CITATION: R. v. Browne, 2017 ONSC 5046
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 02 06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Alex Cornelius and Greg Hendry, for the Crown
- and -
STEVEN BROWNE, AMAL GREENSWORD AND ADRIAN WILLIAMS
Anthony Bryant and Anne Marie Morphew, for Mr. Browne
Nicole Rozier and Leah Gensey, for Mr. Greensword
Maureen Addie and Jamie Kopman, Counsel for Mr. Williams
Accused
HEARD: May 10, 12, 13, 16, 2016
RULING RE: STATEMENTS MADE TO PROBATION OFFICERS
COROZA J.
Overview
[1] Steven Browne, Amal Greensword and Adrian Williams are charged with first degree murder. The Crown theory is that the deceased, Dwayne Thompson, was lured to 7230 Darcel Avenue, Mississauga by Mr. Greensword to complete a drug transaction. Instead of completing the transaction, Mr. Thompson was accosted by a group of men and shot four times. Mr. Thompson died at the scene.
[2] The Crown's case involves evidence from a number of sources. The Crown will introduce cell-phone records in order to establish that certain cell phones registered to the accused accessed cellular towers close to the scene of the crime and other relevant addresses.
[3] Mr. Greensword and Mr. Browne provided cell phone numbers to probation officers while they were on probation for unrelated offences. The police obtained the numbers from probation while trying to identify the perpetrators of the murder. After obtaining the numbers, the police ultimately obtained production orders for the phone records. The validity of these orders is not challenged.
[4] The Crown will call the probation officers at trial to reveal the phone numbers that were given to them by Mr. Greensword and Mr. Browne.
[5] The Crown's case apparently turns, in part, on the use of cell phone evidence placing phones at specific locations and following a consistent pattern of movement, as well as communications between phones.
[6] Counsel for Mr. Greensword and Mr. Browne seek exclusion of the phone numbers, claiming that the conduct of the police was an unlawful search and seizure.
Positions of the Parties
[7] The accused make the following submissions:
(a) The Crown has not proven that the phone numbers were provided voluntarily to the probation officers;
(b) The subsequent disclosure of the phone numbers by the probation officers to the police violated the s. 8 Charter rights of the accused; and
(c) The statements to probation were compelled statements and the admission of this evidence infringes s. 7 of the Charter.
[8] The Crown submits that the probation officers had no involvement in the murder investigation and the numbers were provided well before the murder. They are therefore not persons in authority for the purposes of the confession rule and there is no need to inquire into whether the statements were voluntary.
[9] The Crown also submits that the cell phone numbers do not reveal core biographical data that constitutes intimate and private information about the accused and no s. 8 violation has occurred.
[10] Finally, the Crown argues that the accused were not compelled or coerced to provide their cell phone numbers to probation.
[11] On August 31, 2016, I held that the probation officers were not persons in authority and I also dismissed the application to exclude the phone numbers. I told the parties I would release reasons to follow. These are those reasons.
Factual Background
[12] On this voir dire, I heard from a number of police officers and a probation officer - Sandra McKenzie. On consent, I also reviewed the evidence of probation officers Caroline Scharf and Denise Sidsworth given at the preliminary hearing.
[13] None of the accused testified on the voir dire.
The Receipt of Mr. Browne's Phone Number
[14] Mr. Browne first met with probation officer Sandra McKenzie on October 23, 2012. He provided a phone number (647-862-9200). On November 26, 2012, he provided a different number (647-537-2507) to Ms. McKenzie.
[15] Cst. Bird spoke to Ms. McKenzie on November 22, 2012. He was asked to obtain Mr. Browne's address or phone numbers by the investigative team looking into the shooting death of Mr. Thompson. He identified himself as a police officer from the Homicide Bureau and told her they were doing an investigation. He advised her that Mr. Browne had come up in the investigation and whether she could provide information regarding his first and last address and contact information. He did not tell Ms. McKenzie that Mr. Browne was a suspect but he testified that he told Ms. McKenzie that Mr. Browne was someone involved in an investigation by the Homicide Bureau.
