore’s bank account number, transit number and debit card number that were obtained from the CIBC prior to issuance of the production order by means of a law enforcement request. The applicants submit that this constitutes a separate violation of s. 8 of the Charter and that the information obtained in that manner must be excised from the ITO for the production order, leaving the ITO fatally deficient.

[10] The Crown takes the position that, applying the totality of the circumstances test, the applicants had no REP in the information the CIBC provided pursuant to the law enforcement request. Crown counsel stress the non-revealing and limited nature of the information provided. They also emphasize the context. The limited information was provided to the police to assist in obtaining a production order. Crown counsel submit that these factors, in combination, affect the balancing of privacy interests and societal interests in law enforcement that are part of the totality of the circumstances test for a REP.

Applicable Legal Principles

[11] In Ruling No. 4 (R. v. Merritt, 2017 ONSC 80) I dealt with the test to identify a REP and the law with respect to the review of ITOs, search warrants and production orders. I set out various legal principles of general application there. I will not repeat them here but will add to or build upon them in resolving the issues that arise as part of this grouping of applications.

[12] The overarching general proposition that emerges from a review of the governing authorities is that whether a s. 8 claimant has a REP is to be determined applying the “totality of the circumstances” test: R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, [1993] S.C.J. No. 97; R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, [1996] S.C.J. No. 11; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Marakah, 2016 ONCA 542, [2016] O.J. No. 3738.

[13] Pursuant to the totality of the circumstances test the court must determine, inter alia, whether a s. 8 claimant had a subjective expectation of privacy in the subject matter in question and whether any such expectation was objectively reasonable.

Factual Matters

[14] Two agreed statements of fact were filed in connection with these applications. In addition I heard from two witnesses called by the applicants and one called by the Crown. Neither of the applicants testified. I will make reference to the agreed facts and to the evidence to the extent necessary as I deal with the particular issues raised.

The CCTV Video and Transaction Receipt from Walmart

[15] By way of background, on August 29, 2013 the police seized several bags of garbage set out for collection in front of the residence of the accused. I found in Ruling No. 5 (R. v. Merritt, 2017 ONSC 81) that the garbage had been abandoned.

[16] Inside the garbage bags the police located a pair of size 12 “Athletic Works” brand running shoes which appeared to be new. There were hairs and fibres on the shoes which the police thought might be matched to hairs and fibres at the crime scene.

[17] On August 30, 2013 Det. Derek Rice went to the Walmart store located at 9455 Mississauga Road in Brampton. That store was close to the applicants’ residence. He saw that the store sold the same brand of shoes and, after speaking to a clerk who used the “stock keeping unit” number (SKU #) to check inventory, learned that only one pair of size 12 Athletic Works shoes had been sold in the previous two months. That sale was made during the week of August 17 to 23, 2013. Det. Rice spoke to the store manager and learned who the police should speak to to access CCTV footage from the store.

[18] On September 3, 2013 Cst. John Hillie returned to the Walmart and spoke with two security supervisors. They used the store’s electronic inventory system and an electronic transaction system to pinpoint the sale of the size 12 Athletic Works shoes as occurring on August 22, 2013 at 9:28:27 p.m. That was the evening before Caleb Harrison was found dead.

[19] It was determined which cashier terminal was involved in the sale and that the purchase was made by means of a debit card with an expiry date of “17/02”. The last four numbers of the debit card were “7167”.

[20] The CCTV footage of the purchase was located and viewed by Cst. Hillie. He recognized Mr. Fattore as the person who purchased the shoes. By backtracking on the video Cst. Hillie saw that Mr. Fattore entered the store at 9:21:00 p.m. on August 22, 2013.

[21] Cst. Hillie requested copies of the CCTV footage and the transaction receipt and they were provided to him. He also asked if the store personnel could determine whether Mr. Fattore had used the debit card to make any other purchases in the store. He was told that was not possible with only the last four numbers of the debit card being known.

[22] A copy of the transaction record provided to Cst. Hillie is included in the application record. It is a small slip of paper that contains many numbers. It refers to what I would infer to be a store number. It indicates that the purchase was of footwear for $15.00 plus tax for a total of $16.95. It indicates that a debit card linked to a chequing account was tendered to complete the purchase. The name of the bank is not provided. Twelve asterisks then appear, followed by the numbers “7167”. Mr. Fattore’s name does not appear anywhere on the transaction receipt.

[23] The evidence establishes that the Walmart store had signs near the entrance and exit doors to the store and in the shoe department, indicating that the store used “closed circuit televisions” and “digital recordings”. The signs in part stated: “These provide the evidence we need to prosecute criminal offences which may also be shared with law enforcement and other security organizations”. In addition, I have been provided with photographs showing television monitors installed in prominent locations within the store where shoppers can see themselves and others around them on live video.

[24] A copy of Walmart’s privacy policy is Exhibit 1 on this application. This policy indicates that customer information may be disclosed in various circumstances, including “when otherwise required or permitted by law”. At page 4 the policy states: “Data from in-store security cameras may also be provided to law enforcement upon written request”. There is no evidence that the police request in this case was ever put into writing.

[25] Caroline Mostyn, Walmart’s Assistant General Counsel, testified that the privacy policy was in place in 2013. The policy is uploaded to the “Walmart.ca” website. It is available to anyone viewing the webpage. She was not aware of its availability in any other place or form. It is not on bills or documents issued to customers. Customers would have to seek the privacy policy out. She was unaware whether a customer shopping online would have to agree to the policy.

[26] Ms. Mostyn was asked what Walmart meant by “permitted by law” as it appears in the privacy policy. She testified those words would permit the release of information pursuant to a warrant, production order or subpoena. She also agreed that it would permit release of information where a customer had no privacy interest in the information. Ms. Mostyn confirmed that the debit transaction record, which she referred to as a “journal entry”, contained no personal information and that its release to the police was not prevented by Walmart’s privacy policy.

[27] Ms. Mostyn agreed that the privacy policy stated that Walmart does not use CCTV images to identify customers personally. The tenor of her evidence was that this referred to marketing activity.

Information Obtained by the Police From the CIBC Prior to Issuance of the Production Order

[28] On September 3, 2013 Cst. Wade Neal was tasked to attempt to determine the banking information related to the purchase of the shoes. Cst. Neal made inquiries of a number of banks. He provided the banks with Mr. Fattore’s full name and the last four numbers of the debit card. He learned from Ms. Lee Jaremey, a corporate security employee at CIBC, that Mr. Fattore had a chequing account with that bank. A debit card ending in 7167 was associated to that account. Ms. Jaremey disclosed the full debit card number, the bank account number and that the account had been opened in Nova Scotia. The transit number of the branch in Nova Scotia was also provided. It is common ground that the bank understood the information was being provided to the police to assist them in obtaining a production order directing the CIBC to produce information sought in an ongoing criminal investigation.

[29] Cst. Aaron Meisner was the affiant for the ITO related to the production order (ITO #12). He also personally contacted Ms. Jaremey and confirmed the information Cst. Neal had received. Cst. Meisner made reference to the information he received from the CIBC in ITO #12. He also made reference to the CCTV footage and to the transaction receipt received from Walmart.

[30] Cst. Meisner also learned from Ms. Jaremey that a bank card would be required at any of the over the counter locations and ABM locations owned by the CIBC, and that such transactions are tracked through “PRM reports” kept by the bank.

[31] Ms. Catherine Chin-Quee is a Senior Advisory Consultant in the Privacy Office of the CIBC. Counsel for the applicants called her to introduce copies of the bank’s privacy policy. Two policies were tendered. The first (Exhibit 2) was in effect March 1, 2010. The second (Exhibit 3) was in effect September 1, 2013. Ms. Chin-Quee explained that when a customer opens an account they are provided with a brochure containing the privacy policy. The policy is also available online. The application or agreement the customer signs upon opening a “product” with the bank contains a brief reference to the policy.

[32] Counsel for the applicants directed Ms. Chin-Quee to the definition of “personal information” at p. 1 of the 2013 policy. That portion of the privacy policy includes “account numbers” within that definition. Ms. Chin-Quee testified that this information was included in the policy in order to comply with the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (PIPEDA). She testified that as there is no applicable Ontario privacy legislation PIPEDA is the governing statutory authority the bank is required to comply with. She testified, in essence, that there are several places in the privacy policy where the CIBC explains to customers the circumstances in which their personal information may be released by the bank in compliance with PIPEDA. In general terms, the policy refers to circumstances in which the bank will be “permitted” or “required” by law to do so.

[33] In cross-examination by Crown counsel it became apparent that the privacy policy that was in place in July 2009, when Mr. Fattore opened his bank account, was not before the court. It was that policy that would have been provided to Mr. Fattore. Ms. Chin-Quee said she had not been asked to look at the 2009 policy and she was not familiar with it. When asked if the policy was similar in 2009 she replied that she could not say.

[34] Ms. Chin-Quee explained that it is not part of her function to deal with law enforcement. That is handled by the Corporate Security section of the bank. However, as she understood the privacy policy, there was nothing in it which prevented Corporate Security from confirming the existence of an account and debit card for the police to assist the police in obtaining a production order. It was her understanding that the CIBC did not need a customer’s consent to provide such basic information to the police pursuant to PIPEDA. She could not speak to whether that understanding extended to the provision of the account number itself.

[35] Crown counsel called the current Director of Corporate Security for the CIBC, Mr. Mark Vandergraaf, to give evidence. Mr. Vandergraaf had 30 years of experience with the Royal Canadian Mounted Police (RCMP) prior to taking on his current position.

[36] Mr. Vandergraaf explained that when the police are seeking a production order they contact the “Intake Department” within Corporate Security. The police generally call to “confirm” information. Any subsequent production order that is received is dealt with by the “Third Party Demand Department”. He said the CIBC applies its internal policy pursuant to guidelines developed by the Bank Crimes Prevention and Investigation Office (BCPIO). The BCPIO is not part of the CIBC. It is a national banking association supported by various banks and financial institutions.

[37] It quickly became apparent from Mr. Vandergraaf’s evidence that how banks handle law enforcement requests has undergone change between 2013, when this investigation took place, and today. Mr. Vandergraaf made reference to the Supreme Court of Canada decision in Spencer in this regard. It also became apparent that some of those changes are in relation to whether the bank will provide certain information to the police or only confirm information the police already have.

[38] Meaning no disrespect to Mr. Vandergraaf, aspects of his evidence were unclear or uncertain in relation to some of the things that are important in the circumstances of this case. I attribute this to the changing privacy environment due to court decisions and some uncertainty about PIPEDA. I point out that in Spencer Cromwell J. found, at paras. 61-62, that there was a degree of circularity in trying to use PIPEDA to determine whether there was a reasonable expectation of privacy. I will come back to that theme later.

[39] What is clear from Mr. Vandergraaf’s evidence is that confirmation or information will only be provided after the bank confirms that the request is being made by an active member of law enforcement involved in an investigation. Once that is established the bank will share “tombstone” information such as name, date of birth, that the person has an account, address, the account number and the transit number. Mr. Vandergraaf then said that while the entire account number would have been provided in 2013 it would not be provided today. However, as I understood his evidence, if the police had that information today the bank will confirm it. Transit numbers would also not currently be provided but would be confirmed. They may have been provided in 2013. Asked what the bank would do today if the police had a name and the last four digits of a debit card number there was less clarity. As I understood Mr. Vandergraaf’s evidence he said the bank would confirm that the individual had an account but “may not” confirm the full account number. That information would have been provided in 2013.

