CITATION: R. v. Merritt, 2017 ONSC 5245

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

DATE: 20170905

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Brian McGuire and Eric Taylor, for the Crown

Respondent

• and -

MELISSA MERRITT and CHRISTOPHER FATTORE

David Berg and Joel Hechter, for Melissa Merritt

Jennifer Myers and Daisy McCabe-Lokos, for Christopher Fattore

Applicants

HEARD: April 18, May 8, 9, 10, 11, 12, 15, 16, 18, 23, 29, 30, 31, June 1, 2, 5, 6, 9, 12, 13, 14, 15, 19, 20, 21, 22, 26, 27, 28, 2017 at Brampton

RULING No. 12: Omnibus s. 24(2) Application

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.

Para. No.

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

Nature of the Application...................................................................................... 5

The Hearing of the Application.............................................................................. 9

The Additional Alleged Charter Violations............................................................. 13

The Approach Taken in These Reasons............................................................... 25

The Applicable Legal Principles.......................................................................... 29

Factual Findings................................................................................................ 33

Application to Exclude the PDF of a “Mortise Lock” Found on the Cellphone Seized From Melissa Merritt............................................................................................................... 34

The Seriousness of the Charter-Infringing State Conduct.................................. 47

The Impact on Charter-Protected Interests....................................................... 71

Society’s Interest in Adjudication on the Merits................................................. 80

Final Balancing.............................................................................................. 84

Christopher Fattore’s CIBC Banking Records...................................................... 87

The Seriousness of the Charter-infringing State Conduct.................................. 95

The Impact on Charter-Protected Interests..................................................... 100

Society’s Interest in Adjudication on the Merits............................................... 103

Final Balancing............................................................................................ 104

The Internet Search Queries found on the Compaq CQ-10

Narrative Overview of the Breaches Conceded and Alleged.............................. 106

The Loaner Phone........................................................................................ 128

The September 9, 2013 Perimeter Search...................................................... 137

The Lexar USB Drive.................................................................................... 165

The Search of the Compaq CQ-10 and Other Electronic Devices..................... 178

Failure to Report to a Justice/Extension of Detention.................................... 181

Did the Police Activity Exceed the Scope of the Warrant that Could Have Issued? 190

The Further Examination of the CQ-10 Data by Csts. MacDonald and King in April 2014 201

Conclusion under this Sub-Heading............................................................ 212

Monitoring Email/Solicitor-Client Privilege: Factual Background........................ 213

The Privilege Issue....................................................................................... 230

Was There an Attempted Cover-Up Concerning the Interception of Email Subject to Solicitor-Client Privilege?..................................................................................................... 239

Breaches Associated With the Collection and Review of Email Prior to Applying for the General Warrant of May 31, 2016.............................................................................. 269

Cst. Parent’s Improper Access to the FFR Gmail Account................................ 309

The May 31, 2016 General Warrant.................................................................. 349

The Bases for the Challenges to the General Warrant...................................... 357

The Premise for Seeking a General Warrant was Flawed............................. 364

Sub-Facial Defects in the ITO for The General Warrant: Were Cst. MacDonald and Det. Ciftci Aware of Cst. Parent’s Prior Unlawful Access to the FFR Account?.............. 368

Other Sub-Facial Defects Alleged in the ITO for the General Warrant............ 386

Solicitor-Client Privilege and the Validity of the General Warrant................... 399

The Production Order for Medical Records from the Peterborough Regional Health Centre 424

Have the Applicants Established that the Admission of the Internet Search Queries Found on the Compaq CQ-10 Would Bring the Administration of Justice Into Disrepute?........... 442

The Seriousness of the Charter-infringing State Conduct................................. 444

The Impact on Charter-Protected Interests..................................................... 501

Society’s Interest in Adjudication on the Merits............................................... 517

Final Balancing............................................................................................ 523

Overall Conclusion........................................................................................... 532

Introduction

[1] Melissa Merritt and Christopher Fattore are common law partners. They have four children together. Prior to their relationship Ms. Merritt was married to Caleb Harrison. Ms. Merritt and Caleb Harrison had two children together. A bitter child custody and access dispute concerning those two children was ongoing throughout the time frame of all three of the murders alleged in this case.

[2] Melissa Merritt and Christopher Fattore are each charged with the first degree murder of Caleb Harrison on August 23, 2013. They 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. All three victims were found dead in the Harrison family home located in Mississauga, Ontario.

[3] The first two deaths were not originally found to be homicides. When Caleb Harrison was found dead in his bed on August 23, 2013 he was obviously the victim of homicide and the investigation of his murder led to the re-opening of the investigations into the deaths of William and Bridget Harrison.

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

Nature of the Application

[5] By agreement all s. 24(2) applications flowing from previous rulings were deferred to be dealt with together.

[6] In a series of pre-trial applications the applicants alleged numerous violations of their s. 8 Charter rights to be free from unreasonable search and seizure. As a result the court has found the following breaches of the applicants’ s. 8 Charter rights:

(a) An unreasonable search of a cellphone (the search was based on a facially invalid warrant) that was lawfully seized from Ms. Merritt on August 26, 2013;

(b) A failure to do a report to a justice (as required by a s. 489.1 of the Criminal Code) for the data found on that cellphone after the phone was searched;

(c) An overly broad and, therefore, invalid production order for the CIBC banking records of Mr. Fattore;

(d) A warrantless search of a USB device on October 10, 2013 that was lawfully seized on October 2, 2013;

(e) An unreasonable search (the search was based on a facially invalid warrant) of two laptop computers and two USB drives that were lawfully seized on October 2, 2013;

(f) A failure to do a report to a justice (as required by s. 489.1 of the Criminal Code) for the data found on the same laptop computers and USB drives after they were searched and the data seized;

(g) An improper application for an extension of the original detention order for the two laptop computers and USB drives which resulted in an extension order made without jurisdiction; and

(h) A facially invalid information to obtain (ITO) a general warrant issued on May 31, 2016.

[7] As a result of these breaches the applicants seek the exclusion of the following evidence pursuant to s. 24(2) of the Charter:

(a) A PDF download of a “mortise lock” found on the cellphone seized from Melissa Merritt. This was the type of lock on the front door of the Harrison home.

(b) Mr. Fattore’s CIBC banking records which assist in demonstrating that Mr. Fattore used his debit card to purchase a pair of shoes the evening before Caleb Harrison’s murder that were discarded in the applicants’ garbage shortly after the murder;

(c) A series of internet search queries found on one of the two laptop computers seized on October 2, 2013 – namely, a Compaq CQ-10. The search queries relate to causing death by various means, including choking, and to inheritance and child custody after the death of a parent. They are capable of being viewed as quite incriminating.

[8] While on the surface these basic facts suggest a straightforward s. 24(2) analysis there are other factors which significantly complicate the matter. The applicants allege that their s. 8 Charter rights were violated in many other ways during the course of the investigation. While those violations did not lead directly to additional evidence, the applicants submit the additional s. 8 violations aggravate the seriousness of the s. 8 violations already found on the basis that they demonstrate a “pattern of abuse” of their Charter rights. The applicants rely on what was said at para. 75 of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353:

Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion. [Emphasis added.]

The Hearing of the Application

[9] This approach led to an extensive evidentiary hearing on the s. 24(2) application. Numerous other Charter violations were alleged. Due to their number and the extent of the potential evidence all counsel proposed that I first conduct a “screening hearing” to determine what was relevant to the s. 24(2) application. That hearing did result in a narrowing of the s. 24(2) application: see Ruling No. 9: Section 24(2) Screening Motion (R. v. Merritt, 2017 ONSC 2245). However, even after the screening motion and the respondent’s concession that a number of additional Charter violations did occur, several weeks of evidence was called on the s. 24(2) application in relation to the other alleged s. 8 violations.

[10] The matter has also been complicated by ongoing disclosure issues. Over 1,500 internal police emails plus attachments, not previously disclosed, were produced during the course of the s. 24(2) hearing. This led to delays and to the need to recall a number of police witnesses. It resulted in numerous changes or additions to the evidence previously given.

[11] There are a number of factual and credibility issues that must be resolved. These include the nature, extent and significance of additional breaches conceded by the respondent. I must also determine whether the additional alleged breaches which are not conceded, have been established. The evidence on these issues overlaps, like a series of Venn diagrams stretched along the timeline. Many of the witnesses gave evidence relevant to more than one of the additional breaches. An understanding of how the various allegations fit into the timeline is helpful in understanding how the additional Charter violations relate to one another, to the evidence which the applicants seek to exclude, and to whether there is a “pattern of abuse” which aggravates the seriousness of the Charter violations already found.

[12] Procedurally, as the applicants bear the burden on this application, all witnesses were called by the applicants. As the witnesses were potentially adverse in interest the rules of examination-in-chief were relaxed. Witnesses were effectively cross-examined by all parties.

The Additional Alleged Charter Violations

[13] The additional breaches alleged include the following, which I will explain further when I turn to the narrative overview:

(a) A warrantless search of a “loaner” cellphone on September 3, 2013. The loaner phone was provided to the applicants to use while the police analyzed the cellphone seized from Ms. Merritt on August 26, 2013;

(b) A facially defective search warrant for a further search of the loaner phone which was issued on November 4, 2013;

(c) A deliberately misleading ITO in support of the same search warrant;

(d) A failure to complete a report to a justice for the data obtained from the loaner phone;

(e) An unreasonable perimeter search of the applicants’ residence at 8568 Mississauga Road on September 9, 2013;

(f) An unreasonable seizure of emails subject to a potential claim of solicitor-client privilege on November 18, 2013 and January 16, 2014;

(g) An unreasonable seizure of the applicants’ email account, fattorefamilyrocks@gmail.com, on February 3, 2014;

(h) An unreasonable search of the applicants’ email account, fattorefamilyrocks@gmail.com, on February 3, 2014;

(i) An unreasonable seizure of the applicants’ email account, somewhereandnowhere@gmail.com, on February 6, 2014;

(j) An unreasonable seizure of the applicants’ email account bigcounty2013@gmail.com, on February 6, 2014;

(k) Unreasonable searches of the somewhereandnowhere@gmail.com and bigcounty2013@gmail.com email accounts;

(l) A deliberately misleading ITO in support of a production order issued May 20, 2014 for records at a Peterborough, Ontario hospital for Melissa Merritt;

(m) An additional unreasonable search of the Compaq CQ-10 laptop in the spring of 2016; and

(n) A sub-facially defective and deliberately misleading ITO in support of a general warrant issued May 31, 2016 which allowed the police to download and examine the fattorefamilyrocks@gmail.com email account.

[14] I have taken the foregoing substantially from the written submissions filed by the respondent at the conclusion of the s. 24(2) application. They do not in all respects accord with the applicants’ characterization of each area of breach but I am satisfied they convey the essence of what is alleged.

[15] The respondent concedes some of the additional alleged Charter violations in whole or in part. Paraphrasing from the same written submissions filed by the respondent, the following are conceded to constitute additional breaches of s. 8 of the Charter:

(a) The warrantless search of the loaner phone by Cst. Lawrence Lowe on September 3, 2013;

(b) The failure to prepare a report to a justice as required by ss. 489.1 and 490 of the Criminal Code with respect to the data obtained from the loaner phone;

(c) The perimeter search of the applicants’ residence on September 9, 2013;

(d) The failure of Cst. Michael Young to take adequate steps to protect solicitor-client privilege by restricting access to the “eBlaster Report” from January 16, 2014 detailing email intercepted between 6:36 p.m. to 11:00 p.m. on that date pursuant to an authorization to intercept private communications issued pursuant to Part VI of the Criminal Code;

(e) The securing and “holding” of the applicants’ three email accounts beyond what was reasonable (based on exigent circumstances and the inability to download only part of an email account);

(f) The search of the bigcounty2013@gmail.com and fattorefamilyrocks@gmail.com accounts on March 24, 2014 by Cst. Michael Young;

(g) The accessing and reading of emails in the fattorefamilyrocks@gmail.com email account by Cst. Jeffery Parent on April 9, April 24 and October 29, 2014; and

(h) Accessing and downloading the fattorefamilyrocks@gmail.com email account pursuant to the general warrant of May 31, 2016 which warrant is conceded to be invalid.

[16] In a PowerPoint presentation filed during submissions the respondent also acknowledged that there were sub-facial defects in the ITO for the warrant eventually obtained to search the loaner phone and in the ITO in relation to the May 31, 2016 general warrant. However, the respondent characterizes these somewhat differently than the applicants do and disagrees with the applicants as to their effect on the validity of the associated warrants. The respondent submits that the warrant for the loaner phone could have issued in any event. As mentioned at (h) above, the respondent concedes the invalidity of the May 31, 2016 general warrant but not on the basis of the sub-facial defects I am referring to. Rather, the respondent concedes the invalidity of the May 31, 2016 general warrant on the basis that once the ITO in support of it is edited to remove references to the data found on the Compaq CQ-10, as it must be due to my findings that the warrant authorizing the search of the CQ-10 was invalid, that general warrant could not have issued.