[16] He testified that he would never intentionally disclose specifics of the investigation to a probation officer because he could never be sure that the party on the other line is a probation officer or the relationship of the probation officer with the client. Furthermore, he testified that disclosing the information to the probation officer would potentially corrupt the ongoing investigation.
[17] He acknowledged that during his conversation he received other information such as employment and whether Mr. Browne was on social assistance.
[18] Cst. Bird testified that he did not get or consider getting a warrant or a production order for the phone number. He explained that he has never had to get a warrant for this type of information and he has always obtained the information from probation officers.
[19] Cst. Bird was not aware of any legislation that applied as to when probation officers could provide this information.
[20] Cst. Matthew Glendinning testified that he believed he phoned Mr. Browne's probation officer twice. He recorded a phone call of November 27, 2012 and he believed he may have spoken to the probation officer the day before on November 26, 2012.
[21] Detective Arnold assigned him to call probation and he was specifically asked to find some additional phone numbers or addresses for Mr. Browne.
[22] He could not specifically recall the specific words he used with Ms. McKenzie but he testified that his general practice was to identify himself as a police officer. The witness testified that his general practice was to identify himself, give his rank, who he worked for and provide a brief history of the investigation that he was conducting.
[23] He received a cellphone number and the information and address of a girlfriend-Success Akonzee.
[24] He also received information that Mr. Browne met with Ms. McKenzie on November 26, 2012 and that Mr. Browne was working with a counsellor to find employment.
[25] Cst. Glendinning also did not consider getting a warrant or a production order. He explained that contacting probation was similar to sharing information with the police service.
[26] Cst. Glendinning believed that the probation officer was obliged to give him this information because police officers were excluded from any requirement to get an order under the Freedom of Information Act.
[27] Cst. Cutler called Mr. Browne's probation officer on December 6, 2012. He was tasked by Detective Arnold to make the phone call to the probation officer to find out when the next probation and parole meeting would be.
[28] He was also asked to get contact information that would attempt to assist the police officers in locating Mr. Browne.
[29] He spoke with to Ms. McKenzie but could not recall the specific words that he used.
[30] His standard practice was to identify himself as a police officer, to advise in some from that he was investigating an ongoing criminal matter and that he was looking for some assistance from them.
[31] He could not recall what words he used with Ms. McKenzie and he could not recall telling her that Mr. Browne was a suspect or a person of interest. However, he acknowledged he would have used either a suspect or a person of interest in describing Mr. Browne.
[32] He received information that Mr. Browne met with her every two to four weeks. The last meeting was November 26, 2012 and the next meeting was scheduled for December 10, 2012. He was provided an up to date phone number for Mr. Browne.
[33] On December 10, 2012, he spoke with the manager of probation services Tuieba. He spoke to her three times.
[34] Sandra McKenzie is a probation and parole officer. She testified that she has worked as a probation officer for six and one half years.
[35] Ms. McKenzie acknowledged that information was routinely shared with the police. She testified that the police would usually advise the probation officer of an investigation and they would provide addresses and phone numbers. They would not provide information relating to health and reports not authored by the probation officer.
[36] She explained that information was provided in good faith to police officers conducting an investigation because from the perspective of probation there may be a public safety concern or investigation into the matter and they provide the information to address these concerns. She denied that all that was required was for a police officer to give a badge number and where they were calling from to obtain information. Ms. McKenzie explained it in these terms:
A. No, I am saying they announce where they are calling from. Their badge number, they say they are working on an investigation. I may ask, "What is it about my client that you-you're working on?" They may or may not say what it is. They may say, "You know what? It's an ongoing investigation. It's an old investigation, new investigation, whatever, but we cannot disclose that information at this time," and yes, I provide the-the. [See Transcript, May 12 ,2016 at p.62]
[37] Ms. McKenzie acknowledged she could not recall what information Cst. Bird provided to her on November 22, 2012.