[40] In cross-examination Mr. Vandergraaf further qualified his answer by saying that in 2013 the bank would have provided the balance of the debit card number if given the cards last four digits but would not have given the bank account number. Yet in re-examination he seemed to say that it was possible that in 2013 the bank account number as well as the debit card number would have been provided pursuant to the bank’s policy.

[41] In fairness to Mr. Vandergraaf, who I do not mean to be critical of in any way, he assumed his position with the CIBC after the events I am dealing with took place. However, he explained that at the time of these events he routinely dealt with the CIBC and other financial institutions in his role with the RCMP.

[42] Mr. Vandergraaf testified that if the bank is provided with only a name that will often be sufficient for the bank to determine whether that person has an account with the bank. However, this will be affected by how common the name is. The name and the last four digits of a debit card number would be sufficient. He said that it is helpful to those employees who are answering third party demands to have more information. For example, he mentioned that having the transit number in a production order helps the third party demand section to locate the account and fulfill the production order. It seems, therefore, that if the intake department provides certain account number information to the police for the purpose of obtaining a production order that information passes through the police and the issuing justice of the peace to assist another department of the bank in satisfying any production order that is issued.

[43] I also observe that Ms. Chin-Quee explained that even if someone had an account number and a transit number that would not be sufficient to allow them to gain access to an account or to information in an account. To gain such access a person would need a bank card and/or would have to answer a series of questions designed to protect the privacy of account holders.

[44] As I will explain below, evidence such as that I have just described is not determinative of whether a REP exists in relation to the account number or other information the CIBC provided to Csts. Neal and Meisner in 2013. It is, however, part of what must be taken into account in applying the totality of the circumstances test.

[45] The degree of uncertainty and lack of clarity in how private organizations respond to law enforcement requests for basic information and the apparent reasons for that, also provide context. A somewhat similar example is found in Spencer. There Cromwell J. referred to what could and could not be gleaned from the contractual arrangements and privacy policies in that case, as well as PIPEDA, in determining whether the appellant had a REP in subscriber information associated with computer usage at a particular Internet Protocol (IP) address which the police obtained from an internet service provider (ISP) without a warrant.

[46] I have not been provided with a copy of any agreements between Mr. Fattore and the CIBC that were entered into when he opened his account or obtained his debit card. Crown counsel made reference to their availability but counsel for the applicants chose not to tender them in evidence.

Method of Proceeding

[47] I will deal first with the REP issues that arise in relation to the police obtaining the CCTV footage and the transaction receipt from Walmart and the account number and related information from the CIBC. While the same legal test applies in relation to each of these three matters and there is some overlap, there are also important differences. Those differences are related to the nature of the information and to the various aspects of informational privacy that arise in relation to these three items of evidence. This complicated the presentation of the submissions of counsel and it renders a concise analysis difficult.

[48] I will start by outlining the applicants’ submissions on the REP in overview. I will then extract two distinct issues related to the application of PIPEDA and the impact of ss. 487.013 and 487.014 of the Criminal Code, as they existed in 2013, on the REP analysis. When and how these legislative provisions affect the REP analysis must be resolved before the question of whether the applicants had a REP in respect of each of the three items of evidence at issue can be determined. In order to make my final determination I will explain how I have applied the totality of the circumstances test in relation to each of the three items of evidence.

[49] I will deal with the validity of ITO #12 and the severability of the resulting production order as a separate matter later.

The Reasonable Expectation of Privacy Issues

[50] Ms. McCabe-Lokos presented all arguments on behalf of the applicants. While I have referred to the applicants, the focus was on Mr. Fattore. Ms. Merritt was not captured on video and the debit card and bank account were Mr. Fattore’s. No one submits that Ms. Merritt had a REP in the three items of evidence in question.

[51] Ms. McCabe-Lokos relies heavily on R. v. Spencer. She structured her submissions to conform to the approach taken by Cromwell J. in Spencer. She submits that, as in Spencer, identifying the subject matter of the search shows that we are concerned with informational privacy. She points out that at para. 34 of Spencer the court referred to previously having understood informational privacy as confidentiality and control of the use of information. I would add that at para. 34 Cromwell J. used those terms in reference to “intimate information about oneself”.

[52] In Spencer, Cromwell J. went on to develop the notion of anonymity as privacy, something previously discussed by Doherty J.A. in R. v. Ward (2012), 2012 ONCA 660, 112 O.R. (3d) 321 (C.A.). Both of those cases dealt with whether there was a REP in subscriber information which the police obtained from an ISP in order to link persons to child pornography. At para. 50 of Spencer Cromwell J. explained that when the police request subscriber information in such circumstances they are engaging “the anonymity aspect of the informational privacy interest by attempting to link the suspect with anonymously undertaken online activities”. It is those other anonymous activities which engage significant privacy interests. As indicated in Spencer, a person’s internet activity can reveal intimate details about their preferences and choices and reveal core biographical information about them. In such cases it is the connection that is made between the person and their internet activity by the disruption of their anonymity that invades their privacy. Thus the question of the significance of anonymity to a particular situation can be critical in determining whether someone has a REP in information sought by the state.

[53] Ms. McCabe-Lokos emphasizes different aspects of informational privacy in relation to the three items of evidence in issue here. With respect to the CCTV footage she relies primarily on anonymity, although some reference is also made to loss of control over release of the information.

[54] She submits that CCTV is ubiquitous and that if the state is permitted free access to it without a warrant the police will be able to effectively conscript private businesses into conducting surveillance as if they were state agents. She refers to a phenomenon described in the academic literature on privacy as “system creep”. She submits that the fact the video here only shows Mr. Fattore buying shoes, something which she agrees is not particularly private in nature, should not be the focus. Rather, she submits that such CCTV footage could show people purchasing more private items, such as condoms, personal medicinal products or adult diapers, for example.

[55] Counsel submits that Spencer mandates that a broad and functional approach should be taken when determining the subject matter of the search, the first of four categories of relevant considerations examined in Spencer: see paras. 18, 30-31. She submits that doing so here demonstrates that the CCTV footage in this case is about more than purchasing shoes. She submits that in combination with the transaction record and banking information it shows Mr. Fattore’s whereabouts and how he chooses to make payment by debit. It reveals where he opened his bank account and some things about his choices and preferences in banking. Therefore, considerations specific to Mr. Fattore, and more general considerations about the private things routine access to police video might show, demonstrate that the anonymity aspect of privacy is engaged in relation to the police obtaining the CCTV footage in this case.

[56] Counsel also submits that the fact that the recorded activities were carried out in public should not matter. In that regard she referred to R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527, [1992] S.C.J. No. 16, at paras. 70-71. At para. 70 La Forest J. spoke of an individual having a REP in his movements as well as his communications. At para. 71 La Forest J. quoted from a journal article commenting that systemic observation in public places can destroy a sense of freedom.

[57] In a similar vein, counsel relies on R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, [1990] S.C.J. No. 118 for the proposition that exposing your activities to strangers (common gaming activities in a hotel room) does not erode a REP.

[58] With respect to the transaction receipt from Walmart and the account numbers provided by the CIBC, counsel emphasizes confidentiality and control of the release of information as the primary aspects of informational privacy that are implicated. In terms of both of these interests counsel relies heavily on PIPEDA and refers to the privacy policies of Walmart and the CIBC. Reference is also made to ss. 487.013 and 487.014 of the Criminal Code as they existed in 2013.

[59] Counsel relies on R. v. Dyment, 1998 CanLII 769 (SCC), [1988] 2 S.C.R. 417, [1998] S.C.J. No. 82, at para. 22, for the proposition that there are many circumstances in which a person may reveal information to a third party but in the expectation that it will remain confidential to the persons to whom it was provided and be used only for the purpose for which it was divulged.

[60] Counsel submits that one of the ways in which PIPEDA and the corresponding privacy policies are of significance is that they inform a reasonable person that there is an expectation of privacy in the personal information businesses collect.

[61] Great emphasis was placed on PIPEDA for other reasons. Counsel submits that pursuant to s. 7(3)(c.1)(ii) of PIPEDA “personal information” may only be disclosed to the police when they have identified their “lawful authority” to obtain the information. This brings into question what is meant by “lawful authority” in s. 7(3)(c.1)(ii) of PIPEDA. A central feature of counsel’s argument is that a simple request is insufficient and that, consequently, the police did not have lawful authority here. Counsel points to passages in Spencer, which I will refer to below, that she contends support this important feature of her argument.

[62] Ms. McCabe-Lokos also places considerable reliance on s. 487.013(1) of the Criminal Code. That section, as it existed in 2013, provided that a justice or judge may issue a production order requiring a financial institution to produce the account number of a named person or the name of a person whose account number is specified, the status and type of account, and the date on which it was opened or closed. Pursuant to ss. (2) the production order could also require the financial institution to produce the person’s date of birth and past and present addresses. Pursuant to s. 487.013(4), before such a production order could issue a justice or judge was required to be satisfied on an ex parte application under oath and in writing that there were “reasonable grounds to suspect” that an offence had been or would be committed, that the information would assist the investigation of the offence and that the institution, person or entity subject to the order had possession or control of the information.

[63] Ms. McCabe-Lokos submits that the enactment of s. 487.013 of the Criminal Code, which received Royal Assent on March 29, 2004, demonstrates that Parliament has determined that there is a REP in the very type of information that the CIBC provided to the police in this case pursuant to a simple law enforcement request.

[64] Ms. McCabe-Lokos referred to excerpts from Debates of the Senate (Hansard), 37th Parl., 3rd Sess., No. 141 (18 February 2004) at pp. 263-265 (Hon. Wilfred P. Moore) and to Robin Mackay and Margaret Smith, Law and Government Division, Parliament, “Bill C-13: An Act to Amend the Criminal Code (Capital Markets Fraud and Evidence Gathering)”, Legislative Summary LS-468E (16 February 2004), to support her submission that Mr. Fattore had a REP in the account numbers and other types of information referred to in s. 487.013 of the Criminal Code. While comments from these sources describe such information as being subject to a lower expectation of privacy than more detailed financial records, justifying their production on the lower standard of reasonable suspicion, counsel submits that this is nonetheless strong evidence that Mr. Fattore had a REP in such information.

[65] Mr. McGuire responded to the applicants’ submissions in relation to the CCTV footage and transaction record from Walmart. Mr. Taylor responded to the applicants’ submissions concerning information provided by the CIBC. Both made reference to PIPEDA and submitted that its only relevance is to inform aspects of the totality of the circumstances test. The Crown takes the same position in respect of s. 487.013 of the Criminal Code. Mr. Taylor submits it is but one factor to consider in determining whether a REP has been established.

[66] The Crown contends that the applicants’ submissions misunderstand and misapply Spencer. Mr. Taylor submits that, properly read, Spencer interprets PIPEDA as permitting the release of personal information to the police pursuant to a simple request in circumstances where there is no REP. What is required to constitute “lawful authority” pursuant to PIPEDA will depend on determining first whether there is a REP based on the totality of the circumstances.