[17] The respondent has made significant concessions regarding the additional breaches alleged. However, the respondent has not conceded that any of the violations are as serious as the applicants submit they are. In general, it is the respondent’s position that the violations already found and those conceded are the product of honest errors made by officers grappling with a large scale and complicated investigation that required them to deal with many electronic devices and electronic evidence at a time when the legal environment concerning electronic devices and the seizure of data was evolving quickly.

[18] The applicants, on the other hand, allege additional violations that go considerably beyond the concessions made by the respondent. The applicants contend that the police constantly acted in complete disregard of the Charter. They submit that the evidence reveals a pattern of the police ignoring the need for authority to search, of searching first and seeking authorization later and, significantly, of engaging in deliberate cover-ups of their unauthorized activity. The applicants also allege that officers actively misled justices during the pre-authorization process and gave misleading or untruthful testimony on this application.

[19] The respondent readily agrees that many things should have been done differently. However, the respondent denies that there was any intent to mislead during the pre-authorization process in relation to the obtaining of search warrants and production orders and forcefully submits that, properly viewed, the evidence does not support that there were cover-ups or that the officers who testified have been untruthful or attempted to mislead the court.

[20] I would mention two themes or considerations that flow through the various events moving along the timeline.

[21] The first is solicitor-client privilege. The applicants maintain that when dealing with data and email the police continually ignored or failed to pay proper attention to the need to protect solicitor-client privilege in circumstances where they knew that the applicants had been involved with family law lawyers in relation to child custody proceedings. They point out that the police were also aware that Ms. Merritt was previously involved with criminal defence counsel in relation to child abduction charges brought against her and resolved prior to Caleb Harrison’s murder.

[22] The second is that the additional Charter violations which involve the Gmail accounts are somewhat remote in time from the violation in relation to the search of the Compaq CQ-10 which led to the internet search queries. Those search queries are perhaps the most significant evidence the applicants seek to exclude. They were found commencing in late October 2013. As can be seen in the description of the additional breaches above, many of the additional breaches relate to events in 2014 and stretching into 2016. Not only did those additional breaches produce no evidence, but some of the alleged or conceded additional breaches occurred two and a half years after the incriminating search queries were found on the CQ-10 pursuant to a facially invalid warrant.

[23] A further aspect of this second consideration is that – as we shall see – these later alleged violations may be characterized as more serious than the breaches already found that are more directly associated with the finding of the search queries on the CQ-10. Therefore, this case raises somewhat unusual circumstances where the Charter violations directly associated with the finding of the evidence are arguably significantly less serious than the subsequent breaches, some of which are much further down the timeline.

[24] However, the applicants submit that these later violations should be viewed as connected to the search query evidence. The applicants submit that many of the additional subsequent violations are contextually related to the earlier finding of the search queries because they all grew out of the efforts of investigators to attribute the search queries to one or the other of the accused by reviewing the contents of the email accounts to see who was using the CQ-10 at the relevant times. In particular, connecting some of the incriminating search queries to Melissa Merritt would assist greatly in increasing the strength of the prosecution’s case against her.

The Approach Taken in These Reasons

[25] In an effort to impose some organizational simplicity on the overlapping issues and the volume of evidence I will take each of the three categories or items of evidence which the applicants seek to exclude and work through the analysis required by Grant. As I do so I will resolve any factual or credibility issues that must be resolved before completing that stage of the analysis.

[26] The applicants’ position that a pattern of abuse must be considered creates some challenges for this approach. In each section I will identify the additional breaches that I conclude must or should be taken into account at that stage, or I will briefly explain why other alleged violations do not, in my view, play a significant role in relation to the admission or exclusion of the category or item of evidence under consideration.

[27] Most, but not all, of the factual and credibility issues arise in the context of the third category of evidence sought to be excluded – the internet search queries found on the CQ-10. The most difficult factual and credibility issues will be dealt with there. It appears that the greatest emphasis on the “pattern of abuse” submission is directed at excluding the search queries found on the CQ-10. This is expressly stated at the beginning of the written submissions filed on behalf of Ms. Merritt at the conclusion of the evidence. This is also where concerns about solicitor-client privilege are best discussed.

[28] Some of the additional conceded or alleged s. 8 breaches do not fit neatly under one or other of the three items of evidence sought to be excluded. The conceded breach arising from the September 9, 2013 perimeter search of the applicants’ residence and the contested situation related to the production order for the Peterborough hospital are two examples. There are factual and/or credibility issues which must be resolved in relation to a number of such allegations which I will deal with under separate headings as I move along the timeline.

The Applicable Legal Principles

[29] The principles which govern s. 24(2) Charter applications flow from Grant and R. v. Harrison, 2009 SCC 34. They are well known and I will only briefly summarize them.

[30] The purpose of s. 24(2) of the Charter is to maintain the good repute of the administration of justice. This encompasses maintaining the rule of law and upholding Charter values: Grant, at para. 67. Section 24(2) is concerned with integrity and public confidence in the justice system long term. The inquiry is objective and asks “whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute”: Grant, para. 68.

[31] The existence of a Charter violation means that the administration of justice has already been damaged. The focus of s. 24(2) is prospective and societal. It is not aimed at punishing the police or compensating the accused: Grant, paras. 69-70.

[32] As the court in Grant stated, at para. 71:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

Factual Findings

[33] While I will be making additional factual findings here I have already made numerous factual findings in my earlier rulings which have significance for the s. 24(2) analysis. Of necessity, I will make some reference to my previous rulings and findings but I will not be able to refer to all relevant factual findings already made. Consequently, I proceed on the basis that relevant aspects of my prior rulings form part of the factual findings applicable here.

Application to Exclude the PDF of a “Mortise Lock” Found on the Cellphone Seized From Melissa Merritt

[34] Caleb Harrison was found dead in his bed on August 23, 2013. Within about a day the police had confirmed his death was a homicide.

[35] The applicants were not immediately considered suspects but they were persons of interest due to the long standing custody and access battle over the children Melissa Merritt and Caleb Harrison had together. The applicants also had contact with Caleb Harrison on the early evening of August 22, 2013 at one of the children’s baseball games.

[36] On August 26, 2013 Ms. Merritt was the subject of an extensive video interview conducted by Det. Derek Rice. At the end of the interview Det. Rice seized the cellphone in Ms. Merritt’s possession. In Ruling No. 4 (R. v. Merritt, 2017 ONSC 80) I found that the seizure was lawful pursuant to s. 487.11 of the Criminal Code.

[37] The police advised Ms. Merritt that they would obtain a warrant to examine the data recorded on the seized cellphone.

[38] As the cellphone was the applicants’ family phone the police provided that applicants with a “loaner” cellphone which Det. Rice purchased and delivered to the applicants later on August 26, 2013.

[39] On August 28, 2013 the police obtained a search warrant for the purpose of conducting a technological examination of the seized cellphone. Cst. Aaron Meisner was the affiant for the search warrant.

[40] In Ruling No. 4 I held that the search warrant was facially invalid for the purpose of conducting a technological examination of the cellphone because it simply authorized the police to seize the cellphone from the evidence locker where it was being stored. The warrant itself did not provide for a technological examination of the contents of the phone or that it could be searched for contacts or other data.

[41] The problem, however, was with the warrant, not the ITO in support of the warrant. Significantly, for the purpose of the s. 24(2) analysis, I ruled that the ITO could have supported a warrant drafted in terms which provided for the technological examination which was undertaken. As I said at paras. 281 and 283 of Ruling No. 4 - that would have led to discovery of the PDF.

[42] I pause to add that throughout the proceedings counsel and I have referred to a warrant which is defective on the basis I found this one to be as a “locker warrant”. I will continue to use that term in that way in these reasons.

[43] Csts. Lawrence Lowe and Tim Burton examined the seized cellphone pursuant to the defective warrant. The PDF download of a mortise lock was found stored on a memory card that was inserted into the phone. The PDF contains diagrams and expanded views of the various components of mortise locks. A similar lock was installed on the front door of the Harrison residence. There was no sign of forced entry at the Harrison residence in relation to any of the homicides. The evidence indicates that both of the applicants used the cellphone.

[44] In addition to the invalid warrant leading to the location of this evidence, I found that there was an additional s. 8 violation because the police failed to do a report to a justice in relation to the data found on the seized phone, as required by s. 489.1 of the Criminal Code. This is not mentioned in Ruling No. 4 because the issue of reports to a justice was not raised until the issues covered by Ruling No. 6 (R. v. Merritt, 2017 ONSC 366) relating to the later search warrant for the CQ-10 computer, came before the court. Once I found in Ruling No. 6 that failure to do a return for seized data constituted a s. 8 violation it was apparent the same reasoning applied in relation to the search warrant for the cellphone.

[45] It has not been established that there was a failure to prepare such a report in relation to the physical seizure of the phone. As far as I am aware the police did do a report to a justice in relation to the warrantless seizure of the cellphone itself. Consequently, the cellphone was under judicial supervision pursuant to a detention order at the time the data was obtained from the phone pursuant to the invalid warrant.

[46] I turn now to a consideration of the three lines of inquiry mandated by Grant.

The Seriousness of the Charter-Infringing State Conduct

[47] There are two linked breaches that are obviously relevant. They are the invalid “locker warrant” which led directly to the finding of the PDF, and the failure of the police to do a report to a justice for the data found as a result. These are the breaches most closely associated with the discovery of this evidence.

[48] As I indicated in the s. 24(2) screening motion (Ruling No. 9), if any additional Charter violations are linked to or associated with the impugned evidence such that the “obtained in a manner” relationship is established between the additional breaches and the impugned evidence, such breaches must be taken into account. In Ruling No. 9 I referred to the “Goldhart test” as a short-form reference to the principles set out in cases such as R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, [1988] S.C.J. No. 44; R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, [1996] S.C.J. No. 76; R. v. Plaha, 2004 CanLII 21043 (ON CA), [2004] O.J. No. 3484, 188 C.C.C. (3d) 289 (C.A.); and R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561.

[49] Applying that approach here, aside from the failure to complete a report to a justice in relation to the seized cellphone, I do not see any of the additional breaches which are conceded or alleged as satisfying that test in relation to the PDF evidence.

[50] As I concluded in Ruling No. 9, that does not end the matter. Paragraph 75 of Grant must be considered. In terms of a pattern of abuse, the similarity of other breaches will be a factor that could assist in establishing a pattern. Alternatively, other forms of obvious relationship between the additional breaches and the impugned evidence could render the additional breaches relevant. Given these considerations, the second “locker warrant” issued later in relation to the search of the Compaq CQ-10 and the fact that no report to a justice was done in relation to the data seized pursuant to that warrant are relevant. The respondent agrees that these events in relation to the later search of the CQ-10 are aggravating and increase the seriousness of the breaches I have identified which are associated with finding the PDF download of the mortise lock.

[51] The applicants’ stress that both the police and the issuing justice of the peace should have recognized that a search warrant, in the form of a locker warrant, was invalid. They submit this increases the seriousness of the breaches. While I agree that cases such as R. v. Times Square Book Store (1985), 1985 CanLII 170 (ON CA), 21 C.C.C. (3d) 503 (Ont. C.A.) have long held that a warrant must clearly specify what the police are authorized to do, I also observe that in the fall of 2013 the law relating to the searches of computers and cellphones was in a state of flux and not well developed. R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241 had been decided but R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657 and R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, had not. Vu was released on November 7, 2013 after both of the search warrants I have referred to here were issued. While those cases did not deal with the exact issue raised here, they did develop the important and at previous times not readily apparent point that the data stored on an electronic device must be considered separately from the physical device itself. These cases clarified that authorization to seize an electronic device does not provide full authority to examine the device for stored data. This is an important consideration which, in my view, somewhat attenuates this aspect of the applicants’ submission as to seriousness.

[52] The applicants also submit that the seriousness of these breaches is increased because the police continue to obtain and rely on “locker warrants”. They submit that the warrant eventually obtained in this case to search the loaner phone also amounts to a locker warrant. They further submit that evidence of a sample of warrants obtained by the Peel Regional Police more recently in other cases supports their submission that this is a systemic problem. I am unable to agree with these submissions.

[53] I will first consider the warrant for the loaner phone. I dealt with the facts surrounding the provision and retrieval of the loaner phone in Ruling No. 11 (R. v. Merritt, 2017 ONSC 3215) where I rejected the Crown’s submission that the applicants did not have a reasonable expectation of privacy in the loaner phone. That phone is sometimes referred to in the evidence as the “L.G. Flip phone”.

[54] The loaner phone was retrieved from Ms. Merritt on August 31, 2013 when the cellphone seized from her on August 26, 2013 was returned to her following its examination. On September 8, 2013 Cst. Lowe commenced a review of the data on the loaner phone. He did so without a warrant on the direction of the primary investigator, Det. Kristine Arnold (now Det. Sgt. Arnold). Information about a number of phone calls and some text messages was located. None was of significant assistance to the investigation.

[55] Det. Sgt. Arnold testified that at the time she was of the view that the applicants had no reasonable expectation of privacy in the loaner phone. In Ruling No. 11 (R. v. Merritt, 2017 ONSC 3215) I held that the applicants did have a reasonable expectation of privacy in the loaner phone. Consequently, the initial warrantless search of the loaner phone constituted a breach of s. 8 of the Charter.