[38] Ms. McKenzie acknowledged she could not recall the discussion with Cst. Glendinning on November 26, 2012 and November 27, 2012.
The Receipt of Mr. Greensword's Phone Number
[39] Mr. Greensword was supervised by probation officers from August 17, 2012, until November 2012. On August 23, 2012, Mr. Greensword met with probation officer Caroline Scharf and provided an address and cell phone number (647-606-9424). In November 2012, Mr. Greensword was transferred to the Brampton probation office and met with Denise Sidsworth on November 15, 2012. At that time, he provided a different number (416-543-6069).
[40] Cst. Glendinning received this information from Ms. Sidsworth on November 20, 2012. He agreed that on November 20, 2012 he spoke to Denise Sidsworth. However, he could not recall the specifics of the conversation.
[41] He agreed that typically when probation officers are asked for information they comply by giving all kinds of information.
Analysis
Issue 1: Were the phone numbers provided voluntarily by the accused?
(i) General Principles
[42] To determine whether a statement made by an accused is voluntary, the court must consider all of the circumstances. Each case is different and determinations on these types of issues are highly fact-specific. The question I must ask myself is whether the accused exercised free will by choosing to make the statement.
[43] The onus on this application is on the Crown. The voluntariness of the statement must be established to a standard of proof beyond a reasonable doubt.
[44] However, the Crown argues that before I embark on a voir dire to determine the voluntariness of the statement, the accused must demonstrate that the probation officers in this case were "person[s] in authority" for the purpose of the common law rule. The Crown points out that the rule only applies to statements "made by a person speaking to a 'person in authority' and that person knows that individual is a 'person in authority'".
[45] The Supreme Court of Canada in R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449, put it this way:
"...where the accused speaks out of fear of reprisal or hope of advantage because he reasonably believes the person receiving the statement is acting as an agent of the police or prosecuting authorities and could therefore influence or control the proceedings against him or her, then the receiver of the statement is considered a person in authority."
[46] In summary, generally speaking a "person in authority" is the police or the prosecuting authorities, but others may be included, depending on the circumstances.
(ii) Discussion
[47] I am persuaded by the Crown's submissions. The accused have not discharged their evidentiary burden to establish a valid basis to consider the issue of voluntariness.
[48] One of the controlling authorities on this issue is the Supreme Court of Canada's decision in R. v. T. (S.G.), 2010 SCC 20, [2010] 1 S.C.R. 688, where Charron J. held:
[22] A person in authority is typically a person who is "formally engaged in the arrest, detention, examination or prosecution of the accused": Hodgson, at para. 32. Importantly, there is no category of persons who are automatically considered persons in authority solely by virtue of their status. The question as to who should be considered as a person in authority is determined according to the viewpoint of the accused. To be considered a person in authority, the accused must believe that the recipient of the statement can control or influence the proceedings against him or her, and that belief must be reasonable. Because the evidence necessary to establish whether or not an individual is a person in authority lies primarily with the accused, the person in authority requirement places an evidential burden on the accused. While the Crown bears the burden of proving the voluntariness of a confession beyond a reasonable doubt, the accused must provide an evidential basis for claiming that the receiver of a statement is a person in authority.
[23] As noted in Hodgson, "[i]n the vast majority of cases, the accused will meet this evidential burden by showing [his or her] knowledge of the relationship between the receiver of the statement and the police or prosecuting authorities" (para. 38). Thus, where the receiver of the statement is an obvious state actor, such as a police officer, the fact that the person's status was known to the accused at the time the statement was made will suffice to meet the evidentiary burden. Whenever the evidence makes clear that a voir dire into admissibility is required, the trial judge must conduct one even if none is requested unless, of course, the defence waives the requirement and consents to the statement's admission. When the receiver of the statement is not a typical or obvious person in authority, it usually falls on the accused, in keeping with the evidential burden, to raise the issue and request a voir dire. [Emphasis added.]