[67] Mr. Taylor submits that s. 487.013 must be read together with s. 487.014 Read together, those sections support the conclusion that it is lawful for the police to request and for third parties to provide information without a production order in circumstances where there is no REP. I will set out the relevant portion of s. 487.014 later in my analysis.

[68] Mr. McGuire submits that the applicants are inviting me to make the same mistake the Nova Scotia Court of Appeal found in R. v. Chehil, 2009 NSCA 111, 248 C.C.C. (3d) 370 was made by the trial judge in that case. There the trial judge held, in essence, that PIPEDA gave rise to a REP in information the police obtained about an airline passenger from WestJet. The Nova Scotia court of appeal held that whether a REP existed could only be determined on the basis of the totality of the circumstances test.

[69] Crown counsel submit that when the totality of the circumstances test is applied in respect of each of the three items of evidence in issue here I should conclude that the applicants had no REP in any of the information that was gathered. Various additional submissions were made in support of Crown counsel’s position on the outcome of the totality of the circumstances test to each of the three situations.

Analysis

The Role of PIPEDA

[70] Before turning to the totality of the circumstances test it is helpful to examine how PIPEDA should factor into the resolution of the REP issues.

[71] Speaking generally, PIPEDA regulates the collection and disclosure of personal information gathered by businesses and organizations. Pursuant to s. 2(1), “personal information means information about an identifiable individual”. Of significance, PIPEDA specifies when an organization or entity may release personal information without the knowledge or consent of the person whose personal information is in issue. Section 5(3) provides: “An organization may collect, use or disclose personal information only for purposes that a reasonable person would consider appropriate in the circumstances.”

[72] Disclosure without consent in the circumstances of the present case is governed by s. 7(3) of PIPEDA. The particular provision that is the focus of attention here is s. 7(3)(c.1)(ii), which reads as follows:

Disclosure without knowledge or consent

(3) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is

(c.1) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that

(ii) the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law. [Emphasis added]

[73] The applicants have focused on the meaning of “lawful authority”. Reduced to its most elementary form, the applicants’ argument is that because in Spencer, at para. 65, Cromwell J. said that the police were not entitled to obtain subscriber information from the ISP by means of a simple request, a simple request cannot constitute “lawful authority” within the meaning of s. 7(3)(c.1)(ii) of PIPEDA. As the information in this case was obtained by means of a simple request it was obtained in contravention of PIPEDA. On the basis of this analysis the applicants submit that PIPEDA assists in a significant way in establishing that they had a REP in the information in question.

[74] I am persuaded by Mr. Taylor’s submission that the applicants’ argument is fatally flawed because it fails to recognize that by the time Cromwell J. held in Spencer that the police were not entitled to obtain the subscriber information pursuant to a simple request, he had already determined that Mr. Spencer had a REP in the information sought.

[75] As Mr. Taylor points out, in Spencer the Crown advanced arguments that the provisions of PIPEDA I have referred to, and s. 487.014 of the Criminal Code, each provided the police with additional powers to obtain the information sought. In the paragraphs of Spencer the applicants rely on, Cromwell J. was explaining, amongst other things, why he did not agree with that submission. I point out that no similar submission is made by the Crown in the present case.

[76] The confusion in the applicants’ submission seems to me to be rooted in para. 65 of Spencer. That paragraph must be read very carefully. Before returning to para. 65, I would point out that in the immediately preceding paragraphs Cromwell J. dealt with the contract and privacy policy of the ISP providing the information to the police in that case and also with the statutory framework of PIPEDA.

[77] At para. 60 Cromwell J. found that the contract and privacy policy were not of much help because they allowed for the disclosure of personal information where “permitted” or “required by law”, something which in turn depended on an analysis of PIPEDA. The same can be said of the privacy policies in this case. He ended para. 60 and introduced his consideration of PIPEDA by stating: “The statutory framework provided by PIPEDA is not much more illuminating”.

[78] From paras. 61 to 63 Cromwell J. examined PIPEDA with a focus on s. 7(3)(c.1)(ii). At para. 61 he concluded that the provisions of PIPEDA were not of much help in resolving the issue because, “They lead us in a circle”. At para. 62 he said:

Section 7(3)(c.1)(ii) allows for disclosure without consent to a government institution where that institution has identified its lawful authority to obtain the information. But the issue is whether there was such lawful authority which in turn depends in part on whether there was a reasonable expectation of privacy with respect to the subscriber information. PIPEDA thus cannot be used as a factor to weigh against the existence of a reasonable expectation of privacy since the proper interpretation of the relevant provision itself depends on whether such a reasonable expectation of privacy exists. [Emphasis in original.]

In the first part of this passage Cromwell J. identifies the circularity problem. In the last sentence in the passage he rejects the Crown’s submission in that case that PIPEDA could actually serve as a basis for a lawful request.

[79] At para. 63 Cromwell J. explains why he reached a different conclusion on this point than Doherty J.A. did in Ward. In the course of doing so he made the following statement, which I conclude, has contributed to the confusion that I believe is behind the applicants’ submissions before me. Referring to the factors which underlay the contrary decision in Ward, Cromwell J. said:

While these considerations are certainly relevant from a policy perspective, they cannot override the clear statutory language of s. 7(3)(c.1)(ii) of PIPEDA, which permits disclosure only if a request is made by a government institution with "lawful authority" to request the disclosure. It is reasonable to expect that an organization bound by PIPEDA will respect its statutory obligations with respect to personal information. The Court of Appeal in Ward held that s. 7(3)(c.1)(ii) must be read in light of s. 5(3), which states that "[a]n organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances". This rule of "reasonable disclosure" was used as a basis to invoke considerations such as allowing ISPs to cooperate with the police and preventing serious crimes in the interpretation of PIPEDA. Section 5(3) is a guiding principle that underpins the interpretation of the various provisions of PIPEDA. It does not allow for a departure from the clear requirement that a requesting government institution possess "lawful authority" and so does not resolve the essential circularity of using s. 7(3)(c.1)(ii) as a factor in determining whether a reasonable expectation of privacy exists.

[80] Against this background I return to the words of Cromwell J. at para. 65 of Spencer:

The overall impression created by these terms is that disclosure at the request of the police would be made only where required or permitted by law. Such disclosure is only permitted by PIPEDA in accordance with the exception in s. 7, which in this case would require the requesting police to have "lawful authority" to request the disclosure. For reasons that I will set out in the next section, this request had no lawful authority in the sense that while the police could ask, they had no authority to compel compliance with that request. [Emphasis added.]

[81] The “next section”, which starts at para. 68, is titled “Was the Search Lawful?” In the absence of a REP there could be no search. This question only arose because Cromwell J. had already determined in the previous portion of his judgment, at para. 66, based on the totality of circumstances, that there was a REP in that case.

[82] In the “next section” of his judgment Cromwell J. went on to explain why he rejected the Crown’s submission that s. 487.014(1) of the Criminal Code in combination with s. 7(3)(c.1)(ii) of PIPEDA rendered the search lawful. In the course of doing so he said, at para. 71:

The reference to "lawful authority" in s. 7(3)(c.1)(ii) must mean something other than a "subpoena or warrant". "Lawful authority" may include several things. It may refer to the common law authority of the police to ask questions relating to matters that are not subject to a reasonable expectation of privacy. It may refer to the authority of police to conduct warrantless searches under exigent circumstances or where authorized by a reasonable law. [Emphasis added.]

[83] When all of this is considered together it is apparent that the conclusion reached in Spencer that the police request did not constitute lawful authority was premised on the fact that Cromwell J. had already concluded that there was a REP in the information at issue in that case. In the passages that at first blush seem to support the applicants’ submission, the court was actually stating that the police needed a lawful authority beyond a simple request because Mr. Spencer had a REP based on the totality of the circumstances. Para. 71 reflects that the common law power and duty of the police to investigate crime constitutes “lawful authority” under PIPEDA unless more is required due to the existence of a REP. Properly understood Spencer is in fact inconsistent with one of the main thrusts of the applicants’ submission.

[84] The end result is that Spencer determined that neither s. 7(3)(c.1)(ii) of PIPEDA nor s. 487.014, either alone or in combination, provide the police with additional lawful authority to obtain personal information by request in circumstances where there is a REP. I agree with the Crown’s submission that Spencer holds that s. 7(3)(c.1)(ii) is simply declaratory of the common law interpreted in a manner consistent with s. 8 of the Charter: If a REP exists something more than a request by the police will be required. However, if there is no REP, an entity which releases personal information to the police in the course of an investigation will be in compliance with PIPEDA.

[85] It follows that I agree with the Crown’s submission that the existence of the statutory scheme in PIPEDA and the resultant privacy policies of Walmart and the CIBC are simply factors to be taken into account in the application of the totality of the circumstances test.

The Significance of s. 487.013 of the Criminal Code as it Existed in 2013

[86] I will deal with this issue separately to avoid confusion in the application of the totality of the circumstances test which follows. I do this because, as the applicants’ argument was presented, they take the position that the enactment of s. 487.013 is determinative of the REP question in relation to the information provided to the police by the CIBC prior to the issuance of the production order. Their position, in essence, is that by enacting s. 487.013 Parliament has decided that an individual has a REP in account numbers and the other types of basic account information referred to in that section.

[87] I do not agree with this submission. While the fact that Parliament has legislated in this area in a manner that indicates there is a privacy interest in such information is an important factor to be taken into account during the totality of the circumstances analysis, I do not think it can be regarded as determinative of the REP question. At least two considerations support this conclusion.

[88] First, I agree with Mr. Taylor’s submission that s. 487.013 must be read together with s. 487.014. These provisions were enacted at the same time. Section 487.014 (1) of the Criminal Code, as it existed in 2013, read as follows:

487.014 (1) For greater certainty, no production order is necessary for a peace officer or public officer enforcing or administering this or any other Act of Parliament to ask a person to voluntarily provide to the officer documents, data or information that the person is not prohibited by law from disclosing.

Nothing in the legislative scheme in the Criminal Code or in Bill C-13, which enacted ss. 487.013 and 487.014, specifically prohibits the disclosure of the type of account number and related information released here. Nor have I been directed to any other legislation that could affect the release of such information to the police except PIPEDA. However, as mentioned in the last section, Spencer establishes that under PIPEDA a simple request by the police can constitute “lawful authority” for the release of “personal information” in circumstances where there is no REP.

[89] In order to avoid the same form of circularity problem described in Spencer in relation to PIPEDA when considering ss. 487.013 and 487.014 of the Criminal Code, it seems to me that whether a REP exists must be determined first. The very existence of s. 487.014 signals this. If there is no REP, something which will depend on a consideration of the totality of the circumstances, then s. 487.014(1) makes it clear that no production order is required. Clearly s. 487.014(1) is referring to s. 487.013. This approach is consistent with the approach to the statutory scheme of PIPEDA taken in Spencer.

[90] Second, Parliament does not set minimum constitutional standards by means of legislation. Those standards flow from the Charter itself, as interpreted by the courts. While Parliament cannot enact valid legislation which fails to meet minimal constitutional standards, absent the application of s. 1 of the Charter, Parliament can certainly legislate more generously or adopt a higher stand. That, however, does not alter the constitutional standard. In addition I note that it was held in R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 115, that legislation is only one factor to be considered in determining whether an expectation of privacy is objectively reasonable.