[56] Although the information found on the phone did not appear to be of value, Det. Arnold testified that she later decided the police should have a further look at the loaner phone. She decided that a warrant should be obtained as a precaution.

[57] The warrant for the loaner phone was issued on November 5, 2013 on the basis of an ITO sworn by Cst. Ciftci (now Det. Ciftci) on November 4, 2013. That warrant contains an Appendix A describing items to be searched for. Four separate paragraphs describe in some detail that the cellphone may be examined to look for stored data of images, and for outgoing, incoming, missed and recent calls as well as text messages, contact lists and other specified data. This is not a locker warrant. It contains much more specificity than the warrants issued to simply seize the cellphone taken from Ms. Merritt from an evidence locker. The warrant for the CQ-10 is similarly that stark.

[58] Det. Ciftci, who acted as the affiant on the warrant used to search the CQ-10 and other devices seized on October 2, 2013, but not for the warrant for the cellphone seized from Ms. Merritt where the PDF was found, testified that the warrant for the CQ-10 was the first warrant for data he had ever done. He also testified that he had done other locker warrants, although no details of such warrants were established. However, he testified that by November 4, 2013 he had been made aware that when the police wished to seize data from an electronic device details of the data to be searched for should be included in the warrant itself. This was just before the judgement in Vu was released. This demonstrates that the police were making efforts to comply with the changing legal environment and tends to undermine the applicants’ submission that locker warrants are a systemic problem.

[59] I also do not agree that the evidence placed before the court about warrants obtained in other cases supports that there is a systemic problem relating to the use of locker warrants to search for data in Peel Region. In this regard the applicants brought an application to have the Court Services Division provide the court with all search warrants issued in Peel Region for 180 Derry Road, Brampton. This is the address where the Technological Crimes Unit (TCU) of the Peel Regional Police is located. It is the place where the evidence indicates most seized electronic devices are stored before they are technologically examined.

[60] Due to various logistical issues related to the privacy policies of the Court Services Division and to the manner in which records of warrants are stored, such warrants could only be obtained within reasonable time constraints for the period from November 24, 2016 to March 8, 2017. Due to various privacy issues it was agreed that I would examine the warrants that had not been executed or which did not result in evidence being found. Executed warrants were provided to the applicants.

[61] The net result of this exercise was that there were 32 warrants issued for electronic devices stored at 180 Derry Road during the period from November 24, 2016 to March 8, 2017. Upon examination I determined that three of them took the form of locker warrants. However, one of those three was re-issued before it was executed so that it no longer fit that description. Consequently, only two warrants within the time frame constituted locker warrants. While this is two too many it does not reflect a widespread systemic problem. Consequently, I am not persuaded on the basis of this argument that the breaches associated with the finding of the PDF are more serious than I would otherwise find them to be.

[62] I note that at the time the phone was seized from Ms. Merritt, Det. Rice told her that the police would obtain a warrant to examine the phone. This shows that the police always intended to comply with the law and to act in accordance with Charter values. They were respecting the applicants’ reasonable expectation of privacy. As held in R. v. Rocha, 2012 ONCA 707, at para. 28: “Applying for and obtaining a warrant is the antithesis of wilful disregard of Charter rights.” The court went on to indicate that the obtaining of a warrant will generally militate in favour of admitting the evidence.

[63] It is also significant that the ITO was capable of supporting a warrant that would have led to the finding of the evidence. In Ruling No. 4 I examined the ITO in some detail. The police placed a considerable amount of evidence before the authorizing justice and made it perfectly clear to the justice of the peace that they wanted to conduct a full technological examination of the cellphone to look for specified items that had evidential value in the context of the case. While downloaded PDFs were not mentioned, the PDF would have been found in looking for the other items. Its evidential value was obvious.

[64] I have already mentioned that the law was in a state of development in terms of understanding the separate nature of data from the device itself. While the error with respect to the warrant itself was significant, in the circumstances it was understandable. Despite the error it is clear the police were acting in good faith by seeking a warrant and marshalling a considerable body of evidence capable of supporting a warrant for just what was done.

[65] In terms of the failure to do a report to a justice, I take note of the following. I am advised that until my Ruling No. 6 in this case was released counsel were not aware of any cases that clearly stated that a report to a justice was required for seized data, particularly in circumstances where the physical device was properly in police custody. The applicants have not established that a report to a justice was not completed in relation to the cellphone itself.

[66] Crown counsel also point out that one of the few authorities available to the police at the time, which “somewhat addressed the issue”, was R. v. Barwell, [2013] O.J. No. 3743 (O.C.J.). There Paciocco J. (as he then was) seemed to suggest, at para. 18, that a detention order pursuant to s. 490 of the Criminal Code, (which flows from a report to a justice pursuant to s. 489.1 of the Code), applies to detention of an electronic device and not to the image of the data stored on it.

[67] Having regard to all that I have said and to all of the circumstances, I see the breaches associated with the discovery of the PDF as falling at the lower end of the scale of seriousness.

[68] Clearly there were a number of other s. 8 breaches in this case that I have not referred to here. I have not referred to them because I am satisfied that, beyond demonstrating that there were a number of problems with Charter compliance in this case, several of which I consider to be quite serious, I do not see them as significantly altering my view of the seriousness of the violations under consideration at the moment. I take them into account, in the sense that I am aware of a constellation of s. 8 violations. In that general sense there is a pattern. However, given the efforts of the police to comply with the law by making genuine attempts to obtain a valid warrant pursuant to a sufficient ITO, those other violations do not have much impact on the seriousness of the violations I am assessing at the moment.

[69] The other violations occurred later and were not directly related to obtaining this evidence. While Det. Ciftci is implicated in other challenged searches he was not the affiant in relation to the warrant for the cellphone seized from Ms. Merritt; Cst. Meisner was. Nor were the other officers who figure in the matters that will be discussed below involved in this aspect of the case. The one exception to that is Det. Sgt. Arnold. However, her role in relation to this cellphone warrant was limited to directing that a warrant be obtained. As such, she was complying with the Charter.

[70] As the particular violations under consideration fall towards the lower end of the seriousness spectrum even after taking all other violations and circumstances into account, the first Grant line of inquiry tends to favour admission of the evidence.

The Impact on Charter-Protected Interests

[71] The respondent concedes in its factum that courts have consistently held that individuals enjoy a high expectation of privacy in relation to personal electronic devices, including smartphones. The applicants refer to R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 105, where Fish J. described the nature of the highly personal information often found on computers. No one suggests that similar considerations do not apply to a personal smartphone. As the interest protected by s. 8 is the reasonable expectation of privacy, it is clear that the search of the applicants’ cellphone had a very significant impact on the applicants’ Charter-protected interests.

[72] In addition, as counsel for Mr. Fattore point out, there were repeated breaches of the applicants’ Charter-protected interests in this case, particularly in relation to electronic data. Counsel have chosen to advance this argument here rather than under the seriousness of the breaches.

[73] Counsel also mention that the information obtained from this defective warrant found its way into many subsequent ITOs. I note, however, that such information was edited out of other challenged ITOs during the review process. This reduces the impact of this factor.

[74] Counsel again refer to “institutional failure”. They submit there was ineffective screening by justices of the peace during the preauthorization process, leading to the issuance of warrants that should not have issued in the form of locker warrants. I have already mentioned the uncertainty or state of flux that existed in the law prior to Vu. Again, counsel chose to advance this submission here rather than in respect of the seriousness of the violations.

[75] I would add that if I included the two submissions made here that might have been made in respect of the seriousness of the breaches to my seriousness analysis, it would not have significantly altered my overall assessment of the seriousness of the breaches.

[76] The respondent submits that the impact of the breaches under consideration is lessened by my finding that there were grounds to examine the cellphone which were set out in the ITO. I agree with this submission. As stated by Cromwell J. in R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 72:

Section 8 of the Charter protects an individual's reasonable expectation of privacy. That reasonable expectation of privacy must take account of the fact that searches may occur when a judicial officer is satisfied that there are reasonable and probable grounds and authorizes the search before it is carried out. If the search could not have occurred legally, it is considerably more intrusive of the individual's reasonable expectation of privacy. On the other hand, the fact that the police could have demonstrated to a judicial officer that they had reasonable and probable grounds to believe that an offence had been committed and that there was evidence to be found at the place of the search will tend to lessen the impact of the illegal search on the accused's privacy and dignity interests protected by the Charter. [Emphasis added.]

[77] I also note that the applicants’ cellphone was returned to them on August 30, 2013. They were only deprived of possession and use of the phone for four days. Though only indirectly related to privacy, this is a factor relevant to the impact the failure to complete a report to a justice had on the applicants’ Charter-protected interests: R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, at paras. 59, 64, 65.

[78] I also note that because the police did not have forensic software which would function on the cellphone seized from Ms. Merritt the police were never able to conduct a full technological examination of the phone. They were only able to view the various screens and menus that a user could see and to then photograph those screens. However, they were able to do a technological evaluation of the memory card inserted into the phone, where the PDF download was found.

[79] Despite the various mitigating factors I have mentioned, I nonetheless see what occurred as a significantly serious violation of the applicants’ Charter-protected interests. While I would not put this near the top of the metaphorical scale, I would put it past the mid-point. My assessment under this line of inquiry favours exclusion.

Society’s Interest in Adjudication on the Merits

[80] As stated in Grant, at para. 79: “Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry … asks whether the truth seeking function of the trial process would be better served by the admission of the evidence, or its exclusion.”

[81] The PDF download remains reliable evidence. Its reliability is not undermined by the breach. While it is not crucial to the Crown’s case it is an important item of circumstantial evidence which is particularly relevant to proof of the planning and deliberation element of first degree murder. It would assist the jury to have this evidence to take into consideration.

[82] The charges the applicants face are very serious. As noted in Grant, at para. 84, the seriousness of the offence has the potential to cut both ways. I take that into account. Given the nature of the breaches under consideration here, where the police tried to comply with the law and swore a fulsome ITO, I see the seriousness of the offence considered under this rubric as tending to favour the admission of the evidence.

[83] Overall, I conclude an evaluation under this line of inquiry favours admission of the evidence.

Final Balancing

[84] The final balancing cannot be conducted with mathematical precision: Grant, para. 86. In my view, a consideration of all of the circumstances leads to a conclusion that the PDF evidence is admissible.

[85] The police tried to obtain a valid warrant. From the outset they intended to comply with the law. They proceeded in good faith. There was a lack of clarity at the time about the need to treat data separately from the device on which it was stored. The Charter-protected interests of the accused were significantly impacted but the impact does not fall at the top end of the scale. The evidence found was reliable and will assist the jury with a difficult issue in a serious case.

[86] I find that the scale tips in favour of admissibility.

Christopher Fattore’s CIBC Banking Records

[87] Mr. Fattore’s banking records were obtained by the police by means of a production order. The Crown conceded that the production order was overbroad but contended that it was severable into good and bad parts, and that the evidence the Crown wishes to tender fell within the “good” part of the order.

[88] In Ruling No. 6 (R. v. Merritt, 2017 ONSC 366), at paras. 168-230, I dealt with all submissions related to the validity and severability of the production order. I concluded that the production order could not be severed into good and bad parts. Consequently, the CIBC banking records were obtained in violation of s. 8 of the Charter.

[89] The production order was issued on September 6, 2013 based on an ITO sworn by Cst. Meisner on September 4, 2013. The order directed the CIBC to produce numerous banking records over the entire period from July 18, 2013 to September 3, 2013. Based on the ITO, the police were most interested in obtaining debit card records which would link Mr. Fattore to the purchase of a pair of running shoes at Walmart the evening before Caleb Harrison’s murder and in finding records which might link Mr. Fattore to a small silver or grey car seen near the Harrison residence on July 18, 2013. The ITO indicated that Melissa Merritt’s mother, Nan Merritt, owned such a vehicle at the time. The ITO also suggested that the police were looking for records that might link Mr. Fattore to other unknown purchases that could be relevant to the murder of Caleb Harrison on August 23, 2013.

[90] In Ruling No. 6 I found that the ITO did contain evidence capable of supporting issuance of a production order for the debit card records related to the purchase of the shoes. The ITO explained that the police had recovered a pair of new running shoes from the applicants’ garbage on August 29, 2013 that they thought might be linked to the murder based on hairs and fibres present on the shoes. They also had records and video from a Walmart store showing Mr. Fattore purchasing such shoes with a CIBC debit card on the evening of August 22, 2013. Mr. Fattore had failed to mention his purchase of the shoes in his otherwise very detailed statement to the police.

[91] The problems with the ITO and the resulting production order related to the efforts to obtain records going back to July 18, 2013 and forward past the date of the homicide to September 3, 2013. I found in Ruling No. 6 that the ITO contained material and misleading omissions with respect to the former and no evidence at all to support the latter.