[49] In my view, the accused have not met their evidential burden. On this record, I am not satisfied that there was an agency relationship or close collaboration as between the probation officers and the police or prosecution on this investigation.
[50] I recognize that some of the probation officers referred to the police as "justice partners" and were candid in admitting that they cooperated with the police when they were called for information. For example, Ms. Sidsworth testified at the preliminary hearing that she routinely told her clients that if the police came looking for a phone number she would cooperate with the police and provide that phone number.
[51] I have also carefully considered the evidence that Ms. McKenzie provided that she was asked by the P.C. Cutler on December 6, 2012 to move Mr. Browne's reporting date from the afternoon of December 10, 2012 to the morning. I am troubled by this evidence because Ms. McKenzie acknowledged she did move the reporting date at the request of the police and did not inform Mr. Browne as to the reasons of the change. In my view, there is no authority for this request and her compliance with the request is a factor to taken into account on this issue.
[52] In the end, however, I must focus on the issue that I must decide. The issue here is whether at the time Mr. Browne made the statements to Ms. McKenzie disclosing his phone numbers, she was a person in authority. In the end, I am simply not satisfied that when he made these statements, that Ms. McKenzie was acting in concert with or for the police at the time the phone numbers were given to her.
[53] What is significant in this case is that there is absolutely no basis to suggest that two important phone numbers that were disclosed in this case (647-606-9424 provided on October 18, 2012 and 647-862-9200 provided on October 23, 2012) were elicited by the probation officers for the purpose of assisting the police investigation. That is because there was no investigation until after the shooting. Therefore, there is absolutely no suggestion that when the accused gave these phone numbers to the probation officers there was an existing proceeding or investigation that connected the probation officers to the police, for which purposes they could be considered persons in authority. As was the case in R. v. Charles, 2013 ONSC 6704, a decision of my colleague Boswell J., there was no investigation extant against any of the accused at the time they provided these numbers. It is one thing to say that probation officers can be authority figures. However, it is quite another to say that they are state actors who can control proceedings or investigations that have not yet come into existence.
[54] As for the numbers provided to the probation officers after November 1, 2012, while there was an existing investigation, I am not satisfied that the probation officers were involved in the investigation, apprehension and prosecution of a criminal offence. The police officers consistently testified that they would not usually disclose details of an ongoing investigation to the probation officers. I am not satisfied that any of the probation officers were made aware of the details of the homicide investigation. The operative question for this threshold inquiry is not whether or not there was a homicide investigation after November 1, 2012. Clearly there was. In my view, the correct question is whether the accused considered the probation officers to be in a position to influence any specific investigation or proceeding against them. After examining the evidence carefully, I am satisfied that the confessions rule is not engaged.
[55] The Crown is not required to establish the voluntariness of any statements made by the accused to the probation officers relating to their phone numbers.
Issue 2: Did the Disclosure of the Phone Numbers Violate s. 8?
(i) General Principles
[56] Everyone has the right to be secure against unreasonable search or seizure under s. 8 of the Charter. However, a search or seizure under the Charter, that would attract constitutional protection, is any state conduct that interferes with a reasonably held expectation of privacy.
[57] The Crown argues that since the only information they are seeking to tender into evidence are the phone numbers there can be no s. 8 Charter breach because the information does not reveal core biographical data that constitutes intimate and private information about the accused.
[58] I agree with that position.
[59] The factors that inform the analysis of whether there is a reasonable expectation of privacy are not in dispute. They are:
(1) The subject matter of the alleged search;
(2) The claimant's interest in the subject matter;
(3) The claimant's subjective expectation of privacy in the subject matter; and
(4) Whether the subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.
(ii) Discussion
[60] Ms. Morphew submits that I must take a broad and functional approach to the question of whether there was a violation of s. 8 of the Charter. Counsel argues that if I look at the whole of the information obtained by the Peel Regional Police from the probation officers it involves much more than just a phone number and an address.