[91] Having regard to these basic principles, and given that the provisions under consideration here do not prohibit the release of information of the type released by the CIBC without a production order, the correct approach is to start with the totality of the circumstances test. The consistent message in all of the Supreme Court of Canada and Court of Appeal authorities I have referred to is that whether there is a REP will depend on context and a multi-factorial assessment of the particular circumstances of a given case. However, in considering the totality of the circumstances test the approach taken by Parliament in relation to a particular type or kind of information will obviously be important and informative. In this regard, both ss. 487.013 and 487.014 are significant.

[92] This is the approach I propose to take.

The Application of the Totality of the Circumstances Test

[93] An examination of Edwards, Tessling, Patrick, Spencer and Marakah demonstrates that the factors to be taken into account will vary depending on the nature of the case. However, the four categories of factors approach was applied recently in Spencer at para. 18. These categories of factors were also considered in Patrick at para. 27. In Patrick, Binnie J. set out seven subcategories of factors that must be assessed when considering whether an expectation of privacy is objectively reasonable. I will generally follow the framework for analysis set out at para. 27 of Patrick, which is as follows:

1. What was the nature or subject matter of the evidence gathered by the police?

2. Did the appellant have a direct interest in the contents?

3. Did the appellant have a subjective expectation of privacy in the informational content of the garbage?

4. If so, was the expectation objectively reasonable? In this respect, regard must be had to:

a. the place where the alleged "search" occurred; in particular, did the police trespass on the appellant's property and, if so, what is the impact of such a finding on the privacy analysis?

b. whether the informational content of the subject matter was in public view;

c. whether the informational content of the subject matter had been abandoned;

d. whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?

e. whether the police technique was intrusive in relation to the privacy interest;

f. whether the use of this evidence gathering technique was itself objectively unreasonable;

g. whether the informational content exposed any intimate details of the appellant's lifestyle, or information of a biographic nature. [Emphasis in original.]

[94] Substantially the same factors were described in Tessling, at para. 32.

The CCTV Footage

[95] It is important at the outset to identify the subject matter of the search in order to understand whether, and if so how, privacy interests are impacted by the search: Patrick, at para. 39; Spencer, at para. 22.

[96] The Agreed Statement of Fact, at para. 7, describes the CCTV footage as showing Mr. Fattore walking up to a cashier with the shoes in his hand and then leaving the store with a gray plastic shopping bag. At an earlier point the video shows Mr. Fattore entering the store. The times of these events are recorded on the video.

[97] In my respectful view, the subject matter of the search is a video recording of Mr. Fattore purchasing shoes and nothing more. As previously mentioned, Ms. McCabe-Lokos urges me to consider hypothetical situations in which someone is seen shopping for more personal items that would be more revealing of personal choices or preferences of a more private nature. But that is not this case. As Binnie J. seemed to emphasize in Tessling, at paras. 28 and 29 in particular, the decision about where to draw the line in relation to a REP should focus on the nature and quality of the information that was actually captured and collected by the police and not upon the theoretical. In this respect he found that Abella J.A. (as she then was) erred by taking a view of the ramifications for privacy of the police technique used in that case that extended beyond what was actually obtained by the police through the use of that technique. Binnie J. indicated that should the technology used by the police in Tessling improve to the point where there was a greater intrusion on personal privacy the issue could be reconsidered at a later time. This is an indication that I should focus on what the CCTV footage actually shows and then consider what the privacy implications that flow from that are.

[98] Here the video does not show Mr. Fattore doing anything that was of a private or revealing nature. The police were interested in determining whether he bought a pair of shoes and that is what the video shows. The police were not trying to use what can be seen on the video to look inside a more private space, such as a home, hotel room or backpack. Cases like Wong and R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 156, are, therefore, distinguishable. The police were interested in finding out what Mr. Fattore did in a large department store on one occasion, openly and in the presence of others.

[99] This is not a situation, like R. v. Wise, where La Forest J. was concerned about ongoing indiscriminate state surveillance in public places.

[100] I do not see that anonymity is of much significance in the circumstances here. This is not a situation like Spencer where the police had a significant amount of information about internet activity which revealed a great deal about personal preferences and choices and just needed a link to tie that highly private information to persons who accessed the internet using a particular IP address. As Mr. McGuire put it: “There is no mask of anonymity at Walmart.”

[101] Here Mr. Fattore went shoe shopping in a large department store. The police did not have any other information that in combination with the video footage would reveal much about Mr. Fattore, besides that he purchased shoes. Adding in that he did so by debit card really tells us almost nothing about anything connected to a biographical core of personal information or intimate choices or preferences.

[102] The second factor can be dealt with quickly. Mr. Fattore obviously did have a direct interest in the information, which consisted of images of his own activities.

[103] Turning to whether Mr. Fattore had a subjective expectation of privacy in the informational content of the CCTV footage, I point out that I have no evidence from Mr. Fattore because he did not testify.

[104] In many situations it will be easy to infer the existence of a subjective expectation of privacy from the nature of the information in question or the nature of the relationship the s. 8 claimant has with the party who releases the information. However, I am not prepared to infer a subjective expectation of privacy here. Mr. Fattore went shopping in a department store. He knowingly exposed his activity to public view or at least to the view of the segment of the public shopping at Walmart. As Binnie J. observed at para. 40 of Tessling, a person can have no REP in what they knowingly expose to the public or to a section of the public.

[105] Signs were prominently posted in Walmart advising that customers were being subjected to video recording which could be released to the authorities. Video monitors showed customers that they were subject to CCTV. There was no relationship between Mr. Fattore and Walmart that was of a confidential nature.

[106] About the only thing I can identify which could contribute to a subjective expectation of privacy is the fact that Walmart was subject to the provisions of PIPEDA. However, I have no evidence that Mr. Fattore considered that and the extent to which PIPEDA applied is unclear. I also have no evidence Mr. Fattore was aware of Walmart’s privacy policy. Given the other factors I have identified, I am not able to infer the existence of a subjective expectation of privacy.

[107] Assuming that Mr. Fattore had a subjective expectation of privacy in the CCTV footage, I am not satisfied that such expectation was objectively reasonable.

[108] Mr. McGuire referred to a number of cases in which it was held that the police did not invade a reasonable expectation of privacy by photographing or videotaping an accused in a public place: R. v. Lebeau (1988), 1998 CanLII 14635 (ON SC), 41 C.C.C. (3d) 163, [1998] O.J. No. 51 (C. A.); R. v. Shortreed (1990), 1990 CanLII 10962 (ON CA), 54 C.C.C. (3d) 292, [1990] O. J. No. 145 (C.A.); Brown v. Durham Regional Police (1998), 1998 CanLII 7198 (ON CA), 43 O.R. (3d) 223, [1998] O.J. No. 5274 (C.A.); R. v. Elzin (1992), 1993 CanLII 3860 (QC CA), 82 C.C.C. (3d) 455 (Que. C.A.); R. v. Bryntwick, 2002 CanLII 10941 (ON SC), [2002] O.J. No. 3618 (S.C.J.). While these cases are instructive, the circumstances were somewhat different than the situation I am dealing with. I have taken these cases into account but I do not see them as controlling or determinative.

[109] Turning to the sub-factors on objective reasonableness identified in Patrick at para. 27, I repeat that the CCTV footage was recorded in a large department store where customers were on notice about it and its possible release.

[110] There was no trespass on any territorial privacy interest of Mr. Fattore. The informational content, purchasing shoes, was on public view. In these circumstances that particular informational content was abandoned. Many members of the public saw Mr. Fattore engaged in that activity.

[111] This is not a situation, like R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, [1990] S.C.J. No. 2, where the accused thought he was having a private conversation. Mr. Fattore was shopping in public and was warned about video surveillance. Consequently, what the court said in Duarte, at paras. 31-32, about the risk of others disclosing their observations being no answer to other privacy concerns arising from the making of a permanent electronic record of what occurred, is not applicable. The context in Duarte was completely different.

[112] The information the police seized was in the hands of a third party. While there was a privacy policy and Walmart was subject to PIPEDA the nature of the relationship between Mr. Fattore and Walmart was not the type of relationship in which confidentiality is generally expected.

[113] Nor would a reasonable and well informed observer expect the CCTV footage of the purchase of shoes to be kept from the police. As noted by Sopinka J. in Plant, at para. 19, and by Binnie J. in Tessling, at paras. 17-18, the community wants privacy but also protection. An appropriate balance must be struck between the need to protect privacy and yet permit effective law enforcement.

[114] Turning to the last of the sub-factors, I have already said that the informational content of the video did not expose any intimate details about Mr. Fattore’s lifestyle or information of a core biographical nature.

[115] Based on a consideration of the totality of the circumstances I find that Mr. Fattore had no REP in the CCTV footage Walmart provided to the police. Neither of the applicants do.

The Walmart Transaction Receipt and CIBC Account Information

[116] While these items of evidence were obtained by the police from different sources the information in both cases relates to debit card purchase transactions. Due to this linking feature, to the financial nature of the information and to the fact that I view some of the additional cases that I intend to refer to as applicable to both the transaction receipt and the banking information, it is convenient to combine some aspects of the totality of the circumstances analysis in respect of these items. I recognize that the CIBC information potentially relates to more than one transaction.

[117] Before getting to the common aspects of the analysis it is important to examine the nature of what was obtained by the police from Walmart and the CIBC. I will generally follow the outline for analysis suggested in Patrick.

The Subject Matter of the Search

[118] I will deal first with the transaction record obtained from Walmart.

[119] What the police obtained was a copy of the record Walmart created for its own business purposes to record the sale and provide its customer with a receipt in relation to the transaction. I have no evidence about whether Mr. Fattore was also provided with some other form of store receipt.

[120] While Mr. Fattore obviously chose to disclose all of his debit card information to Walmart so that Walmart would receive payment for the shoes, it is apparent from viewing the transaction record that not all of that information was provided to the police when they received a copy of the transaction record.

[121] Based on a review of the transaction record I infer it is designed not to be revealing of private information relating to a purchase. Mr. Fattore’s name does not appear on the document. Asterisks replace most of the numbers of Mr. Fattore’s debit card on the transaction receipt. Only the last four numbers were recorded. The last four numbers were so meaningless in terms of identifying anything about Mr. Fattore’s habits or personal choices that Walmart could not determine whether the card had been used to make other purchases in the store. Consequently, the transaction record revealed almost nothing about Mr. Fattore. While not determinative, I note that Ms. Mostyn did not consider that it contained private information or that its release contravened Walmart’s privacy policy.

[122] Here there was anonymity in the document obtained by the police. The disclosure of the document and its acquisition by the police did not identity Mr. Fattore. He was identified by Cst. Hillie who recognized him on the CCTV footage.

[123] What is of more relevance is whether obtaining the document divulged or exposed information about Mr. Fattore that was revealing of personal preferences or choices of a private nature or of core biographical information of the sort an individual would wish to keep private from the state. It seems to me that it did not.

[124] Viewed alone, the transaction record showed only that someone purchased footwear valued at $15.00 plus tax from a particular store by means of a debit card with an expiry date of “17/02” and with a deliberately obscured debit card number linked to a chequing account at an unnamed bank. When put together with the CCTV footage it can be determined that Mr. Fattore made the purchase. As I have already found, that was something Mr. Fattore did in public view with no mask of anonymity.