[92] The misleading omissions related to the observations of a witness, Donna MacCormack, and to the description of Nan Merritt’s car. Cst. Meisner swore in the ITO that Ms. MacCormack saw a small silver or grey car “parked by Caleb’s house on July 19, 2013”. In fact the car was parked down the street, a crescent, and around the curve such that the Harrison residence could not be observed from the parked car. Ms. MacCormack also described the parked car as having some flat black paint features and tinted windows. Nan Merritt’s car had neither. That was left out of the ITO.

[93] The ITO suggested that Mr. Fattore may have been using Nan Merritt’s car to keep watch on the Harrison residence and suggested that debit card purchases might link Mr. Fattore to the car on July 18, 2013. More detail is provided in Ruling No. 6.

[94] I turn to the three lines of inquiry mandated in Grant.

The Seriousness of the Charter-infringing State Conduct

[95] The respondent concedes that this breach is serious. I agree. It would appear that Cst. Meisner did not understand the concepts of “reasonable grounds to believe” and “will afford evidence” based on his efforts to obtain a production order on this record. There was a complete absence of evidence to tie Mr. Fattore to Nan Merritt’s car or the vicinity of the Harrison residence on July 18, 2013. There was a complete absence of evidence which would justify extending the production order past the date of the alleged offence.

[96] Even more concerning is my conclusion that there were material and misleading omissions. Due to the nature of them, it is difficult to conclude that there was not at least a degree of calculation to mislead. Certainly, the ITO, when compared to the witness statements and facts known to the police at the time the ITO was sworn, demonstrate a failure of Cst. Meisner and Det. Sgt. Arnold to make full, frank and fair disclosure to the issuing justice of the peace. Det. Sgt. Arnold testified that she was aware the police had determined that Nan Merritt’s vehicle did not match the description given by Ms. MacCormack. She was aware the production order was being sought. She had a duty to ensure the affiant had such relevant information. The affiant had a duty to be diligent and to check on the accuracy of important information.

[97] As Fish J. said in Morelli, at para. 102:

Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.

By any measure, the police ran afoul of this standard when Cst. Meisner swore the ITO for this production order.

[98] Given these findings I see this as a serious breach. It falls much closer to the top of the scale than the middle. I conclude considerations under this line of inquiry favour exclusion.

[99] Before moving on I wish to indicate that I do not see any other conceded or alleged Charter violations as linked to the obtaining of this evidence. While I take into account that there were a number of other Charter breaches in this case, beyond that general concern, I do not see any other violations which form a pattern that would impact here. I observe that Cst. Meisner was not the designated affiant when most of the subsequent breaches occurred. Det. Ciftci was. I also observe that the allegations of material omission made in relation to the general warrant issued May 31, 2016 occurred three years later.

The Impact on Charter-Protected Interests

[100] I conclude that there was a very significant impact on the Charter-protected interests of the accused. The production order that was issued was far broader than that which could be justified based on the evidence in the ITO. As I held in Ruling No. 6, a production order could have issued for a period of a few days leading up to the homicide on August 23, 2013. Here the police collected all of Mr. Fattore’s banking and financial records for an extended period of time for which there was no justification at all. I observe that banking and financial records can be very revealing of highly personal information. Personal financial records constitute “biographical core” information: Schreiber v. Canada (Attorney General), 1998 CanLII 828 (SCC), [1998] 1 S.C.R. 841, [1998] S.C.J. No. 42, at para. 22; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 47-48.

[101] The respondent submits that the impact on Charter-protected interests is lessened because the police did put forward grounds in the ITO which I found could have supported a much narrower order covering the production of the only evidence the Crown seeks to admit. I am unable to accept that this significantly diminishes the negative impact of what has occurred. The police received records they were not entitled to receive over a period of approximately 47 days when at best they could have legitimately obtained a production order valid for two to three days of that time period.

[102] As the impact on Mr. Fattore’s Charter-protected interests is substantial I find that this line of inquiry also supports exclusion of the evidence.

Society’s Interest in Adjudication on the Merits

[103] Here the charges are serious and the evidence the Crown wishes to tender is reliable banking information confirming the purchase of the shoes. I note, however, that the respondent will have the Walmart security video and other Walmart records to assist in proving that Mr. Fattore purchased the shoes. This line of inquiry perhaps favours admission of the evidence, but in these circumstances, where the Crown has other means of proving the same thing, just barely so.

Final Balancing

[104] Here considerations under the first and second lines of the Grant inquiry strongly favour exclusion while considerations under the third line of inquiry barely favour admission. While not a mathematical calculation, I find the admission of this evidence would tend to bring the administration of justice into disrepute. The affiant’s lack of understanding of basic settled concepts and the lack of candour displayed in the ITO are particularly concerning in terms of the long-term repute of the administration of justice.

[105] This evidence is excluded.

The Internet Search Queries found on the Compaq CQ-10

Narrative Overview of the Breaches Conceded and Alleged

[106] The Compaq CQ-10 was seized from a trailer located on the property of the applicants’ former residence on Mississauga Road on October 2, 2013. The defective locker warrant used to search the CQ-10 was obtained on October 10, 2013 based on an ITO sworn by Det. Ciftci. I found that the ITO was capable of supporting a warrant for a technological examination of the CQ-10.

[107] Cst. Lowe examined an image of the CQ-10 prepared by members of the TCU. That image was made outside the time frame specified in the invalid warrant. In late October and in November of 2013 Cst. Lowe uncovered numerous internet search queries that had been run on the CQ-10 computer. Those search queries went back years and were helpful to the police in their investigation of Bridget Harrison’s death. The issue then arose as to who was using the CQ-10 at the time of the incriminating search queries. Counsel have referred to the subsequent police investigation into that matter as the “attribution inquiry”.

[108] Many of the conceded or alleged s. 8 breaches arise in the context of the attribution inquiry. However, some, particularly those towards the earlier part of the investigation, do not. I will deal with those first below.

[109] Before saying more about alleged breaches related to the attribution inquiry it is helpful to know what was happening in what I would characterize as the middle phase of the investigation.

[110] The police planned to obtain authorizations to intercept private communications pursuant to Part VI of the Criminal Code. Two authorizations were eventually obtained. The first became operational November 14, 2013 for a period of 60 days. The second became operational on January 12, 2014. It remained valid to March 12, 2014. Each of the Part VI authorizations was issued together with associated orders, including a general warrant. The authorizations permitted the interception of email as well as oral and telephone communications.

[111] The applicants had been living on Mississauga Road in Brampton. However, by September 23, 2013 they and the six children had moved to a property in rural Nova Scotia. Therefore, they were living in Nova Scotia throughout the period when their communications were being intercepted. They were arrested in Nova Scotia on January 28, 2014 and returned to Ontario, where they remained in custody.

[112] In September 2013 the police had started an undercover investigation. It involved a fictitious person, Sue Andrews, who pretended to be the head of a charitable group. Police officers posing as Sue Andrews communicated with Melissa Merritt by email. Various forms of charitable financial assistance were provided to the applicants by this means. I dealt with this in detail in Ruling No. 8 (R. v. Merritt, 2017 ONSC 1648).

[113] The police used the undercover operation to arrange to have the contents of the trailer searched on October 2, 2013 (the applicants’ belongings) delivered to them in Nova Scotia. Those belongings were delivered to the applicants on November 14, 2014. That was the day the first Part VI authorization became operational. Sue Andrews had included “gifts” in the load that was delivered. The gifts contained listening devices. The gifts also included a new laptop computer (the Trojan computer) loaded with a spyware called “eBlaster”.

[114] The second Part VI authorization and associated general warrant allowed the police to access the applicants’ email accounts in aid of the electronic interceptions. The email accounts, which were all Gmail accounts, potentially contained communications and other private information outside the date range covered in the Part VI authorizations.

[115] The police became interested in the Gmail accounts. In particular, the police were interested in the fattorefamilyrocks@gmail.com (FFR) account. The interest in the Gmail accounts was related to the investigation generally, and later to the attribution inquiry in particular. The police reasoned that a comparison of the emails in temporal proximity to the internet search queries may yield direct or circumstantial evidence of who was using the CQ-10 when the incriminating search queries were executed.

[116] The attribution analysis can be broken down into two stages. The first stage involved initial efforts to compare the time and date of the search queries to known information external to the CQ-10. This phase ended with the preliminary inquiry.

[117] During the first phase of the attribution inquiry the police were involved in securing the various Gmail accounts in order to prevent them from being deleted or tampered with. The applicants were in custody but the police were suspicious of the involvement of family members who were able to communicate with the applicants. The police were concerned the Gmail accounts could be altered or deleted. They secured the Gmail accounts by changing the login credentials using the applicants’ passwords which were obtained via eBlaster during the first Part VI order. A copy of the FFR account was also downloaded in its entirety and then uploaded to the “shared evidence drive” on a police server.

[118] How all of the foregoing was accomplished and whether lawful authority existed for what was done is behind a number of additional s. 8 breaches, both conceded and alleged.

[119] During this first phase of the attribution inquiry, and in particular in November 2013 and January 2014, the police intercepted a small number of emails that could potentially be subject to solicitor-client privilege. How they responded is also a factor in relation to the additional breaches.

[120] The second phase of the attribution analysis occurred after the preliminary inquiry and continued until shortly before the trial commenced. At the preliminary inquiry it became apparent that there was an issue about whether the time function of the CQ-10 was accurate. That was important as the times of the internet search queries as recorded by the CQ-10 had to be reliable to make comparison to external information, such as work schedules or email activity, useful to the attribution inquiry. A report prepared by a TCU officer (Cst. Lancaster) during the first phase of the inquiry was felt to be inadequate.

[121] The police, with input from Crown counsel, determined to have a further forensic technical analysis of the CQ-10 undertaken. Cst. Chris MacDonald, a forensic computer expert working in the Internet Child Exploitation (ICE) unit, was to do the work.

[122] Cst. MacDonald had been involved in some earlier individual aspects of the investigation. He had installed the eBlaster software on the Trojan computer, trained Cst. Michael Young how to monitor it and had some involvement in the securing and downloading of the various Gmail accounts in February 2014. He was not a homicide investigator and was not a member of the investigative team.

[123] Cst. MacDonald and Cst. Brandt King re-examined the data from the CQ-10 in April 2016. They relied on the earlier defective locker warrant to do so. The applicants challenge these activities on s. 8 grounds.

[124] Cst. MacDonald developed a plan that involved comparing the search queries to activity in the FFR account. A new general warrant to access the FFR account was required for this purpose. Cst. MacDonald testified that he was unaware that such a comparison had already been conducted by Cst. Jeffery Parent during phase one of the attribution inquiry. It is acknowledged that Cst. Parent violated s. 8 when he repeatedly accessed the applicants’ Gmail accounts during phase one of the attribution inquiry.

[125] Cst. MacDonald’s plan was implemented by means of a general warrant issued on May 31, 2016 by Durno J. The general warrant was obtained on the basis of an ITO sworn by Det. Ciftci. Cst. MacDonald was a sub-affiant in relation to the ITO. There are a number of acknowledged problems with that ITO but counsel differ as to their effect.

[126] The FFR Gmail account was downloaded again pursuant to the general warrant. Cst. MacDonald encountered a number of difficulties in doing so. Ultimately, he abandoned his task because he concluded he could not review the email without seeing potentially solicitor-client privileged email.

[127] I return now to the issue by issue resolution of the disputes between the parties. I start with the early part of the investigation where the alleged additional breaches are not associated with the attribution inquiry. I will then move on to stages one and two of the attribution inquiry. I will proceed more or less chronologically.

The Loaner Phone

[128] Earlier, when dealing with the admissibility of the PDF download, I rejected the applicants’ contention that the warrant eventually issued for the loaner phone was a locker warrant. However, other issues remain with respect to the searches of the loaner phone.

[129] It is conceded that on September 3, 2014 Cst. Lowe violated s. 8 of the Charter when he initially viewed the contents of the loaner phone without a warrant on Det. Sgt. Arnold’s instructions. I observe that the issue was whether the applicants had a reasonable expectation of privacy in the loaner phone. Det. Sgt. Arnold said she did not think they did. In Ruling No. 11 (R. v. Merritt, 2017 ONSC 3215) I decided otherwise, but at para. 46 I found it to be a “close call”. In my view this diminishes the seriousness of this violation to some degree.

[130] When Det. Ciftci prepared the ITO for the warrant for the loaner phone he failed to include that Cst. Lowe had previously conducted a warrantless examination of the phone. Det. Ciftci testified that he relied on the team’s briefing notes as a primary source for all of the ITOs he prepared. Daily briefings were held. Individual officers prepared written briefing submissions for presentation at the briefing. The briefing notes were then consolidated and circulated to all members of the team after they were approved by Det. Sgt. Arnold. In her absence the file coordinator or major case manager would approve the briefing notes.

[131] Cst. Lowe looked at the phone on September 3, 2013. He briefed in this activity on September 4, 2013. The briefing notes show that Det. Ciftci was in attendance at that briefing. However, at that time Det. Ciftci was not the designated affiant; Cst. Meisner was.

[132] Det. Ciftci prepared the ITO for the warrant for the loaner phone two months later on November 4, 2013. He testified that he missed the earlier briefing note in preparing the ITO and did not recall what Lowe said at the briefing two months before.