[61] For example, Ms. Morphew forcefully argues that the police were able to obtain information about Mr. Browne's counselling, where he was living and who his friends were[^1].
[62] I do not accept this argument for the following reasons.
[63] First, if the Crown was seeking to admit this evidence or if there some allegation that the police somehow used the evidence of counselling or his friends to incriminate Mr. Browne, different considerations may apply. In this case it is important to recognize the Crown is seeking to tender the phone numbers into evidence, nothing else. This is a voir dire into the admissibility of the phone numbers.
[64] Second, while there may have been ancillary revelation of information, this does not affect the proper analysis of the privacy interests engaged in the disclosure of a phone number (See: R. v. Lattif, 2015 ONSC 1580, per Nordheimer J.).
[65] In my view the controlling question on this issue is whether or not the accused had a reasonable expectation of privacy in their phone numbers. The answer is that they did not, because the phone numbers did not reveal core biographical data that revealed intimate and private information about each of them.
[66] There is very strong authority from this court that supports my conclusion. I adopt the analysis of RSJ Fuerst in R. v. McBean, 2011 ONSC 878, at paras. 21-23; Nordheimer J. in R. v. Lattif, at paras. 10-15; and Code J. in R. v. Khan, 2014 ONSC 5664 at para. 27.
[67] The case that closely resembles the circumstances of this case is Lattif. In that case Mr. Lattif previously robbed a bank. In 2012 the police were investigating a series of bank robberies. During that investigation they connected another man to the series of robberies. They consequently obtained the phone records of this other individual. Those records revealed that he had contact with another phone number just before the robberies.
[68] The police then obtained Mr. Lattif's phone number from the City of Toronto social services - simply by requesting it. Mr. Lattif had previously given that information to social services. The phone numbers matched. The police used this information, along with other information about the robberies, to obtain a production order for his phone records. Those records in turn revealed the location of Mr. Lattif's phone and provided a basis for the police to charge him.
[69] My colleague, Nordheimer J. held that since Mr. Lattif did not testify there was no evidence of his subjective belief that he had a reasonable expectation of privacy. I note that none of the accused in this case testified on the voir dire.
[70] My colleague went on to state, at para. 8:
Information regarding a person's address and telephone number was, until the recent decline of telephone books, readily available to any person who simply looked up someone's name in those books. Even today, web based services such as Canada 411 still provide such information. It is also a fact that nowadays we routinely provide our telephone numbers and addresses to an almost unlimited number of businesses and government entities. To suggest that there is a reasonable expectation of privacy in such information is belied by the breadth of our release of that information to others.
[71] Such personal information is not protected as part of the biographical core of information as discussed in R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at para. 20, which includes information that "tends to reveal intimate details of the lifestyle and personal choices of the individual". Nothing about Lattif's address and phone number revealed such details. Likewise, there is no evidence on this record that the phone numbers of the accused revealed anything of that nature.
[72] Both counsel went to great lengths to argue that the breach of s. 8 occurred in this case when the police requested information from the probation officers and the probation officers did not comply with the statutory regime in responding to the request.
[73] I agree that the probation officers and the police officers who testified at the preliminary hearing and on this voir dire had some difficulty in articulating the authority they were relying on that would permit the probation officers to disclose personal information to the police. Ms. McKenzie in particular appeared to have some confusion with the regulations when she was cross-examined on the particular sections.
[74] That being said, I am satisfied that when the probation officers disclosed the phone numbers of the accused, they were doing so lawfully pursuant to the legislation. I am also satisfied that the police did not need prior to judicial authorization to obtain this information. They were permitted to ask the probation officers for this information.