[125] I turn now to the information provided by the CIBC. It consisted of confirming that the debit card used in the transaction was linked to a chequing account Mr. Fattore had with the CIBC. The full debit card and bank account number were provided as well as the transit number related to the branch in Nova Scotia where the account was located. No information about account activity of any kind was provided prior to the issuance of the production order. When the bank provided the information it knew the information was going to be used by the police to obtain a production order. Based on the evidence of Mr. Vandergraaf, the account and transit number were not required by the bank to locate the account but including it in the production order would assist the section of the bank that would receive the order. This may explain why the bank appears to have provided the police with more information than the police asked for. Based on para. 13 of the Agreed Statement of Fact, Cst. Neal was tasked with “determining the bank and the account number associated with Mr. Fattore’s debit card ending in 7167 and an expiry date of 17/02”.

[126] While the information released from the bank reveals more about Mr. Fattore than did the transaction receipt, what was revealed was still quite limited.

[127] One of the concerns with respect to things like account numbers is that they can be used nefariously to perpetrate crimes based on identity fraud. Here the information was being provided to the police investigating a homicide. There was virtually no risk the information would be misused in one of the ways which is most concerning viewed from the perspective of maintaining confidentiality and control over such information. I note that in Royal Bank of Canada v. Trang, 2016 SCC 50, at para. 46, the court held that the identity of the party seeking disclosure and the purpose for doing so is part of the relevant context. Someone who seeks information “to exercise an established legal right” will be viewed differently than someone “who is merely curious or seeks the information for nefarious purposes”.

Interest in the Contents of the Information

[128] Clearly Mr. Fattore had a direct interest in the contents of the information received by the police. The transaction record related to his purchase and the banking information was related to his account and debit card.

Did Mr. Fattore have a Subjective Expectation of Privacy?

[129] It is very easy to infer a subjective expectation of privacy in relation to the information obtained by the police from the CIBC; less so in relation to the transaction receipt the police obtained from Walmart.

[130] In the absence of some evidence from Mr. Fattore I am not able to infer a subjective expectation of privacy in relation to the transaction record obtained from Walmart. The record in question contains nothing of a truly confidential nature. It is the type of record that millions of shoppers discard in public places on a daily basis. I have already mentioned that the particular transaction record here does not contain all of the information that Mr. Fattore agreed to provide to Walmart to complete the purchase. No doubt Mr. Fattore would expect Walmart not to reveal all of the numbers on his debit card or more detailed information that might have been gleaned from this electronic transaction. That did not happen here. I also note that the relationship between a customer and a department store is fundamentally different than the relationship between a customer and their bank when it comes to confidentiality.

[131] In reaching my conclusion I have taken PIPEDA and Walmart’s privacy policy into account. What is most significant is the nature of the transaction - the public purchase of running shoes – and particularly the non-revealing nature of the transaction receipt.

[132] I turn to the information provided by the CIBC. In terms of banking information, a relationship between a customer and their bank is generally regarded as one in which the bank will treat most of the information they gather in relation to the customer as confidential. This is particularly so when it comes to details of loans, income and financial transactions. As already mentioned, it is important that account numbers and similar information be treated with confidentiality to prevent identity fraud and other nefarious activity. However, an individual may also wish to prevent such information from falling into the hands of creditors, spouses, business associates and tax authorities.

[133] It is apparent in this case that Mr. Fattore entered into a contractual relationship with the bank that referred to a privacy policy, although neither the account agreement nor the original privacy policy are in evidence. It is generally understood in society today that large businesses have privacy policies, that they are updated from time to time and are available on the internet. I proceed on the basis that Mr. Fattore did have a subjective expectation of privacy in relation to the type of information the police obtained from the CIBC without a production order.

Was Any Subjective Expectation of Privacy Objectively Reasonable?

[134] Running down the list of factors in the fourth category of the Patrick framework for analysis I would say the following. First, the place where the information was obtained from had nothing to do with Mr. Fattore’s territorial privacy. Second, in contrast to the CCTV footage, the information in relation to the transaction record and the banking information was not in public view. Third, there can be no suggestion here that the information was abandoned. Fourth, while the information was already in the hands of third parties, there was a relationship of confidentiality between Mr. Fattore and the CIBC, but not with Walmart, beyond what was provided for in PIPEDA and Walmart’s privacy policy.

[135] The fifth and sixth subcategories (items 4(e) and (f) at para. 27 of Patrick) are whether the technique used by the police was intrusive in relation to the privacy interest and whether the use of the technique was objectively reasonable.

[136] As Bateman J.A. said at para. 48 of R. v. Chehil, 2009 NSCA 111 when considering these subcategories in relation to passenger travel information that the police obtained from WestJet, the police have a general duty to investigate crime. She also noted that the police in that case were involved in a “point in time” inquiry about a particular flight. They were not engaged in widespread or ongoing monitoring of ticketing information or passenger manifests. They were not engaged in the type of ongoing indiscriminate monitoring or recording that raises grave privacy concerns: Wise; Duarte.

[137] The situation here is similar. The police were conducting a point in time investigation. They were trying to determine who purchased shoes similar to those found in the garbage at the Merritt and Fattore residence. They sought transaction records in relation to the purchase of the shoes. They were not able to obtain information from Walmart about any other purchases. Their purpose in contacting the bank was to obtain basic account information that would allow them to obtain a production order. It appears the bank revealed more than was asked for.

[138] The technique employed by the police in this case was to ask questions and do the legwork necessary to determine who purchased the shoes and to obtain a production order. No new or unusual technology was employed by the police. There was nothing about the technique that poses a risk to privacy interests generally or that renders this standard police work objectively unreasonable. The evidence of the witnesses who testified demonstrates that both Walmart and the CIBC were striving to comply with PIPEDA and their privacy policies and that the CIBC had a structure in place to provide the police only with the information the CIBC believed the police were lawfully entitled to receive at the time. There is no evidence the police were not acting in good faith in the steps which they took. Consequently, the technique employed does not involve any particularly intrusive activity.

[139] In terms of evaluating reasonableness, one must keep in mind the need for balance between society’s interest in privacy and effective law enforcement. Here the police were not employing any sort of unusual or novel technique. They were asking questions in order to collect evidence (the transaction receipt) and to obtain a production order (the CIBC account information).

[140] The final consideration under the Patrick framework in relation to whether an expectation of privacy is objectively reasonable is whether the informational content of the subject matter of the search exposed any intimate details of Mr. Fattore’s lifestyle or information of a core biographical nature.

[141] As many of the cases I have referred to state, not everything that a person wishes to keep confidential is protected by s. 8. As Bateman J.A. noted in Chehil, at para. 50: “The use of the modifier ‘intimate’ requires that the information be deeply personal or inherently private”. In Plant, at para. 20, Sopinka J. spoke of s. 8 protecting a “biographical core of personal information” which individuals in a free society would wish to “control from dissemination to the state”. In Spencer the court again spoke of information which reveals intimate personal preferences, choices and activities of a highly personal and private nature.

[142] In Chehil, at paras. 12 and 50, Bateman J.A. also made the point, however, that not all information which falls outside the “biographical core” category will be exempt from the protection of s. 8 of the Charter. She cited R. v. A.M., 2008 SCC 19, at paras. 67-68. There Binnie J. extended such protection to what he described as “specific and meaningful information, intended to be private, and concealed in an enclosed space in which the accused had a continuing expectation of privacy”. In A.M., at para. 68, Binnie J. also observed that intercepted private communications are protected although they do not necessarily contain core biographical information.

[143] In A.M. Binnie J. explained that the “biographical core” analysis was developed in cases where the information sought by the police was already in the hands of third parties or beyond the control of the s. 8 claimant at the time the police obtained it. In Plant the record that contained the information was generated by a public utility company based on the appellant’s electricity consumption. In Tessling the escape of heat energy from the appellant’s home was beyond his control.

[144] In the case I am dealing with the transaction record was generated by Walmart from the information provided by Mr. Fattore to purchase shoes. As I have already said, it did not contain core biographical information or information about intimate details of Mr. Fattore’s lifestyle. It did not reveal the full details of his debit card number or banking arrangements. It also seems to me that it does not fall within the purview of what Binnie J. had in mind in A.M. as protected information falling outside of the category of biographical core information.

[145] The information obtained by the police from the CIBC is not so easily dealt with. I say this for a number of reasons. First, in Schreiber v. Canada (Attorney General), 1998 CanLII 828 (SCC), [1998] 1 S.C.R. 841, [1998] S.C.J. No. 42 (Schreiber), at para. 22, Lamer C.J. said that it was clear that the “personal financial records” at issue in that case, which had been obtained from a bank, fell within the “biographical core” category described by Sopinka J. in Plant. However, it is a fair inference from the facts in Schreiber that what was obtained without a warrant in that case were detailed records of banking transactions and not just account numbers and identifiers. In R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 47-48, the court again held that private financial records constituted biographical core information. However, in Royal Bank of Canada v. Trang, at para. 36, the court said that “the degree of sensitivity of specific financial information is a contextual determination”.

[146] Second, in R. v. Lillico, 1994 CanLII 7548 (ON SC), [1994] O.J. No. 4521, 92 C.C.C. (3d) 90 (Ont. Ct. (Gen. Div.)), McCombs J. found that, while banks have a general duty to protect the confidentiality of financial records, disclosure to the police of limited general information does not threaten the biographical core of personal information described in Plant. Consequently, the accused in that case was found to have no REP in the information the police received from the bank without a production order. While the decision predates many of the cases I have referred to, McCombs J. undertook a careful analysis that is quite similar to the approach suggested in the subsequent authorities.

[147] In Lillico a complainant had given a $100,000 cheque to the accused for shares in a franchised business. The business never opened and Mr. Lillico failed to account for the complainant’s funds. Upon inquiry by the investigating police Mr. Lillico’s bank confirmed that the complainant’s cheque had been deposited in Mr. Lillico’s account and that there was considerable activity in the account thereafter.

[148] The trial decision in Lillico was upheld by the Court of Appeal: R. v. Lillico, [1999] O.J. No. 95. At para. 2 the court said in respect of the s. 8 issue: “We see no error in the trial judge’s reasons or his conclusion on this issue”.

[149] While the judgments in Lillico are now somewhat dated, the issue that arose was very similar to the one I am dealing with and the analysis undertaken by McCombs J. and upheld by our Court of Appeal was conducted pursuant to cases such as Dyment and Plant, which remain good law.

[150] Although the judgments in Lillico predate the enactment of PIPEDA and of ss. 487.013 and 487.014 of the Criminal Code, I am unable to distinguish them on that basis. As I have previously found, those statutory provisions are but factors to be taken into account in applying the totality of the circumstances test. Counsel have not provided me with any authority to demonstrate that the Court of Appeal’s judgment in Lillico has been limited or circumscribed by subsequent authority.

[151] While I do not view Lillico as dispositive of the entire REP issue, which I must decide applying the totality of the circumstances test, in terms of my assessment of the final consideration under the Patrick framework for analysis, Lillico is highly persuasive if not determinative authority.