[133] Det. Ciftci’s explanation is that this was an unintentional oversight on his part, rather than a deliberate attempt to mislead. His explanation is reasonable in the circumstances. This was a fast paced investigation at that time. The consolidated briefing notes are voluminous. Det. Ciftci was not the dedicated affiant at the time of the September briefing and, therefore, that part of the oral presentation would not have been of extra importance to him at that time. However, as we shall see, there is a pattern of Det. Ciftci missing things in briefing notes which had the potential to impact negatively on the issuance of warrants.

[134] Nonetheless, this was still a material omission. The respondent concedes that on the basis of what was said by Code J. in R. v. Brewster et al., 2016 ONSC 4133, at paras. 41-46 and 2016 ONSC 8038, at para. 73. I agree.

[135] I also agree with the respondent’s submission that, based on R. v. Paryniuk, 2017 ONCA 87, at paras. 42-47, and as discussed by Code J. in Brewster, the first question is whether the warrant could have issued despite the material omission. I am of the view, based on the ITO considered as a whole, that even if this unlawful search had been made known to the justice of the peace the warrant still could have issued.

[136] This is not a situation where it has been established that there was an improper motive or a deliberate intent to mislead: Paryniuk, at paras. 62, 69. Det. Ciftci should have been more careful but in these circumstances his error does not result in the warrant’s invalidity. This does not amount to an additional violation of s. 8 of the Charter.

The September 9, 2013 Perimeter Search

[137] It is common ground that Cst. Jeffrey Parent and Cst. Birnie conducted an unreasonable perimeter search at the applicants’ residence at 8568 Mississauga Road on September 9, 2013. Cst. Birnie was not called as a witness. Cst. Parent testified about what they did and why. Det. Sgt. Arnold and Cst. Lowe also gave relevant evidence.

[138] On September 8, 2013 a tracking device installed on the applicants’ van showed that the van was in Nova Scotia. Based on all the evidence I infer the police wanted to determine whether the applicants had moved to Nova Scotia or were just visiting.

[139] On the morning of September 9 Cst. Michael Young was tasked to attend the children’s school to see if there were plans for the children to return. Cst. Parent initially testified that he and Birnie were tasked to go to the applicants’ residence “to see if they were there”. In the totality of the circumstances I conclude he meant that they were tasked to see if the applicants still lived there.

[140] Cst. Parent testified that he and Birnie knocked at the front door to the residence. When there was no answer they walked around the house. They looked in the windows. Parent said he observed fish in a fish tank and furniture. They looked in the garage windows and checked all the doors to the house. Significantly, Cst. Parent used his cellphone to photograph all the door locks. He then sent those photographs electronically to the file coordinator, who at that time was Cst. Walker.

[141] The applicants cross-examined Cst. Parent by suggesting that he had been tasked to conduct general reconnaissance on the residence with a view to determining a means of entry for the purpose of placing probes should a Part VI authorization be issued. He denied all such suggestions.

[142] Det. Sgt. Arnold testified that when this occurred she was on vacation out of the country. She said she was contacted while she was away about another aspect of the investigation but testified she was completely unaware of these events. She did agree that the senior officers on the team were contemplating a Part VI application and acknowledged that information about locks could be helpful.

[143] This perimeter search, on its own, represents a serious violation of s. 8 of the Charter. Csts. Parent and Birnie had no authority to do what they did. The expectation of privacy in a private residence is obviously very high.

[144] No evidence was developed as a result of this unreasonable search and the question becomes how it should be considered in the current exclusion analysis. The applicants submit that this perimeter search has added significance because Cst. Parent fabricated evidence to come up with an explanation about why he photographed the locks. They submit he gave untruthful evidence on this application in relation to this matter.

[145] Cst. Parent testified that he took the photographs because he did not feel he could adequately describe the locks. However, he also testified that he took the photographs because Cst. Lowe telephoned him while he was at the residence and asked about the locks. Significantly, he did not say that Cst. Lowe told him that he (Lowe) had found a PDF of a mortise lock on the phone seized from Melissa Merritt.

[146] Cst. Lowe found the PDF of the mortise lock on the applicants’ cellphone on September 9, 2013. However, he did not find it until the afternoon. Parent and Birnie arrived at the Mississauga residence at 8:59 a.m. and had left by approximately 9:30. Cst. Lowe testified that he did telephone Cst. Parent and asked him about the locks on the applicants’ residence but he was certain he did that on September 10, 2013.

[147] The question arises as to whether Cst. Parent is telling the truth or whether he and/or Cst. Lowe are mistaken about when the phone call occurred. I pause to point out that in Ruling No. 7 I was critical of Cst. Lowe’s poor notetaking and his lack of attention to his duties. I would add that based on Parent testifying before me over four days on two different occasions in relation to various matters, I find he also had poor recall and often made poor notes.

[148] This conflict in the evidence goes back to the preliminary inquiry. By way of background, Cst. Parent testified that he was pulled into this homicide investigation from other uniformed duties because this investigation required additional resources. He had only a few months of prior experience in criminal investigation. The only special squad he had ever been on was the bicycle patrol unit. This was his first major investigation. I infer that he had little or no experience testifying in a serious case.

[149] Cst. Parent said that at the time of the preliminary inquiry he was notified that he would be called at a discovery instead of the preliminary inquiry. He was simply told that he would be cross-examined by defence counsel and that he should prepare. He said that he thought he had prepared but on the first day he realized he was very ill-prepared for what he encountered.

[150] On the first day of his discovery testimony, February 3, 2016, he could not even remember that he was with Cst. Birnie on September 9, 2013. He agreed that his notes were “atrocious”. He had little to no recollection of what occurred.

[151] Cst. Parent testified that after the first day of his testimony he reviewed additional material to further prepare. This included briefing notes. On the second day of his discovery testimony, February 4, 2016, he testified that he believed Cst. Lowe called him while he was at the applicants’ residence and asked about the locks. This led to his photography. When he testified on this application he said he had a clear recollection of Lowe calling him while he was at the applicants’ residence.

[152] In cross-examination on this application Mr. Hechter suggested that Cst. Parent had fabricated the account he gave on the second day of the discovery because he had seen in the briefing note prepared by Cst. Lowe that Lowe said he found the PDF of the mortise lock on September 9. However, Mr. Hechter suggested Parent was caught in a lie because it was only in Cst. Lowe’s personal notebook that he recorded finding the PDF after 12:30 p.m.

[153] Cst. Parent responded by saying that he only used his own briefing note to refresh his memory before the second day of his discovery. He said he did not have the consolidated briefing notes and got his submission for the briefing from his personal computer folder.

[154] After Cst. Parent had testified for two days on this application many additional police emails were disclosed. Cst. Parent was one of the witnesses recalled as a result. The emails show that on a number of occasions Cst. Parent was sent the entire consolidated briefing notes. On occasion he requested them. He testified this happened when he was working on something specific and needed to look more deeply into a specific matter. One of the disclosed emails (Exhibit 18) shows that a set of the consolidated briefing notes was sent to Cst. Parent’s email account at 8:39:16 on the morning of his first day of discovery testimony. I observe, however, that this extensive document was sent with little time for possible review. Cst. Parent maintains that he did not read Cst. Lowe’s contribution to the briefing or fabricate evidence in response.

[155] Having considered all of this evidence as well as some not mentioned here about Cst. Parent’s interview of the applicants’ landlord, I am not persuaded that he is fabricating. As previously mentioned, I have had a very considerable opportunity to observe Cst. Parent and how he responds to questions.

[156] In my view, Cst. Parent was a fairly inexperienced officer when he ended up working on a complicated homicide investigation. I formed the impression from all of his testimony that he was also resourceful. Left to his own devices he came up with investigative approaches that made sense from the perspective of developing evidence, but which were not Charter compliant. This is apparent in his contribution to the attribution inquiry related to the CQ-10. During that work he repeatedly violated the Charter by going into the Gmail accounts. He did not try to cover it up or minimize it, he just told us what he did. He thought authority to do so existed. He said he thought looking at the email for the attribution inquiry was a good idea until he came here. Nor am I persuaded by the applicants’ submissions that Cst. Parent’s poor memory is calculatingly put forward as a deceptive smoke screen.

[157] I would point out that it is possible that either Cst. Lowe or Cst. Parent are wrong in what they testified to about the timing of the telephone call by Lowe. However, I do agree that it makes more sense that Lowe would have called Parent after finding the PDF of the mortise lock. I think that is probably what happened. I find support for this in an email recently disclosed which shows that Cst. Parent sent the photos of the locks to Cst. Lowe at 2:17 p.m. on September 10, 2013 (New Email Disclosure, Vol. 1, tab 3).

[158] Based on what I have said so far I conclude it is most likely that, in trying to reconstruct what happened in the wake of the first day of his disastrous discovery testimony, Cst. Parent has simply remembered incorrectly. Both his memory and his notes are generally poor. However, he testified that he still thinks that Lowe called him on September 9, 2013.

[159] There is another matter that should be mentioned here. The recently disclosed material shows that Cst. Parent submitted a briefing note for his activities on September 9, 2013. The last line of what he submitted referred to his photographing the locks. Somehow, that line has been omitted from the consolidated briefing notes. I am satisfied Cst. Parent is not responsible. His own notes say that he photographed the locks.

[160] This is not the only situation where there is some degree of mystery about something significant that has been either omitted from or added to the consolidated briefing notes. Det. Sgt. Arnold had the power and responsibility to edit the notes for accuracy. It would also seem the file coordinator could do so.

[161] Documents from the investigation were put into PowerCase, a case management system. Cst. Matt Cunliffe testified that he was the “PowerCaser” for this file throughout much of the investigation. He explained that he would not alter briefing notes submitted by officers. However, he said cut and paste errors sometimes occurred. Here the missing material was at the end of the briefing note submitted by Cst. Parent. Consequently, it was located in a position that rendered it susceptible to a cut and paste error as the consolidated briefing note was compiled. However, I make no finding that that is what occurred

[162] Det. Arnold testified that she was away on vacation when all of this took place and that she had nothing to do with it. She testified that she was unaware that Cst. Parent had taken photographs of the locks and said that she had never seen them. I take from this that she was unaware that Cst. Parent’s briefing note submission had been edited.

[163] In summary, what occurred on September 9, 2013 was a serious s. 8 violation which produced no evidence. It shows that Cst. Parent did not understand the limits of his authority. That has some relevance here, particularly given Cst. Parent’s other errors. I am not satisfied, however, that he has lied to the court. I think it is much more likely that he is mistaken and now has an ingrained inaccurate recollection.

[164] Cst. Parent submitted a briefing note that revealed his photography of the locks. Somehow that significant piece of information was edited out of his briefing submission. Cst. Walker, who was the file coordinator at the time, was not called as a witness. He would likely have been responsible for approval of the briefing notes while Det. Sgt. Arnold was on vacation.

The Lexar USB Drive

[165] The Lexar USB drive was one of the four devices seized from the trailer on October 2, 2013. Cst. Lowe participated in the trailer search. As he was the technical liaison officer, he submitted the devices, which included the Compaq CQ-10 and the Lexar USB drive, to TCU together with a service request. He did that on October 9, 2013.

[166] On October 10, 2013 Cst. Lowe attended in TCU and viewed some of the contents of the Lexar USB drive. After about 15 to 20 minutes he realized that he may require a warrant and he stopped what he was doing. Nothing he saw was of evidential value. There is no evidence he saw any solicitor-client privileged material. I dealt with what occurred in detail in Ruling No. 7.

[167] Cst. Lowe testified on the application leading to Ruling No. 7 that he went and told Det. Sgt. Arnold (the primary investigator) and Det. Sgt. Cowan (the major case manager) what he had done. He said he discussed it with them in a meeting of some length. Both senior officers testified that they had no recall of such a meeting.

[168] In Ruling No. 7, at para. 179, I held that on the basis of the conflicting evidence before me I was unable to find that the senior officers colluded to cover-up what had occurred. However, as stated at para. 177 of Ruling No. 7, all parties agreed that it was likely that one or more of these officers was not telling the truth when they testified on the earlier application. Who that was could not be determined.

[169] A warrant was obtained on October 18, 2013 to examine all four devices, including the CQ-10 and the Lexar USB. This was the second defective locker warrant. The unauthorized search of the Lexar USB forms part of the same transaction or series of events that led to the finding of the internet search queries on the CQ-10 and it is therefore a breach having direct relevance to the admissibility inquiry under s. 24(2).

[170] The seriousness of this breach is affected to a degree by the following. The four devices had been seized pursuant to s. 489(1)(c) of the Criminal Code when the police were executing a warrant on the trailer. That warrant did not contemplate finding computers or USB drives. Cst. Lowe testified on the original application that when he started to look at the USB drive he was thinking that s. 489(1)(c), which authorized the physical seizure, extended to permit him to look at data on the device. I point out again that this was occurring shortly prior to the release of the Supreme Court of Canada’s decision in Vu. When Cst. Lowe twigged to the potential problem he stopped what he was doing. No further analysis of any of the devices seized on October 2, 2013 was conducted until the invalid locker warrant was obtained.

[171] Based on the foregoing alone I would not place this violation at the most serious end of the spectrum.