[75] For the sake of convenience, I set out the following relevant parts of the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22 and the regulations :
Confidentiality
- (1) Every person employed in the administration of this Act, including any person making an inspection, investigation or inquiry under this Act, shall preserve secrecy in respect of all matters that come to his or her knowledge in the course of his or her duties, employment, inspection, investigation or inquiry and shall not communicate any such matters to any other person except,
(a) as may be required in connection with the administration of this Act, the Corrections and Conditional Release Act (Canada), the Prisons and Reformatories Act (Canada), the Young Offenders Act (Canada), the Youth Criminal Justice Act (Canada), the Provincial Offences Act or the Criminal Code (Canada) or the regulations thereunder;
Purpose of disclosure
(3) Any disclosure made under subsection (2) shall be for one or more of the following purposes:
Protection of the public.
Protection of victims of crime.
Keeping victims of crime informed of the law enforcement, judicial or correctional processes relevant to the crime that affected them.
Law enforcement.
Correctional purposes.
Administration of justice.
Enforcement of and compliance with any federal or provincial Act, regulation or government program.
Keeping the public informed of the law enforcement, judicial or correctional processes respecting any individual. 1997, c. 17, s. 6.
Regulations RRO 1990, Regulation 778
DISCLOSURE OF PERSONAL INFORMATION
- (1) For the purposes of subsection 10 (2) of the Act, a person designated under that subsection may disclose personal information about an individual in the circumstances described in subsection (2) to,
(a) any police force in Canada;
(2) Subsection (1) applies if the individual is under investigation of, is charged with, or is convicted or found guilty of an offence under the Criminal Code (Canada), the Controlled Drugs and Substances Act (Canada) or any other federal or provincial Act and if the circumstances are such that disclosure is required for the protection of the public, the administration of justice or the enforcement of or compliance with any federal or provincial Act, regulation or government program. O. Reg. 266/98, s. 1.
- In deciding whether or not to disclose personal information under this Part, the person who is authorized to disclose the information shall consider the availability of resources and information, what is reasonable in the circumstances of the case, what is consistent with the law and the public interest and what is necessary to ensure that the resolution of criminal proceedings is not delayed. O. Reg. 266/98, s. 1.
[76] In my view, there is nothing on this record that supports the submission that the probation officers or the police officers violated the Act or the Regulations. That submission is untenable in light of the clear language of the legislation which permits the sharing of information to police officers who are conducting an investigation into probationers. The legislation is permissive and the Regulation provides some guidance to probation officers before they can disclose this information. They must consider the availability of resources and information, what is reasonable in the circumstances of the case and what is consistent with the law and the public interest. I would also observe that the constitutionality of these provisions has not been challenged on this application.
[77] The probation officers disclosed this information because they were told that their clients were under investigation by the Peel Regional Police. The fact that they may have only been provided some generic description of an investigation by the police does not mean that the probation officers were under a duty to inquire further or ask additional probing questions. Nor, was there a duty on the police officers to provide details about the investigation. It seems to me to be impractical and at odds with effective law enforcement and crime prevention, when a probation officer is requested by a police officer to provide a phone number and an address for the purposes of an investigation, to require that probation officer to require extensive details about the investigation. Depending on the nature of the information requested the probation officer may ask for further information. However, in this case, I am of the view that simply telling the probation officers that there was an investigation was enough to obtain a phone number of the probationer. In any event, Cst. Cutler testified that the probation officers were not obliged to answer their questions or hand over the information. I read his evidence to be that he could not compel the probation officer to provide this information through a simple request over the phone. According to Cst. Cutler if the probation officer refused, he testified "that's that".
[78] There was extensive cross-examination on Ms. McKenzie's knowledge of a memorandum or policy manual that set out the best practices for probation officers when receiving requests for information. Even assuming that there was non-compliance with any memorandum or policy manual, this is not fatal in this case. These documents are simply directives to guide probation officers in the exercise of their discretion and the execution of their functions. I am not persuaded these manuals have legal implications. Any breach of a policy manual, even if proven, does not necessarily result in a violation of the legislation.