[152] I also point out that Lillico was followed in the more recent case of R. v. Quinn, 2006 BCCA 255, 209 C.C.C. (3d) 278. In that case the police were investigating a fraud in which a series of cheques had been issued by an insurer. The police had the cancelled cheques. The name of the financial institution where the cheques were negotiated was stamped on the back of the cheques and the number of the account into which the funds were deposited was also written on the back of the cheques. The police called the financial institution where the cheques were negotiated to determine the identity of the account holder. The bank provided the police with the name of the accused, advised the police that the accused had sole signing authority on the account and that the bank was in possession of the evidence. The police made the inquiry to obtain account information as they intended to apply for a search warrant.

[153] The British Columbia Court of Appeal adopted the reasoning of McCombs J., as approved by the Court of Appeal for Ontario, to the effect that the release of this type of limited bank account information does not impinge on the biographical core of information that is protected by s. 8 of the Charter.

[154] Taking these authorities into consideration, I am of the view that the account information the police obtained in this case did not reveal intimate details of Mr. Fattore’s lifestyle or information of a core biographical nature. As Ms. Chin-Quee testified, having the account numbers and transit numbers, without more, would not allow the police or anyone else to access the detailed account information.

[155] The situation I am dealing with here is much different than that considered by the Newfoundland Supreme Court – Trial Division in R. v. Eddy, [1994] N.J. No. 142. In that case the police searched the accused’s vehicle and located a kilogram of hashish. The accused was arrested and the vehicle was impounded. Two days later the police searched the vehicle again and located and examined a bank book. A police officer made notes of various transactions recorded in the bank book, including about a transaction on the day the hashish was located.

[156] The bank book contained an account number but not the name of the account holder. A police officer called the bank and gave the bank manager the account number. The bank manager identified the accused as the account holder and confirmed that there was a withdrawal of $2,550 from the account on the day the police found the hashish.

[157] In concluding that the accused had a REP in the information provided to the police by the bank manager, Puddester J. said the following, at para. 175:

It is one thing to have an unidentified bank book containing records of deposits and withdrawals and revealing financial information when it was not linked to a name. The linkage of a name to that information creates at once the intimate relationship between that information and the particular individual, which is the essence of the privacy interest.

[158] These observations by Puddester J. made in 1994 are remarkably similar to those made by Cromwell J. in Spencer in 2014. They illustrate an application of the anonymity interest in relation to informational privacy. In Spencer and in Eddy the police already had a considerable amount of information that was revealing of the intimate details of someone’s lifestyle and personal choices. When the police obtained the subscriber information in Spencer and the account holder information in Eddy, those intimate details became linked to internet users at a specific address in Spencer or to a specific individual in Eddy. I have already found that nothing similar occurred in this case.

Conclusion on the Totality of the Circumstances Test in Relation to the Transaction Record and the CIBC Account Information

[159] Taking all of the considerations I have referred to into account, I am of the view that Mr. Fattore had no REP in the transaction record from Walmart or the limited account information the police obtained from the CIBC for the purpose of obtaining a production order.

[160] Based on a full consideration of the circumstances discussed above, there is no basis upon which a REP can be claimed in the transaction receipt. It revealed almost nothing. I am unable to infer that Mr. Fattore had a subjective expectation of privacy in that record, and an assessment of relevant considerations shows any such expectation would be unreasonable.

[161] In terms of the account number information the police obtained from the CIBC, I see this as a close call. A number of considerations favour finding a REP. First, individuals generally wish to keep their account numbers confidential. There is a danger such information can be used for nefarious purposes. Customers expect their banks to treat such information as confidential. In addition, in Schreiber the Supreme Court of Canada described financial records obtained from a bank as falling within biographical core information.

[162] Second, by enacting ss. 487.013 and 487.014 Parliament signalled that there is a privacy interest in such information that may rise to the level of a REP. I would point to Eddy as an example of such a case. I would add that allowing for the issuance of a production order on a standard of reasonable suspicion rather than reasonable grounds to believe, as s. 487.013 as it existed in 2013 did, is not inconsistent with the potential existence of a REP: see Kang-Brown.

[163] I have given significant weight to these factors but I conclude they are outweighed by countervailing considerations that point in the other direction in the particular circumstances of this case.

[164] In Schreiber, despite finding that the financial records in that case fell within the category of biographical core information, the court concluded that there was no REP in the records obtained by the police. At para. 22, Lamer C.J. noted that other factors in the totality of the circumstances analysis, such as where the records were obtained from and how they were obtained, were equally important factors. As the records in that case were obtained in Switzerland in a manner consistent with Swiss law, on balance the court found there was no REP.

[165] In the present case the “other factor”, which I conclude predominates and tips the balance against finding a REP, is my finding that the records revealed nothing of an intimate and little of a private nature. The account numbers, without more did not allow access to transaction records. To the extent account numbers are kept confidential due to concerns about nefarious or fraudulent activity, here they were being provided to the police for the purpose of obtaining a production order. I note that in Quinn, at paras. 90-91, the British Columbia Court of Appeal found this to be a relevant consideration. I also am of the view that it is a consideration a well informed and reasonable member of the community with an interest in the long term preservation of privacy interests would take into account, having regard to the need to balance privacy interests with society’s interest in effective law enforcement. In Royal Bank of Canada v. Trang the court said that the sensitivity of financial information is context specific.

[166] Lastly, and significantly, Lillico remains the law in this province. The circumstances in the case I am dealing with are very close to those in Lillico. As Lillico predates cases like Tessling and Patrick it is not surprising that the analysis does not follow precisely the same path. Yet it seems to me that the reasoning in Lillico follows substantially the same path, applying Plant. The Court of Appeal’s decision may not, strictly speaking, be binding on me as the facts here are not identical. However, they are so close that I consider Lillico to be very persuasive. I have explained why the fact that the enactment of PIPEDA and ss. 487.013 and 487.014 do not provide a basis for distinguishing Lillico.

[167] Based on a consideration of a totality of the circumstances I find that the applicants had no REP in the transaction receipt or account information in question.

The Validity and Severability of the Production Order

The Scope of the Production Order

[168] The production order was issued by a Justice of the Peace on September 6, 2013 based on an ITO sworn by Cst. Meisner on September 4, 2013. The first paragraph of the order directed the CIBC to produce copies of data and/or documents as listed in the order pertaining to a CIBC debit card with a specified number ending in 7167 that was attached to an account with a specified number. The period covered by the order was July 18, 2013 to September 3, 2013. As I will explain, the length of the time period covered by the production order is problematic.

[169] The net cast by the production order was also extremely broad. The records were to include opening application forms, signature cards, copies of cardholder identification documents used to open the account, as well as “copies of the account history and balances and bank statements and monthly statements on the account” for the entire time period. The list of items to be produced went on to include all transfers, cheques issued or deposited, any other accounts connected to or associated with the specified account, any “ABM” transaction records and location pertaining to the use of the debit card, any over the counter transaction records related to the card, “RPM” reports related to use of the card and video and images from ABM transactions. The production order does not refer to Mr. Fattore by name.

Framing the Issues

[170] The only evidence flowing from the production order to the CIBC which the Crown wants to introduce are those records which will confirm that it was Mr. Fattore who purchased the shoes. The Crown concedes that the production order is overbroad. It is the Crown’s position that the invalid parts of the production order can be severed off to preserve the part of the order pursuant to which the evidence the Crown wants to introduce was obtained.

[171] The applicants attack the ITO on both facial and sub facial grounds. They submit that the production order could not have issued based on the ITO. The applicants’ failure to succeed on the arguments I have already dealt with means that references to the CCTV footage and transaction receipt for the purchase of the shoes will not be edited out of ITO #12. Nor will the account number and account information provided by the CIBC be edited out. While this is an impediment to success of the applicants’ attack on ITO #12, the applicants maintain that the production order could not have issued even if that information is included in the ITO.

[172] In the alternative, the applicants submit that if I find that the ITO could support the issuance of a production order for the records the Crown wishes to introduce, on a proper application of the law the production order cannot and/or ought not to be severed. Therefore, the production order is invalid and the records the Crown wishes to introduce were obtained in violation of s. 8 of the Charter.

[173] By agreement, s. 24(2) of the Charter will not be considered until most of the s. 8 issues still to come in other pre-trial applications have been dealt with.

[174] One difficulty that presents itself is that while the Crown concedes the production order is overbroad, the applicants and the Crown do not agree on where the line should be drawn in the event parts of the order are found to be supported by the ITO. This flows from the fact that they do not agree on the nature of the reasons for the production order being overbroad. This could impact the availability of severance having regard to the nature of the test for severance, which I will refer to momentarily.

[175] The applicants take the position that the affiant made material omissions from the ITO which must have been deliberate. They also submit the affiant consciously structured the ITO in such a way that it amounted to a “smoke and mirrors” presentation to the Justice of the Peace, suggesting things that the affiant must have known could not be substantiated. The Crown, on the other hand, submits that the affiant was acting in good faith but “missed the mark” in the ITO.

[176] All of these issues are inter-related. I have decided that the best way to provide my reasons is to state my conclusions first, followed by reasons that will deal with the issues on an interrelated as opposed to segregated basis. I will do that after making brief reference to the applicable legal principles.

Applicable Legal Principles

[177] As mentioned, in Ruling No. 4 I set out the law applicable to the review process where an ITO and related search warrants or production orders are challenged pursuant to s. 8 of the Charter. I will not repeat that here. A particularly helpful case in the current context is R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148.

[178] Turning to the issue of severance, it has long been held that in some circumstances the “good” parts of a search warrant can be severed from the “bad” parts: R. v. Johnson and Franklin Wholesale Distributors Ltd., [1971] B.C.J. No. 632, (1971) 1971 CanLII 1177 (BC CA), 3 C.C.C. (2d) 484 (B.C.C.A.).

[179] In R. v. Patterson (1985), 1985 CanLII 167 (ON CA), 18 C.C.C. (3d) 137, [1985] O.J. No. 28, aff’d as R. v. Ackworth, 1987 CanLII 22 (SCC), [1987] 2 S.C.R. 291, Martin J.A. applied that case to sever a “basket clause” from a wiretap authorization after determining that the basket clause was so broad that it was invalid. It vested discretion in the police to determine whose private communications would be intercepted. In severing the clause Martin J.A. made the point, at p. 149, that none of the interceptions in that case depended upon the invalid basket clause. At pp. 149 to 150 Martin J.A. held:

In the present case, there is a clear line of demarcation between the good and the bad parts of the authorization; they are not interwoven. The offending paragraph is not vital to the part of the authorization relating to the interception of the private communications of named persons and its excision in the circumstances of this case does not subvert the policy of the legislation. In the present case, since all the interceptions were made pursuant to the valid part of the authorization, the necessity for separating evidence flowing from the valid and invalid parts does not arise. The “basket clause” was never resorted to, it generated no evidence, nor any derivative evidence.

[180] The above passage was adopted by the Supreme Court of Canada in R. v. Grabowski, 1985 CanLII 13 (SCC), [1985] 2 S.C.R. 434, [1985] S.C.J. No. 66, at paras. 58, 60. See also R. v. Munroe (1985), 19 C.C.C. (3d) 480, [1985] A.J. No. 1053 (C. A.).