[172] However, the fact that it is acknowledged that one or more of the officers likely lied in court about what happened in the aftermath is a factor which significantly increases the seriousness of the breach. As I said in Ruling No. 7, I cannot determine whether it was senior officers acting in concert, or a junior officer who made a mistake. But the fact remains that all three officers cannot be telling the truth.

[173] This lack of candour is related to the fact that what occurred was never included in the briefing notes and it was never brought to Det. Ciftci’s attention before he swore the ITO for the locker warrant used to search the CQ-10. In Ruling No. 7 I found that Det. Ciftci was not aware of what occurred. Clearly someone had a responsibility to record what occurred with the Lexar USB drive. All three of the officers mentioned knew that Det. Ciftci was swearing an ITO. They had a collective obligation to ensure that the designated affiant was in a position to provide full, frank and fair disclosure before the justice of the peace on the ex parte warrant application. There was both an individual and institutional failure here and it is associated with police dishonesty. This makes this matter much more serious.

[174] Having said this, I am of the view that even if this breach had been disclosed, a valid warrant to conduct a technical search of the CQ-10, the Lexar USB device and the other devices could still have issued. Despite that, what occurred in relation to the Lexar USB was an independent s. 8 breach which occurred in the course of the transaction or chain of events leading to the finding of the search queries.

[175] This s. 8 violation, standing on its own, had a significant impact on the Charter-protected interests of the accused. As previously mentioned, it is recognized that a great deal of highly private information can be stored on such devices. I do note that the examination stopped before much of what may have been on the USB was viewed.

[176] If this violation was being considered on its own I would conclude the third Grant line of inquiry would favour admission. The internet search queries are very significant evidence, this case involves serious charges, and this violation alone is not at the most serious end of the scale.

[177] In any event, what I have said about the Grant factors here is not intended to amount to a fulsome s. 24(2) analysis. That analysis must come later after all of my findings of fact have been made. I make these comments here to shed some light on how I see the situation in terms of this breach in isolation. It is very clear that my ultimate analysis in relation to this category of evidence will have to take numerous breaches into account.

The Search of the Compaq CQ-10 and Other Electronic Devices

[178] As previously mentioned, the warrant which issued on October 18, 2013 for the CQ-10 and the other devices was invalid because it was simply a “locker warrant”. From here on I will refer primarily to the CQ-10 as it was the device on which the evidence sought to be excluded was located.

[179] I have also mentioned that I found that the ITO prepared by Det. Ciftci (ITO 24) was capable of supporting a warrant providing for a technological examination of the CQ-10. In view of that finding many of my observations in relation to the seriousness of the breach in relation to finding the PDF on the cellphone seized from Ms. Merritt apply here as well. In both cases the police sought a warrant and marshalled evidence capable of supporting a warrant for a technological search of the device. The previously quoted passage from Rocha applies here as well. This significantly reduces the seriousness of the breach.

[180] I will address a number of issues that arise in connection with the additional conceded and alleged breaches associated with the search of the CQ-10 pursuant to the invalid locker warrant. I will do so under a number of sub-headings.

Failure to Report to a Justice/Extension of Detention

[181] The police did not prepare a report to a justice for the data found on the CQ-10. This is obviously part of the transaction related to obtaining this evidence and it must be taken into account. Again, there are similarities here to what occurred with other data found in other searches and what I have already said about this topic applies equally here.

[182] In addition, Det. Ciftci applied for an extension of the detention order made pursuant to s. 490 of the Criminal Code in connection with the report to a justice made under s. 489.1 of the Criminal Code in relation to the physical seizure of the CQ-10 and other devices. I pause to point out that the fact the police had properly taken that step meant that the physical devices were under court supervision at the time the data was found. This somewhat lessens the impact of the breach arising from failure to make a report to a justice in relation to the data.

[183] When the original three month detention order was about to expire for the physical devices the police had a problem. The Criminal Code required that the applicants be given notice of the request for a further extension. However, at that point the applicants were not aware of the search of the trailer and the police wanted to keep it that way. Delivering the contents of the trailer to the applicants was part of the police undercover operation and would serve to introduce listening devices and the Trojan computer into the applicants’ home. As of December 10, 2013 the police had not been able to obtain a Part VI authorization because the applicants were transient in the Maritime Provinces. They had not settled into a residence and the police did not have an address to use in the proposed Part VI authorization. If the applicants were notified of the application for an extension of the detention order the police investigative plan would likely have failed.

[184] Perhaps unfortunately, the Criminal Code does not provide for a waiver of the notice requirement to extend a detention order in such circumstances.

[185] Faced with this difficulty Det. Ciftci sought assistance from an Assistant Crown Attorney (not Crown counsel on this application). Based on the advice received, Det. Ciftci sought an order waiving the notice requirement. He asked for a nine month extension so that the one year mark from the date of the seizure, beyond which extension of a detention order can only be granted by a Superior Court judge, would not be exceeded.

[186] Det. Ciftci testified that when he appeared before the justice of the peace the justice of the peace consulted the Criminal Code. The justice of the peace then crossed out the reference to an extension for nine months and extended the detention order for one year from the date of the application.

[187] The respondent conceded that the extension order in these circumstances was made without jurisdiction.

[188] I do not see this aspect of the matter as significantly increasing the seriousness of the Charter violation arising from the locker warrant for the CQ-10. Det. Ciftci was trying to take the correct approach. He sought and obtained legal advice. He did not deliberately disrespect any legal provision. He sought only a nine month extension. He asked for judicial approval of a waiver of the notice period. Perhaps the Superior Court would have inherent jurisdiction to do that (I make no determination) but it has not been suggested to me that a justice of the peace could do so. In any event, efforts were made to proceed in a proper manner under supervision of the court. The justice of the peace unilaterally increased the period of extension. This is an unfortunate institutional failure.

[189] I am also of the view that failure to provide notice and the improper one year extension had minimal impact on the Charter-protected interests of the applicants. Had they received notice of the application the extension order almost certainly would have been granted. The data image of the CQ-10 and analysis of other devices took place, for the most part, within a period of extension that could have been ordered. The applicants were charged with murder on January 28, 2014. From that point forward no extension of any detention order was required in relation to the evidence to be used in the prosecution of the case.

Did the Police Activity Exceed the Scope of the Warrant that Could Have Issued?

[190] I have said that a warrant could have issued for a technological evaluation of the computer. In order to assess the degree to which this may reduce the seriousness of the s. 8 breach occasioned by the reliance on the invalid warrant it is necessary to consider whether what the police did in reliance on that invalid warrant fell within or without the scope of the warrant that could have issued based on the ITO. If the police conduct significantly exceeded the scope of any warrant which could have issued, then the fact that a warrant could have issued will have less impact in reducing the seriousness of the breach.

[191] As my reasons at paras. 189 to 212 of Ruling No. 7 reveal, the applicants’ attack on the ITO was rooted in a sub-facial challenge related to alleged misstatements and omissions in the ITO concerning hairs and fibres found on a pair of shoes and in a failure to include information about the operation of the lock on the front door to the Harrison residence. It was not suggested that the ITO was otherwise incapable of supporting a warrant for the type of technological examination contemplated at p. 143 of ITO 24.

[192] It goes without saying that I understand that the warrant, not just the ITO, must set out the permissible scope of the search. While the exercise I am now engaged in is somewhat artificial, it is necessary as the applicants take the position that some of what was done fell outside the scope of any warrant that could have issued on the basis of the ITO. The focus of the applicants’ submission in this regard is on what was done with the CQ-10 by Csts. MacDonald and King in the spring of 2016 when formulating an investigative plan to get a general warrant, during what I have called the second stage of the attribution analysis. However, in order to fully canvass this issue it is necessary to opine on what the warrant that could have issued would authorize and compare that to what was done by various officers over the course of the timeline. These two issues tend to merge together. I will proceed chronologically.

[193] At p. 143 of ITO 24 Det. Ciftci referred to computers being used for the purpose of storage and communication by various means and specifically referred to “research using the internet”. Based on the evidence in the ITO he stated his belief that the computers and USB drives would yield “emails, deleted emails, chat conversations, internet logs, pictures, documents, spreadsheets, telephone contact lists, and deleted information pertaining to these items”. He indicated this would help the police in various specified ways. In my view the ITO could have supported a warrant to search through the CQ-10 and other devices for these categories of information in relation to the specified potential ways in which such information would assist the investigation. I am of the view that an appropriately drafted warrant could have issued to conduct such an examination.

[194] I turn to what the police did in reliance on the invalid warrant. The Agreement Statement of Facts (ASF) (Exhibit 5) specifies, at para. 63, that on October 21, 2013 Cst. Romita of TCU “imaged” the data on the CQ-10. I note that this occurred outside the time constraints on the invalid warrant, which were quite restrictive. The invalid warrant, of course, was drafted in terms of the seizure of physical items from an evidence locker, although it was clear from the ITO that the police intended to conduct a technological examination.

[195] The ASF specifies, at para. 64, that a TCU officer applied a program called “Internet Evidence Finder” (IEF) to the imaged data. IEF categorizes various aspects of internet usage in ways which make it easier for investigators to see what is on the imaged computer and to see searches in clusters along a timeline. IEF also enables an investigator to click on a displayed item in order to access specific searches. Partial descriptions of search queries are displayed. One of the categories organized by IEF is called “parsed search queries”.

[196] A number of officers from the Homicide Bureau reviewed the imaged data, and in particular the parsed search queries. Cst. Lowe did so and found the internet search queries of interest during his work on the data in late October and in November 2013. Cst. Lowe was transferred to the wire room in December and Cst. Parent was tasked with continuing to work with the data.

[197] Cst. Parent was given a hard drive with images of the CQ-10 data on January 23, 2014. He worked on the data and attempted to attribute the internet queries to individual applicants by checking other data from the CQ-10 and also by comparing the data to outside sources. He did that work on many days through at least February, March, April and October of 2014. It was during this work that Cst. Parent improperly accessed the FFR Gmail account. I will return to that later when I deal with breaches related to the Gmail.

[198] Based on my review of all the evidence I am not satisfied that Cst. Parent did anything involving the CQ-10 image that fell outside the scope of the warrant that could have issued. I do note that Cst. Parent’s memory is poor and he has relatively few notes. Cst. Parent had no training to do what he was asked to do. He was tasked and then left to his own devices. This was fraught with risks for the investigation given his lack of investigative experience and technological training. Cst. Parent understood that there was a warrant which authorized what he had been tasked to do in terms of the CQ-10 data. He did not look at it. In re-examination during his second appearance on this application he said he relied on the second Part VI and related orders to access the FFR account.

[199] The ASF indicates, at paras. 69-71, that Cst. Lancaster of the TCU was asked to assist by reviewing the image of the CQ-10 to see if anything could be learned about the use of the computer at the time of certain specific internet searches. He started his analysis of the image of the data on June 3, 2014 and continued his work on it until the middle of November 2014. He made no notes of his work. He prepared a report dated July 18, 2014. Cst. Lancaster was not called on this application. His report is available in an application record.

[200] I am unable to conclude that Cst. Lancaster’s work exceeded the scope of the warrant that could have issued. The applicants did not direct any submissions to this issue.

The Further Examination of the CQ-10 Data by Csts. MacDonald and King in April 2014

[201] When Cst. Lancaster testified at the preliminary inquiry questions arose about the accuracy of the time function on the CQ-10. Such questions led Crown counsel and the senior investigators to consider conducting a further forensic analysis of the CQ-10. This led to what I have termed the second stage of the attribution analysis. Time was of the essence by that point as the trial was to proceed in September 2016.

[202] On March 31, 2016 Cst. MacDonald was approached about doing the further analysis. He was asked to complete it by April 27, 2016 – a period of about 30 days. Cst. MacDonald was a certified computer forensic analyst who worked in the ICE unit and had developed expertise in “attribution” of computer use. On March 31, 2016 Cst. MacDonald was told to focus on the CQ-10, computer usage for time and dates and attribution.

[203] The 30 day time constraint was significant. Cst. MacDonald decided that examination of the “time” function of the CQ-10 could be delegated to Cst. King. The ASF, at paras. 73-74, indicates that both officers relied on the initial forensic image, although Cst. King did perform a “hash value verification” of the image using the hard drive of the CQ-10. This was done to ensure the integrity of the image on which the analysis was performed.

[204] Cst. King did not testify. It is common ground that he spent considerable time looking into the time and clock function on the CQ-10 image. This involved looking at metadata. The applicants take the position that this was not something that would fall within the scope of any warrant that could have issued. They also take the position that what Csts. MacDonald and King did in the spring of 2016, as just described, amounted to a “new search” of the CQ-10 and should be considered as a separate breach from the initial search pursuant to the defective locker warrant.

[205] I am unable to accept these submissions. I will deal with them in reverse order.

[206] I do not see what occurred here as a separate search. Virtually all of the work was done on the original image of the CQ-10 that was made on October 21, 2013. The only thing that involved the original hard drive was the hash value analysis. No evidence has been led as to what was involved in doing that. My general knowledge, derived from other cases, is that this involves running a program to ensure that the image to be worked with has not been altered or tampered with. I cannot and do not take my understanding from other cases into account. In the absence of any evidence I am in no position to conclude that the hash value analysis amounted to a search.