[79] I find no breach of s. 8 of the Charter.
[80] Assuming that I am wrong in my conclusion, the question would arise as to whether or not the phone numbers should be excluded as a result of the breach. The accused have the burden of demonstrating the evidence should be excluded. I will deal with the issue of s. 24(2) of the Charter briefly. In my view, the three-part test for exclusion or admission set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 , would apply to this case in the following way.
[81] With respect to the seriousness of the Charter violation, this strikes me as being very far from flagrant or reckless behaviour on the part of the probation officers or the police. Given their general obligation to the administration of justice and their duty to ensure public safety, any overstepping by them would not be significant. At most, it is the failure of the probation officers to perhaps make more detailed inquiries that is at issue here.
[82] In this case it is critical not to lose sight of the circumstances of the alleged misconduct. On my view of the record tendered on this application, I am not satisfied that releases of this nature (i.e. a telephone number) were frequent or reflected a systemic and ongoing problem with constitutional infringements by the probation officers working in collaboration with the Peel Regional Police. Even the behavior that troubled me (i.e. the moving of a reporting date) was not a typical request or situation according to Ms. McKenzie.
[83] At the time the accused provided the phone numbers to the probation officers they were not in an adversarial relationship. The accused were all notified that disclosure of this information was a possibility. The police, in my view, did not employ abusive means to obtain this information.
[84] With respect to the impact on the Charter-protected interests of the accused, if disclosure of a telephone number can engage privacy interests, it is at the very low end of the privacy spectrum. The numbers do not disclose anything of an intimate nature about the accused.
[85] In terms of society's interest in an adjudication on the merits, it is obvious that the phone numbers are an important part of the Crown's case. The disclosure of the phone numbers led to the seizure of cell phone records. These records will play a prominent role at this trial.
[86] When I combine all those factors and in particular when I consider that, if the probation officers and the police crossed a constitutional line, they did so by a very small measure, I am not persuaded that the accused have demonstrated on the balance of probabilities that the evidence would be excludable if there had been a violation of their s. 8 Charter rights.
Issue 3: Alleged Breaches of Section 7
(i) General Principles
[87] Section 7 of the Charter offers protection against self-incrimination. The section may also provide protection when a person is compelled to provide information to the authorities.
[88] However, the extent to which compelled information can later be used against the person who provided it without violating that person's right against self-incrimination will depend on the purpose for which the information was initially obtained. The operative question here is whether the person's ability to make a meaningful choice to speak to the authorities was overridden.
[89] An application to exclude a statement as offending the principle against self-incrimination involves consideration of a number of factors. These factors have been set out conveniently in the materials filed by all counsel. I will not repeat them here. In my view, the core issue to be decided is did the accused hold an honest and reasonable belief that he was required to provide the phone numbers by law?
(ii) Discussion
[90] It is generally the accused who raises the s. 7 Charter challenge to the admissibility of evidence who bears the onus of establishing an infringement of his Charter rights. Thus, in alleging the violation of the principle of self-incrimination, it is Mr. Browne and Mr. Greensword who must establish on the balance of probabilities that the statement was compelled.
[91] As I understand the jurisprudence, the test is whether, at the time that the accused gave the statement, he gave the statement on the basis of an honest and reasonably held belief that he was required by law to report his phone number to the probation officers. If the accused gave this information freely, without believing or being influenced by the fact that he was required by law to do so, then it cannot be said that compulsion is the cause of the declarant's statements.
[92] On this record, I cannot make this finding. I say this for the following reasons.
[93] First, the accused did not testify. I do not have any evidence as to what their subjective belief was on this point.
[94] Second, the evidence of Ms. McKenzie suggests that as there was no requirement for a phone number on the probation orders in question here, then there could be no threat of a charge of breach of probation for failing to provide the number. That evidence is unchallenged. If there was no threat or charge, I am unable to conclude that the statements about their phone numbers were likely compelled. There is no evidence that the accused believed that a failure to provide the phone number in the circumstances of this case would have led them to believe that there would be a breach charge.