[181] Based on Martin J.A.’s comments in Patterson there are two prerequisites to severance. First, the good and bad parts of the warrant or authorization must not be so “interwoven” that they cannot be easily separated. Second, severance must not subvert the policy of the legislation.

[182] The first requirement has been clarified in a number of subsequent cases. In Grabowski, at para. 61, the court indicated that there must be a “clear dividing line between the good and bad parts of the authorization” such that they are “actually separate authorizations given in the same order”.

[183] In R. v. Lachance, 1990 CanLII 53 (SCC), [1990] 2 S.C.R. 1490, [1990] S.C.J. No. 116, Sopinka J. held on behalf of the majority, at para. 20: “If the offending portion of an authorization can be severed and the remaining portion is sufficient to authorize the interceptions at issue, then the lawfulness, and hence admissibility, of the evidence is not affected.”

[184] In Lachance there was an issue as to whether the invalid clause of an authorization (clause 3(i)) could be separated from or had to be read as part of the valid clause (clause 5(h)) which supported the admissibility of the evidence. At para. 22 Sopinka J. agreed with the Ontario Court of Appeal that the clauses were severable. He quoted and adopted parts of the Court of Appeal’s judgment, found at (1988), 27 O.A.C. 45. I have excerpted below portions of what was quoted by Sopinka J. in that paragraph. The adopted passages were taken from p. 48 of the Court of Appeal’s judgment. The portion quoted by Sopinka J. that are particularly relevant here are as follows:

…[W]e believe that the decision will always depend upon a reading of the impugned clauses to determine whether they must be read together or whether they can reasonably be read independently. If the clauses can be read independently, then only the offending clause need be severed… With that done, it can then be determined whether the intercepted communications come within the purview of the remaining valid clauses of the authorization.

…Here, the impugned clauses do not have to be read together and only para. 3(i) need be deleted. When para. 3(i) is deleted, it can be seen that the intercepted calls come within the scope of the valid clause 5(h) and should not be excluded on this ground.

[185] There is much less written about what Martin J.A. meant when referring to subverting the policy of the legislation. I will have more to say about that below. A helpful case which canvasses most of the authorities and reflects on both aspects of Martin J.A.’s comments in Patterson is R. v. Sonne, 2012 ONSC 584, [2012] O.J. No. 6243, which I will also refer to below.

Conclusions and Analysis

Does the ITO Support the Production Order?

[186] I have reached the conclusion that, on its face and after making all necessary adjustments flowing from the subfacial attack, ITO #12 is sufficient to support a production order for the items of evidence the Crown wishes to have admitted. Specifically, I find that ITO #12 contains sufficient reliable evidence that might reasonably be believed, on the basis of which the authorizing justice could have concluded that a production order should be issued to the CIBC in relation to the debit transaction for the purchase of the shoes and for the account opening and account holder identity information.

[187] I am also of the view that the ITO contains sufficient reliable information such that a somewhat broader production order than just described could have issued to collect evidence in relation to debit purchases made in the time period immediately prior to the murder. The Crown submitted that a period of two weeks would be reasonable. The difficulty with that submission is that it is arbitrary because there is nothing in ITO #12 to support reasonable grounds for drawing the line at that particular point.

[188] The issue of precisely where to draw the line in this regard is largely academic. Since the Crown does not wish to tender evidence gathered in such a slightly expanded time frame, I need not decide precisely where to draw the line. However, as I will explain, I conclude that the ITO could support the conclusion that Ms. Merritt and Mr. Fattore deliberately left the purchase of the shoes at Walmart out of their police statements concerning their whereabouts and activities on August 22, 2013. In the totality of the circumstances here, the inference was also reasonably available that they may have left out the disclosure of other purchases that would afford evidence of the homicide. I say this having regard to what was said in R. v. CanadianOxy Chemicals Ltd. V. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743, [1998] S.C.J. No. 87, at paras. 15, 21-22 and Baron v. Canada, 1993 CanLII 154 (SCC), [1993 1 S.C.R. 416, [1993] S.C.J. No. 6, at paras. 48, 50. I referred to what was said in those authorities in Ruling No. 4, commencing at para. 92.

[189] In order to avoid drawing the line in an arbitrary manner, if I had to do so, I would extend the period to cover other transactions on August 22 and 23, 2013.

[190] I agree with the Crown’s concession that the ITO could not support the issuance of a production order going back to July 18 or extending past the date of the homicide to September 3, 2013. As to the former, my agreement with the Crown’s concession rests on both facial and subfacial considerations. As to the latter, it rests on facial considerations.

[191] Cst. Meisner’s basis for extending the reach of the production order back to July 18, 2016 depended primarily on observations by a witness, Donna MacCormack, of a small silver or light gray car. In her police statement she described such a vehicle as being parked in front of her home on July 18, 2013. Her home is located on the same street as the Harrison home where Caleb Harrison was found dead on August 23, 2013. Melissa Merritt’s mother owned a silver Honda. It is apparent from the ITO that the police were interested in seeing if they could connect Mr. Fattore to that vehicle on July 18, 2013. The ITO suggested that Mr. Fattore may have been using that vehicle to keep watch on the victim’s home prior to the homicide.

[192] At para. 73 of ITO #12 Cst. Meisner stated that Donna MacCormack saw the car “parked by Caleb’s house on July 18, 2013”. This is not accurate. The street is a crescent and Ms. MacCormack’s home is located more than 100 metres away from the Harrison home. The car was down the street and around the curve.

[193] Cst. Meisner included in para. 73 of ITO #12 that Donna MacCormack said the car she observed had tinted windows and some “flat black finish” on it as well. By the time Cst. Meisner swore the ITO the police had located the silver Honda previously owned by Ms. Merritt’s mother. The vehicle had been traded in on a new car subsequent to July 18. Significantly, the police were aware it did not have tinted windows or any flat black finish. It could not have been the car Ms. McCormack described. Cst. Meisner left that important information out of the ITO.

[194] Ms. MacCormack also told the police that she could not see who was driving the small gray car on July 18, 2013. While Cst. Meisner did not suggest otherwise in the ITO, he did not specifically mention this aspect of Ms. MacCormack’s statement.

[195] I am of the view that there were material omissions and a misstatement made in the ITO which had the potential to mislead the justice of the peace. When the ITO is adjusted on the review to render the record accurate the validity of the implicit suggestion that Ms. Merritt’s mother’s vehicle was being used to keep watch on the residence of Caleb Harrison is completely undermined.

[196] There are facial validity problems with this suggestion in the ITO as well. At p. 48 of ITO #12, included in Cst. Meisner’s grounds for believing the records to be produced would afford evidence of the offence, Cst. Meisner swore that the records will determine if Mr. Fattore was in the area of the Harrison residence on July 18, 2013 and assist in determining if he was using the small gray vehicle to monitor Caleb Harrison prior to the murder.

[197] The Crown concedes, and I agree, that there was no foundation in the ITO to support reasonable grounds in relation to such a statement. There was no information that Mr. Fattore was in the area or used his debit card that day, let alone that he used it in a manner that could associate him with the vehicle in question.

[198] Turning to the period after the murder, there is simply no basis to support reasonable grounds to believe that purchases that may have been made with the debit card after August 23, 2013 and up to September 3, 2013 would provide evidence of the offence. Aside from the gray car theory, the police theory advanced in the ITO was that there were grounds to think that the shoes were tied to the murder and that some form of weapon had been used to strike Caleb Harrison. The theory was that if Ms. Merritt and Mr. Fattore had failed to tell the police about going to Walmart to purchase the shoes, there was reason to believe they may have failed to reveal the purchase of something that was used as a weapon. Therefore, the examination of the debit card records around the time of the homicide should be ordered produced. There was no reasonable basis for extending this kind of reasoning to the post-offence time period.

[199] I turn now to the applicants’ submission that ITO #12 could not support the issuance of a production order for the purchase transaction for the shoes.

[200] Mr. Hechter commenced his oral submissions on this issue by referring to the shoes. He concedes that it is reasonable to infer that the shoes found in the garbage were the shoes purchased at Walmart on August 22, 2013. However, he submits it was not reasonable to infer that they had anything to do with the murder because they ended up in the garbage a short time later.

[201] He points out that the Justice of the Peace knew that the shoes cost only $16.95 and that the family was “bad with money” but had cash at the time due to an insurance settlement. Mr. Hechter submits that much more would be needed to turn those shoes into “murder sneakers”. He submits that seeing hairs and fibres on the shoes made no difference as there was no evidence that those hairs or fibres had been matched to hairs and fibres in Caleb Harrison’s home. Mr. Hechter points out that the ITO did not address potential alternative sources of hairs and fibres. He submits that neither the police nor the Justice of the Peace could ignore that there are many means by which hairs and fibres can be transferred. Mr. Hechter says that much in the ITO is premised on these being “murder sneakers” when that conclusion is not possible based on the ITO.

[202] In the ITO Cst. Meisner advised the issuing justice that Mr. Fattore told the police he had never been inside Caleb Harrison’s home. Mr. Hechter submits that this was part of the smoke and mirrors approach of Cst. Meisner and was only included in the ITO to invite the conclusion that Mr. Fattore was lying. If the shoes were not murder sneakers it did not matter that Mr. Fattore said he was never in the Harrison residence.

[203] Mr. Hechter also submits that the court must look closely at the assertion that Mr. Fattore did not tell the police he was in Walmart and purchased the sneakers. He submits that not mentioning Walmart could be an oversight and the court cannot conclude it was a deliberate omission. He further submits that in his police interviews Mr. Fattore made some reference to being in the Walmart plaza and that that should not have been left out of the ITO.

[204] In my respectful view, although Mr. Hechter’s submissions demonstrate that he is aware of the principles outlined by Watt J.A. in Nero, overall his submissions fail to respect them. First and foremost, the ITO must be considered as a whole. In addition, the fact that one or more items of information in the ITO may support more than one inference, or even an inference contrary to one not supportive of the requirements for issuance of the production order, is of no moment (Nero, at para. 71). The focus must remain on whether the ITO, considered as a whole, contains sufficient evidence that might reasonably be believed on the basis of which the production order could have issued. With respect, counsel’s submissions seek to segregate parts of the evidence and to overlook how, when considered together, the evidence in the ITO demonstrates that a production order could have issued, notwithstanding some competing inferences.

[205] The shoes were purchased the evening before the murder. They were found in the garbage just a week later. People may have many reasons to throw away new shoes, but it is unusual. Both Ms. Merritt and Mr. Fattore had given statements to the police in which they carefully detailed all of their activities on the evening of August 22, 2013. This included their being in the plaza where the Walmart store in question was located. They described attending at two fast food restaurants in that plaza with their children, but neither of them made any mention of entering Walmart or of Mr. Fattore buying the shoes he soon put in the garbage.

[206] Unfortunately, these details were not fully set out in the ITO. However, I am satisfied that there was enough information in the ITO to support the statement by Cst. Meisner, in the grounds portion of the ITO, that the applicants did not tell the police about the purchase at Walmart. In the circumstances, the inference was also available that it was deliberate.