[207] The issue raised concerning the time function of the CQ-10 is more difficult. However, I have come to the conclusion, as submitted by the respondent, that an examination of the metadata relating to the time function of the computer would necessarily be implied in a warrant that could issue on the basis of what is set out at p. 143 of ITO 24. A warrant could have issued to examine the CQ-10 for internet searches and internet search history. A warrant could also have issued which provided for the communications function of the computer, such as email, to be examined. In a forensic context where p. 143 of the ITO specifies the purpose for which the examination would be useful to the investigation, searches would be meaningless if the accuracy of the dates and times of such activities and communications could not be examined pursuant to the warrant. This would necessarily be implied when the warrant was issued in terms which circumscribed the breadth of the permitted search by references to categories of data that could be examined for specific relevant purposes. Such a means of limiting or circumscribing the scope of a search of a computer was approved of in Jones (2011).

[208] Finally, at the time when Csts. MacDonald and King did their work in the spring of 2016, there was a warrant in effect. The warrant of October 18, 2013 had not yet been found to be invalid. Until that occurred it was presumptively valid. The police were entitled to rely on it. For this reason also, I do not see what occurred in the spring of 2016 as being a separate s. 8 breach.

[209] That said, all of the things which the police did pursuant to the invalid locker warrant assist in demonstrating the extent of the impact of the original breach on the Charter-protected interests of the applicants. The police spent many months, over the course of years, combing through data on the applicants’ computers.

[210] I do note, however, that in his testimony on June 1 and 2, 2017 Cst. MacDonald demonstrated his awareness of the need to restrict computer searches. He recognized that computer searches had to be limited to respect the remaining privacy interests of the applicants. He was aware that computer searches differed from other types of searches.

[211] Cst. Macdonald sought out the October 18, 2013 warrant and the supporting ITO before undertaking his time limited task leading up to the general warrant. That reflects his intent to respect the authorization process. The fact that he had to look to the ITO to discern the scope of the search that he thought was permitted is problematic and reflects the nature of the defect associated with the original s. 8 breach. I conclude it must be encompassed within an assessment of the impact of the original breach associated with the locker warrant.

Conclusion under this Sub-Heading

[212] It is apparent from the foregoing that I am not persuaded that the additional police activity exceeded the scope of the warrant that could have issued. I am not persuaded that these aggravating factors alleged by the applicants in relation to the breach directly linked to the search of the CQ-10 have been established.

Monitoring Email/Solicitor-Client Privilege: Factual Background

[213] The first Part VI authorization was issued on November 14, 2012. It permitted the interception of all telecommunications, including email. The FFR account was named as a place of interception and specific mention was made of the Trojan computer.

[214] Cst. MacDonald had installed eBlaster spyware on the Trojan computer. In an email to a number of officers (Exhibit 28) he explained that it would record everything that happened on the computer. Cst. MacDonald testified that he was not part of the homicide team and was not aware of any solicitor-client privilege issues in the case. He made clear that everything would be recorded and assumed that “the wire room” would have the expertise to deal with any solicitor-client privilege issues.

[215] The eBlaster software was configured to send reports to an email account called bell.technician@gmail.com after 60 minutes of computer activity on the Trojan computer. Cst. Michael Young was assigned as the primary monitor for the Trojan. He could log in to the bell.technician account and enter a password in order to print an eBlaster activity report. The eBlaster reports summarized the user activity on the Trojan under categories such as “Online Searches”, “Web Sites Visited” and “Email Activity”. The software also had a “Keystrokes Typed” section.

[216] On November 17, 2013 eBlaster captured the password for the FFR account. This was recorded in the briefing note prepared by Cst. Young on January 21, 2014 (Exhibit 41). Young would be unaware of what eBlaster had captured until he checked the bell.technician account. He checked that account on a regular basis.

[217] Whenever Cst. Young found something of investigative interest in the eBlaster reports he would do two things. He would prepare a briefing note summarizing what was found in order to update the investigative team. He would also type an “Action Response” containing the same information. This would be sent to the file coordinator to be recorded in the PowerCase management system. The file coordinator also kept hard copies and electronic copies for his use in preparing disclosure.

[218] The PowerCase system is used to track all work in investigations conducted under the major case management system. When the primary investigator assigns a task she will, at the same time or soon afterwards, issue an “Action” which is recorded in PowerCase under an assigned number. As tasks are worked on or completed officers prepare Action Responses, including supplemental responses, all of which reference the number of the original Action. The PowerCase system aids in tracking all work in a major investigation. The file coordinator is generally responsible for ensuring that everything is forwarded to be recorded in the PowerCase system.

[219] On November 19, 2013 Cst. Young saw an eBlaster report (Exhibit 50) which revealed that on November 18, 2013 at 10:11:59 p.m. Melissa Merritt typed an email, using the FFR account, to someone named Dan Senior “Re: Estate file”. The message simply read, “Please keep me posted on the next steps”. Ms. Merritt has waived any privilege that exists with respect to this communication on the understanding that the waiver does not extend beyond this communication to other emails where privilege is claimed.

[220] Cst. Young did not know who Dan Senior was. He performed a Google search and learned that Mr. Senior is a lawyer practicing in various areas of the law including family law and estates. Cst. Young reported all of the above to the team in a briefing note and to his superiors in an Action Response.

[221] The police were interested in Ms. Merritt’s inquiry about estate matters relating to Caleb Harrison’s death because it fit one of their theories about a financial motive.

[222] Cst. Young testified that he did not consider whether the communication could be privileged. At that time he believed that solicitor-client privilege only applied to communications with a criminal defence lawyer. Although everything was briefed in, no one on the team raised the potential of a solicitor-client privilege issue. However, the police were well aware of a long standing family law litigation between the applicants and the Harrison family relating to child custody and access issues. They knew lawyers were involved in that litigation.

[223] On December 27, 2013 the police learned through eBlaster that Ms. Merritt had communicated with her parents via email in relation to criminal defence counsel and there was some internet search activity on that subject. It is not suggested that this was privileged but the applicants submit it should have heightened police awareness of the potential to intercept solicitor-client communications via email.

[224] Only during this application was it noticed that there may be another potentially privileged communication on January 6, 2014. This was picked up in the keystrokes section of an eBlaster report. It is not always easy to understand what is happening in the keystrokes section as everything done on the keyboard by the user, including backspacing, is sequentially recorded. The applicants point to the January 6, 2014 email as just one more warning the police had about the potential privilege concern.

[225] On January 15, 2014 Cst. McNulty briefed in that the Harrison family reported that Ms. Merritt had a new lawyer. This was the first time the police had a basis to know that Dan Senior was in fact Ms. Merritt’s lawyer. An eBlaster report for January 15, 2014 shows that on January 14, 2014 something very brief was typed using the FFR account in relation to “Estate file”. This has been redacted by counsel pursuant to a claim of privilege. It appears from the eBlaster report that the person at the keyboard may have back-spaced over the entire redacted portion.

[226] Of more significance is the following. On January 21, 2014 Cst. Young reviewed an eBlaster report for January 16, 2014 for the period from 6:36 p.m. to 11:00 p.m. In the keystrokes section he saw an email which he believed was subject to solicitor-client privilege. He wrote in his notebook that the email was “privileged” and “not recorded”.

[227] Why he wrote “not recorded” in his notebook is not exactly clear. Cst. Young testified that he may have been referring to the fact that the eBlaster report said on its first page that there was no email activity. Cst. Young testified that he had been having trouble with eBlaster. At the beginning he would not only see keystrokes indicating there was email, but would also see the email recorded on the summary first page of the report, plus he would receive a copy of the actual email. After a while he was no longer seeing email activity recorded on the first page and was not getting the emails. However, he would see emails reflected in the keystrokes section of the reports. Cst. Young testified that he had consulted with Cst. MacDonald about this problem and understood it could reflect the applicants taking steps to cover some of their activities by, for example, using the “incognito” feature provided by Google.

[228] There are two reasons why I have referred to this matter. First, it represents a finding of fact by me that when Cst. Young wrote “not recorded” in his notebook he was not necessarily trying to cover up that he had seen email that he thought was privileged. This is important as the applicants allege a general cover-up in relation to the privilege issue.

[229] The second reason is because the evidence clearly establishes that Cst. Young did make a record of the communication which he thought was privileged. He wrote a briefing note and an Action Response, as he customarily did when he found evidence in an eBlaster report, and he disseminated both in the usual way. Therefore, the potentially privileged material was not protected. Rather, it was reported and disseminated amongst the investigators.

The Privilege Issue

[230] The respondent concedes that Cst. Young’s failure to take steps to restrict access to the potentially privileged information recorded in the eBlaster report for January 16, 2014 from 6:36 p.m. to 11:00 p.m. was unreasonable and violated s. 8 of the Charter. The respondent makes this concession irrespective of whether the email was in fact privileged because Cst. Young believed it was privileged and yet did nothing to protect it.

[231] The respondent submits, however, that I should resolve whether the communication, now redacted from the public record, was in fact privileged. The respondent submits that whether the email was in fact privileged impacts the seriousness of this conceded breach of s. 8.

[232] An unredacted version of this email communication was provided to me by counsel for Ms. Merritt for my private viewing so that I might resolve this question. That document was made a sealed exhibit. Having reviewed it, I find that it is covered by solicitor-client privilege. The contents fall within the scope of a communication between a client and her solicitor for the purpose of obtaining legal advice.

[233] I agree with the respondent’s concession that this finding renders the breach more serious than it would have been had I made a contrary finding.

[234] I return to the earlier email composed on November 18, 2013. The respondent does not concede that the police ought to have known that it was privileged. I am unable to accept the applicants’ submission that the police should have concluded that it was.

[235] As of November 19, 2013 when Cst. Young became aware of the November 18 email, the police had no way of knowing that there was a solicitor-client relationship between Melissa Merritt and Dan Senior. Many people have communications with lawyers concerning estate matters in circumstances where no solicitor-client relationship exists. There was nothing about the November 18, 2013 email which suggested that a solicitor-client relationship between Ms. Merritt and Mr. Senior existed or was contemplated. In addition there was no recognition by Cst. Young, or anyone else, that the November email was privileged. I would make the same finding in relation to the brief email recently located in the keystrokes of the eBlaster report for January 6, 2014.

[236] With respect to the January 16, 2014 email, Cst. Young recognized that it may be privileged. At that point he should have stopped reading the report, restricted access to the parts of the report that may have contained privileged information and clearly recorded that potentially privileged material was intercepted. If the investigators wanted to have the privilege issue determined a sealed copy should have been deposited with the court for that purpose. The respondent concedes that all of these steps should have been taken.

[237] The brief email composed on January 15, 2014 which was backspaced over may never have been sent. This would not, however, mean that it may not be subject to solicitor-client privilege if it was intended to be a communication to counsel for the purpose of obtaining legal advice. I am of the view that in all the circumstances, however, it was not unreasonable for the police to fail to recognize that this potential communication was subject to privilege. Even if that was not the case I would not see such failure as significantly aggravating the conceded violation related to the January 16, 2014 eBlaster report, which in itself represents a significant violation of solicitor-client privilege and represents a violation of s. 8 of the Charter.

[238] Cst. Young testified that at some point it was made clear to him that solicitor-client privilege could apply to communications with any lawyer and not just with criminal defence counsel. When that was is hard to determine from the evidence. Cst. Young thought it was likely shortly after January 21, 2014. He was unable to say with any clarity why he concluded the January 16, 2014 email was privileged.

Was There an Attempted Cover-Up Concerning the Interception of Email Subject to Solicitor-Client Privilege?

[239] The applicants submit that the conceded breach regarding solicitor-client privilege is more serious because someone on the investigative team attempted to hide the possibility that privileged email was intercepted. This submission arises in the following circumstances.

[240] As already mentioned, when Cst. Young saw the privileged email of January 16, 2014 he described the contents of that privileged email in the briefing note he prepared and in one of his supplementary Action Responses (A638 sup.). This dissemination of privileged material is one of the foundations for the respondent’s concession of a s. 8 violation.

[241] However, when this application commenced neither Cst. Young’s full briefing note nor his supplementary Action Response had been disclosed to the defence. The applicants had only the consolidated briefing notes. Cst. Young’s contribution to those notes had been edited to remove the references Cst. Young had made to the privileged material in his written briefing submission. Some other related material was also edited out. The consolidated briefing notes do not indicate that any editing had taken place, let alone editing to protect solicitor-client privilege.

[242] Due to this lack of disclosure counsel for the applicants were not aware of any editing when this application commenced. Counsel could only see that there was a place in Cst. Young’s contribution to the consolidated briefing notes for Briefing #86, (held on January 22, 2014 in relation to January 21, 2014), where some information seemed to be missing. The note did not flow logically and it appeared as though there was an extra line of space between two paragraphs.

[243] When the consolidated briefing note was shown to Cst. Young he agreed that something appeared to be missing. As a result of the additional email disclosure, Cst. Young’s unedited submission was discovered as an attachment to an email he sent to Staff Sgt. Todd Leach, who was by then the file coordinator. Cst. Young’s original submission was unedited.