[95] I am not satisfied that the direction provided to each accused, as part of their intake, to provide a phone number objectively meant that the accused were compelled to make the statements to the probation officer. As Ms. McKenzie explained, the intake interview and direction did not have the force of a probation order.
[96] On this issue, I have also reviewed the evidence of Ms. Scharf and Ms. Sidsworth on this application. A careful review of their evidence reveals nothing about Mr. Greensword having a subjective belief that he was required by law to provide the phone numbers.
[97] Third, I do not believe that the probation officers created any psychological or emotional pressure on the accused to make the statements. I take no issue with the proposition that probation officers are authority figures and are in a somewhat adversarial relationship with probationers. There is no question they monitor compliance with a court order and can in certain situations commence enforcement proceedings. However, it is also accurate to say that probation officers are there to assist the probationer in his rehabilitation. The probation officer simultaneously performs two distinct functions, rehabilitation and enforcement.
[98] In my view, it is not obvious that any of the probation officers created an atmosphere of compulsion when they spoke to their clients. As I read Ms. McKenzie's evidence, the provision of a phone number was necessary in order to maintain contact with her client. However, failure to provide it would not necessarily lead to a charge. Ms. McKenzie put it this way:
Q. Okay. And if that person similarly they say, "Okay, I'm not going to provide an address and I'm not going to provide you with a phone number."
A. M'hmm
Q. That's happened before.
A. Yes.
Q. And what's your position then?
A. If you're asking if it's an automatic breach, no.
Q. So it's-it may not be an automatic breach, but that behaviour is breach worthy.
A. It could be breach worthy, but of course from where I sit as a probation and parole officer, my job also entails trying to get the person to appoint (sic) where they can work with me for their betterment. And so I will try other approaches prior to enforcement. [Emphasis added. Transcript May 12, 2016 at p. 69]
[99] At another point Ms. McKenzie added the following:
Q. And if you thought the client wasn't complying with any of the conditions, you would either determine whether you could try and bring them in to compliance?
A. Yes, I would talk to the client about it.
Q. Or you would look to enforce the order by having them charged with breach?
A. That's not how it works, but I-the starting point would be to work with the client unless there is a violation based on what's made out in the order, that's when the breach happens. [Emphasis added. Transcript May 13, 2016 at p. 22]
[100] I read Ms. McKenzie's evidence as suggesting that in order for the proper functioning of the supervisory relationship, that the probation officer and the probationer must be able to contact one another. Therefore, it was in the interest of each party to have the ability to contact each other. Moreover, there is nothing unfair or coercive about asking a probationer to provide contact information. The provision of the phone number was part of what Ms. Mckenzie described as a collection of "tombstone" data so that she could properly supervise Mr. Browne while on probation.
[101] Whether the provision of a phone number to a probation officer is compelled is determined based on the particular circumstances of the case. In this case, there is no evidence that the accused had a subjective and reasonably held belief that he must provide a phone number and, objectively, there is no evidence that would suggest the statement was compelled. There are going to be cases where individuals provide phone numbers to their probation officers freely and unmotivated by any compulsion. On this record, I cannot make a finding in favour of the accused. They have not met their onus.
[102] I conclude that that the accused have not demonstrated a violation of the principle against self-incrimination. The claim under s. 7 of the Charter is dismissed.
Conclusion
[103] The phone numbers are admissible in this trial.
Coroza J.
Released: February 6, 2017
CITATION: R. v. Browne, 2017 ONSC 5046
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 02 06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
STEVEN BROWNE, AMAL GREENSWORD AND ADRIAN WILLIAMS
Accused
RULING RE: STATEMENTS MADE TO PROBATION OFFICERS
COROZA J.
Released: February 6, 2017
[^1]: Ms. Rozier for Mr. Greensword did not advance this submission because his information revealed to the police was simply his phone number.