[207] I have gone into more detail about what was and was not in the applicants’ police statements because, in my view, it refutes the applicants’ submission that Cst. Meisner’s assertion on this point was misleading. I agree with the Crown’s submission that if this point could be amplified it would assist the Crown and not the applicants. While it would have been better if Cst. Meisner provided more detail about the nature and contents of the applicants’ statements in the ITO, there is a basis in the ITO to support an inference that the applicants deliberately withheld the information. Considering the more detailed information that was not included in the ITO does not assist the applicants. It cannot be said that this statement in Cst. Meisner’s grounds was unsupportable, misleading or dependent on a material omission.

[208] The fact that there were hairs and fibres on the shoes that the police planned to have examined to see if they could be matched to the crime scene was also a relevant factor. At para. 54 of the ITO, Cst. Meisner advised the Justice of the Peace that due to the amount of dog hair in the victim’s bedroom forensic officers believed the perpetrator would have picked up such trace material. As mentioned, Mr. Fattore said he had never been inside the home.

[209] In my respectful view, the available inference that the applicants omitted reference to the purchase of the shoes the night before the homicide when they provided other details of their whereabouts is particularly significant. It was capable of constituting meaningful circumstantial evidence that these were indeed the “murder sneakers”, particularly when viewed in the context of the disposal of these new sneakers in the garbage shortly after the murder.

[210] In addition, as detailed in Ruling No. 4 in connection with a challenge to a search warrant and other production orders, I referred to the fairly extensive evidence that the applicants had a motive. That evidence is repeated in ITO #12. There was a history of a long and bitter custody and access dispute in relation to the two children Melissa Merritt and Caleb Harrison had together. The ITO set out that Melissa Merritt had previously abducted those children and breached her bail in relation to the abduction charges by attending at the Harrison home. At the time of Caleb Harrison’s death Melissa Merritt was still attempting to obtain an order for joint custody. She was to return the children to Caleb Harrison on the evening of August 23, 2013 following a period of extended summer access. I will not repeat all that I said in relation to the motive issue in Ruling No. 4. The evidence relevant to motive that was in the earlier ITOs was substantially repeated in ITO # 12.

[211] When all of this is considered together, and with the other evidence set out in ITO #12, I conclude the standard of reasonable grounds to believe that the records relating to the purchase of the shoes would afford evidence of the commission of the offence of murder is easily met. A production order for those records certainly could have issued on the basis of the ITO.

[212] In my view these same considerations, and in particular the available inference that the applicants chose not to tell the police about the purchase of the sneakers, would have permitted the issuance of a production order in relation to records for other transactions in close temporal proximity to the homicide. There were reasonable grounds to conclude that the applicants may have failed to disclose other relevant purchases. As I have already said, in order to avoid drawing the line arbitrarily, based on the inferences available from the ITO I would restrict this to the time frame immediately prior to the death of Caleb Harrison.

[213] Mr. Hector also submitted that an interview the police conducted with Melissa Merritt’s father, Michael Merritt, was presented in the ITO in an incomplete or misleading fashion in order to suggest that he may have been involved in the murder. Cst. Meisner swore in the ITO that during his interview Michael Merritt failed to account for his whereabouts after returning home from purchasing a new car at about 9:00 p.m. on August 22, 2013. However, It seems from a recording of that interview (no transcript is available) that the matter was brushed over by detective Rice, who was conducting the interview, in such a way that the information as presented in the ITO could be overstated.

[214] Mr. Hector also submits that Cst. Meisner suggested in the ITO that it was unusual that Michael Merritt had knowledge of where Caleb Harrison’s body was found in the Harrison home. Mr. Hector refers to the fact that another witness, Douglas Blackwell, revealed a couple of days later that he knew where the body had been found. Consequently, counsel submits that this information was “out there”.

[215] I have taken these submissions into account in reaching my overall conclusion that the ITO was capable of supporting the issuance of a production order to the degree and extent I have described.

[216] For completeness I should say that based on my Ruling No. 4 conclusion that the search warrant issued for the technological examination of the cell phone seized from Ms. Merritt on August 26, 2013 was invalid, I have excised para. 66 and the second unnumbered paragraph at p. 47, from ITO #12. At the moment I am of the view that doing so does not affect my conclusions. However, as Ruling No. 4 had not been released when the matter I am currently deciding was argued I invite counsel to make submissions on that issue should they wish to do so.

Severability

[217] I turn to the important question of severance. In my respectful view the production order that issued based on ITO #12 cannot be severed so as to preserve the order in relation to production of the records for the purchase of the shoes on August 22, 2013. I am of the view that permitting severance in the circumstances of this case would violate both of the governing principles articulated by Martin J.A. in Patterson and adopted by the Supreme Court of Canada in Grabowski.

[218] Dealing with the first principle, when the terms of the production order are examined, this clearly is not a situation where one or more clauses or sub-clauses can be identified and segregated for surgical removal. This is not a situation where the order effectively contains separate authorizations within the same order as described in Grabowski. Here the order directs the CIBC to produce all of the banking records for an approximately seven week period. While the order particularizes the records sought by type in a series of sub-clauses, the problem with the order does not lie in these descriptions as much as it does in the extensive time period. To be clear, there are some over-breadth problems related to those descriptions that could be solved by severing certain clauses. For example, the production order seeks over the counter and ABM transactions and associated video. However, it is the date range that is at the heart of the problem of over-breadth.

[219] The main operative clause, to which the various document describing sub-clauses are attached, specifies the production of all debit card records for the period beginning July 18 and ending September 3, 2013. The Crown wants me to remove time from each end of this period and to shave the production order down to a far shorter time focused on August 22, 2013. I am being asked to substantially rewrite what was authorized to be done. What the Crown is asking me to do is quite different and more extensive than what has been done in any of the cases I have been referred to where severance was granted.

[220] I also observe that this is not a situation, like Patterson, where there was no invasion of privacy occasioned by the “bad” parts of the order. Here the sole operative clause directed the bank to produce all of the records within the specified time frame. I have no evidence before me that the CIBC did not do so. Therefore, the bad parts of the production order have permitted a significant unauthorized interference with Mr. Fattore’s privacy interests which s. 8 of the Charter is designed to prevent.

[221] In these circumstances I am of the view that to rewrite the production order under the guise of severance would undermine the policy of the legislation, not to mention the Charter. The interference with a REP generally requires judicial preauthorization. No one suggests that Mr. Fattore did not have a REP in the records obtained pursuant to the production order or that judicial preauthorization was not required in the circumstances. Using severance to cut away most of the order to preserve the evidence the Crown wishes to introduce in circumstances where a considerable amount of private information was also obtained under the bad parts of the order, could encourage the police to take the same approach in the future.

[222] It seems to me that the important question to be answered in considering whether the policy of the legislation would be undermined by exercising my discretion to grant severance is whether there was an invasion of privacy occasioned by the bad parts of the production order that went significantly beyond the invasion of privacy authorized by the good parts of the order. If there was a significant additional invasion of privacy under the bad parts of the order then, whether evidence was obtained pursuant to the bad portion of the order or not, I am of the view that severance would generally run afoul of the “policy of the legislation”. The focus should not be on whether evidence was obtained but on whether an unauthorized invasion of privacy was occasioned by the bad parts of the order. I note that in Grabowski, at para. 62, the court noted, as did Martin J.A. in Patterson, that the offending provision was not used in any way. That is not the situation here.

[223] Whether severance is granted is discretionary. Consequently, there is probably some scope for the court to take the degree of any additional invasion of privacy into account in determining whether to grant the remedy. In the case I am dealing with the interference with Mr. Fattore’s REP crystalized at the point where the bank responded to the order. As that response would have resulted in the transmission of information that went far beyond what was properly supportable pursuant to ITO #12, I conclude there can be no doubt in this case that severance would undermine the policy of the legislation. It would undermine the pre-authorization process itself.

[224] The Crown submits that whether severance would undermine the policy of the legislation should be determined on the basis of the same test employed to decide whether a warrant should be set aside despite a conclusion on review that the ITO is sufficient to support the warrant. The Crown refers to cases such as R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.), at p. 553, approved of in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Kesselring, 2000 CanLII 2457 (ON CA), [2000] O.J. No. 1436, 145 C.C.C. (3d) 119 (C. A.), at paras. 31 and 33; R. v. Colbourne, 2001 CanLII 4711 (ON CA), [2001] O.J. No. 3620, 157 C.C.C. (3d) 273, at para. 40; and R. v. Vivar, 2009 ONCA 433, at para. 2. Those cases stand for the proposition that when the authorities, in obtaining a warrant, engage in deliberate deception or other conduct so subversive of the preauthorization process as to amount to an abuse of process, a warrant or authorization may be set aside to protect the process, even where the ITO could support the warrant.

[225] I do not accept this submission. There are fundamental differences between the review process to determine the validity of a warrant and the question of severance of the resulting warrant. When a court is engaged in a review process to decide whether a warrant could have issued it is determining whether the evidence was obtained in violation of s. 8 of the Charter. In other words, it is determining whether the warrant is “good” or “bad” for the purpose of protecting a REP. In that context it makes sense to require a finding of serious misconduct before concluding that a warrant must be set aside in circumstances where there is evidence in the ITO capable of supporting the warrant.

[226] When dealing with severance, the question of whether the warrant is “good” or “bad” has already been decided with respect to part of the warrant. The purpose of protecting a REP will be defeated if any significant invasion of privacy occurs solely in reliance on the invalid part of the warrant. That will be so whether the authorities engaged in serious misconduct in obtaining the warrant or not. Consequently, what Crown counsel proposes would both defeat the purpose of the review process and undermine s. 8 of the Charter.

[227] It seems to me that my approach is consistent with the approach taken by Spies J. in Sonne. While Spies J. did not speak in terms of distinguishing between the obtaining of evidence and additional privacy violations per se, it seems to have been the latter that led her to her ultimate conclusion. As she said, at para. 44, in reaching her conclusion that severance of the invalid parts of the warrants she was dealing with was appropriate: “I am not persuaded that the searchers would have conducted themselves differently in any meaningful way had they been presented with only that part of the warrants I have found valid.”

[228] That cannot be said in the case I am dealing with. The CIBC was directed to produce private information that went far beyond what was properly authorized. Consequently, there was a clear violation of s. 8 of the Charter in the course of the police obtaining the evidence the Crown wants admitted.

[229] My approach is also consistent with that taken by Hill J. in R. v. N.N.M. (2007), 2007 CanLII 31570 (ON SC), 223 C.C.C. (3d) 417, [2007] O.J. No. 3022 (S.C.J.). In declining to sever a warrant in that case Hill J. said, at para. 335:

Authorized searchers read the Form 5 warrant not the ITO. Apparent conferral of searching and seizing authority exceeding what is properly supported by grounds in the ITO improperly risks overly broad conduct at the scene of the search thereby implicating N.N.M.’s s. 8 Charter right to be free from search by invalid court orders.

Conclusion

[230] The production order issued on September 6, 2013 to the CIBC on the basis of ITO #12 is invalid. Consequently, the records produced to the police were obtained in violation of s. 8 of the Charter.

F. Dawson J.

Released: January 16, 2017

CITATION: R. v. Merritt, 2017 ONSC 366

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

DATE: 20170116

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and –

MELISSA MERRITT and CHRISTOPHER FATTORE

Applicants

RULING No. 6: Application to Exclude Evidence Obtained from Walmart and the CIBC

(Pyramid III)

F. Dawson J.

Released: January 16, 2017