[244] The additional email disclosure also led to discovery of an email from Staff Sgt. Leach to the team, dated January 23, 2014, enclosing the consolidated briefing note for Briefing #86. Cst. Young’s contribution had by that time been edited.

[245] When Staff Sgt. Leach testified for the first time he could not explain what had happened. His evidence was that some other person unknown had done the editing. The suggestion was that Det. Sgt. Arnold was likely responsible because she had final approval over the briefing notes and authority to edit them. Staff Sgt. Leach was firm that he had not edited the briefing note submitted by Cst. Young.

[246] Det. Sgt. Arnold was then recalled to the stand. In her previous testimony she suggested that the unexplained gap in Cst. Young’s contribution to the briefing note for Briefing #86 was a “typo”. When recalled she was presented with the newly disclosed material. She had no satisfactory explanation for the lack of disclosure, denied that she had anything to do with the editing of the privileged material from the briefing note submitted by Cst. Young and said she had no explanation for it. She speculated it may have been a “cut and paste” error. Det. Sgt. Arnold also denied that she was involved in any effort to suppress or cover up that Cst. Young had accessed privileged material.

[247] Over the lunch break that followed this part of Det. Sgt. Arnold’s cross-examination she located still more undisclosed emails. She produced two emails sent by her to Staff Sgt. Leach on January 23, 2014 at 10:30 and 10:32 a.m. forwarding the notes for Briefing #86 for January 22, 2014 (Exhibit 74). The notes included the portions that were later somehow edited out. Another email, Exhibit 44, shows that Staff Sgt. Leach disseminated the finalized and edited notes to the team just under two hours later at 11:49:44 a.m.

[248] By this point the complexion of the application and the focus of everyone’s attention was changing with each new revelation of undisclosed email. I observe that it is perfectly clear that defence counsel requested disclosure of all such email back in June of 2015. Det. Sgt. Arnold and Staff Sgt. Leach were both responsible for disclosure. While various potential explanations have been advanced for the failure of disclosure, it is difficult to comprehend how so many emails and such significant attachments could have been accidentally overlooked in connection with the disclosure process. I will have more to say about this below because there were other failures to disclose that have led to other unexpected revelations that are of considerable significance. For now I confine myself to the situation I am dealing with.

[249] As a result of this final disclosure of emails attention shifted back to Staff Sgt. Leach. He was also recalled. Faced with all of the documentation he testified that he must have been the person who edited the privileged material out of the briefing notes. However, he claimed to have no recollection of having done so. I find such a claimed lack of recollection difficult to accept. He said that he must have done so with the intent of protecting solicitor-client privilege. This was supposition on his part. He said that while he had no recall of altering the briefing notes he thought he would have spoken to Det. Sgt. Arnold about doing that.

[250] Staff Sgt. Leach agreed that it was not just what was obviously privileged that was removed from the briefing notes. He agreed it appeared that someone had read carefully through the note submitted by Cst. Young and removed other bits here and there as well. He did not recall doing that either. He agrees that if he did this he obviously did not make any note of having done so and did nothing to ensure that someone reading what was disclosed would know that material had been edited to protect solicitor-client privilege.

[251] In cross-examination by Crown counsel, Staff Sgt. Leach said he thought he would have made a note if he edited the material. He had no such note. He also thought he would have discussed it with Det. Sgt. Arnold. He has no such recollection. Neither does Det. Sgt. Arnold.

[252] Det. Sgt. Arnold asked rhetorically during her testimony why she would edit the briefing notes to cover up Cst. Young’s accessing of the privileged material when the entire eBlaster report was disclosed to the defence. Crown counsel attempted to lead similar testimony from Staff Sgt. Leach in cross-examination and echoed Det. Sgt. Arnold’s comment during submissions.

[253] Counsel for the applicants point out that the collection of privileged information by eBlaster was buried deep within the keystrokes portion of a very lengthy eBlaster report. It would be very easy to miss in the context of a case such as this, with massive amounts of disclosure. On the other hand, typed briefing notes and typed Action Responses would be easily read, and as originally prepared by Cst. Young, would reveal that privileged information was collected and widely disseminated. I accept the common sense of this submission and find it persuasive.

[254] I have already mentioned that Cst. Young’s notes contained an entry, “privileged” and “not recorded”. I do not overlook that that was disclosed. However, taken literally it was misleading, although I am unable to conclude on the whole of the evidence that Cst. Young was not referring to the problems he had been having with eBlaster.

[255] The respondent agrees that the briefing notes were edited and that there was a failure to disclose the Action Response, “A638 sup.”. The respondent contends that neither necessarily means there was a cover-up, particularly since most of the editing is of the type which would protect solicitor-client privilege. The respondent, however, concedes in its concluding written submissions that “it is troubling that there is not clearer evidence as to what exactly happened…”.

[256] Indeed I find it is very troubling. It is difficult to conceive that such significant editing would occur solely for the good intention of protecting privilege without the very experienced and senior investigators involved here making a note of that and otherwise recording that editing took place to protect privilege. My concern is magnified by the very significant lack of disclosure that has occurred in this case. The disclosure of email was sought in June of 2015. The correspondence requesting it is clear. Defence counsel continued to press for that missing disclosure. Despite that fact, over 1,500 investigative emails, plus attachments, were not produced until after the commencement of this application. The attachments include extensive reports and documents of real significance to the investigation of this case.

[257] The additional disclosure also led to the uncovering of other circumstances that raise additional concerns about a potential cover-up. When pressing for disclosure defence counsel were corresponding with Crown counsel as this application approached. I infer they raised with Crown counsel that a sequential number seemed to be missing in an index to disclosure provided electronically by way of Supertext. The index skipped from MCM20.109 to MCM20.111. MCM20.110 was missing.

[258] Crown counsel sent an email to Staff Sgt. Leach on June 8, 2017. By then this application was well underway. Crown counsel posed a number of questions to Staff Sgt. Leach in connection with Action Responses provided by Cst. Young in relation to Action A638. The questions also asked about whether documents could be deleted from PowerCase. Action Responses prepared by Young under the number “A638 sup.” were routinely prepared by Young and sent to Leach (as file coordinator) whenever he saw something of interest on an eBlaster activity report.

[259] Crown counsel’s email to Staff Sgt. Leach specifically asked about the missing document, MCM20.110. Staff Sgt. Leach specifically answered twice that “MCM20.110 does not exist”. Therefore, he said it was not uploaded to PowerCase. The implication was that as it did not exist it could not be disclosed.

[260] Over the course of a detailed cross-examination by Mr. Hechter on June 19, 2017 it became clear that the documents for MCM20.109; MCM20.111, MCM20.112 et cetera were a series of sequentially dated supplementary Action Responses prepared by Cst. Young under the “A638 sup.” designation summarizing various eBlaster activity reports. Staff Sgt. Leach had to agree that the Action Response prepared by Young, in which he summarized the January 16, 2014 privileged email from Ms. Merritt to Dan Senior (which was not disclosed to defence counsel), fit sequentially into the position of the missing MCM20.110. The cross-examination based on the new email disclosure also established that the Action Response that fit there was sent by Young to Leach. It existed, and if it had been handled as all others had been, it would have been assigned the number MCM20.110. It would have been included in the disclosure made by way of Supertext.

[261] The “MCM” numbers in question were assigned by Staff Sgt. Leach as the file coordinator. He had to agree that he had assigned the number MCM20.110 to something but claimed he could not recall what it was. He also testified that he kept both a hard copy and an electronic copy of all such documents in his own files using the numbers he would assign. He would use those documents when preparing disclosure. The documents would be sent for inclusion in Supertext.

[262] The email from Crown counsel to Staff Sgt. Leach specified that in making any inquiries in order to answer the questions posed by the Crown, Leach was not to refer to the actual document. Leach understood that this was due to concerns raised about privilege on the application. This left Staff Sgt. Leach at a certain disadvantage in answering the question posed. I have taken that into account.

[263] I have already described how when Staff Sgt. Leach was recalled later he agreed he must have edited Cst. Young’s briefing submission, although he had no recall of that. However, there is also this unusual set of circumstances to be considered. Not only were the briefing notes altered without recollection or notation that it was done to protect privilege, but I conclude the Action Response, which also revealed the interception and dissemination of privileged material was assigned the number MCM20.110. Staff Sgt. Leach must have removed that document from both his physical and electronic files. It is very difficult for me to accept that all of these activities, which it is now suggested were done to protect privilege, would escape recollection and lead simply to a statement in response to an email from Crown counsel, “MCM20.110 does not exist”.

[264] This does not add up to the conclusion that the senior officers involved in this investigation were taking now forgotten actions only for the purpose of protecting privilege. It adds up to the conclusion that steps were taken after the fact to impair the potential for the violation of solicitor-client privilege from coming to light.

[265] The additional disclosure has been very revealing. It led to the discovery of what I have described above. As we shall see, it has led to several other discoveries of significant problems with the investigation of this case, a number of which are conceded to constitute violations of the Charter.

[266] What I have described so far in terms of failure to disclose significant problems with the conduct of various police officers involved in this investigation appears to me to be part of a pattern. This pattern of a lack of disclosure contributes to my conclusion that there has been an attempt in this case to cover up, minimize or reduce attention upon various aspects of problematic police activity which occurred in the course of this investigation.

[267] The documentary record developed painfully over the course of this application has gradually narrowed the focus to the point where senior members of the investigative team have been painted into corners. When that has happened they have had to admit that they were aware of something or did something which could reflect adversely on the investigation or which, at the very least, raises suspicion about police conduct in terms of Charter compliance. As with the specific point I am dealing with here, if the senior officers involved were not trying to minimize the existence of or extent and seriousness of Charter-violative conduct, I would have expected them to be much more forthcoming with their evidence. The lack of disclosure and the close relationship between what has only recently been disclosed and Charter-violative conduct smacks of imperfect attempts to cover up or minimize that Charter-violative conduct.

[268] When I look at the specific evidence I have referred to in this section in the context of the nature and extent of the disclosure problems I see in this case as a whole, I conclude there have been attempts by senior officers to cover up and minimize the nature and extent of the problematic conduct of rank and file investigators. Some of those investigators were very inexperienced when it came to technological aspects of investigations, electronic evidence gathering and complicated homicide investigations.

Breaches Associated With the Collection and Review of Email Prior to Applying for the General Warrant of May 31, 2016

[269] This section looks primarily at what occurred in relation to the Gmail accounts between February 1, 2014 and the preparation of the ITO for the General Warrant of May 31, 2016.

[270] Both Part VI authorizations permitted the interception of email. The police were aware of the FFR Gmail account as a result of the “Sue Andrews” undercover investigation, which commenced in the fall of 2013. Consequently, it was referred to in both Part VI authorizations as a place of interception. By the second Part VI authorization the police were aware of the bigcounty2013@gmail.com account and it was added to the second Part VI. A third Gmail account, somewhereandnowhere@gmail.com was not mentioned specifically in either authorization. However, both Part VI authorizations contained a “resort to clause” which would have permitted the interception of emails in email accounts which were not designated in the authorizations but which were used by the applicants.

[271] The Part VI authorizations were time limited and did not permit interception outside the period of the authorizations. Together, the two Part VI authorizations covered the period from November 14, 2013 to March 12, 2014.

[272] Various ancillary orders, including general warrants, were issued together with the two Part VI authorizations. Those general warrants provided that the police could covertly monitor all computer activity, including non-communication based activity. The general warrant associated with the second Part VI order specifically authorized the police to enter the Gmail accounts “to facilitate the interception of emails”. However, that general warrant expired at the end of the period covered by the Part VI authorization. Consequently, it could not authorize access to the Gmail accounts after March 12, 2014.

[273] The applicants were arrested in Nova Scotia on January 28, 2014. A team of investigators travelled to Nova Scotia to effect the arrests, interview the applicants and execute various search warrants.

[274] Det. Sgt. Arnold testified that when travelling back from Nova Scotia she became concerned about preserving evidence in the Gmail accounts. The concern was that the accounts could be altered or deleted via the internet. Although the applicants were in custody, the police had also been investigating some of their family members and in particular Ms. Merritt’s father, mother and brother. Ms. Merritt’s father was a retired police officer with experience in homicide investigation. At one point the police thought he might be involved. I observe that it seems clear that he had been an advisor to the applicants throughout the police investigation.

[275] Cst. Michael Young testified that Det. Sgt. Arnold contacted him at home on February 1, 2014. That was his day off. Both Cst. Young and Det. Sgt. Arnold testified that Young was told to “lock down” the FFR account. Young understood he should log in to the account, change the password and login credentials and download the account to preserve it. Det. Sgt. Arnold later agreed that she must have told Cst. Young to take those steps. However, she said she did not tell him to look into the account or to read any of the emails. This contradicts para. 42 of the ASF, where it is specifically stated that on February 1, 2014 Det. Sgt. Arnold tasked Cst. Young to “covertly access” the FFR account “and review the emails in the account”.

[276] I pause to note this is not the only place where the evidence and the ASF diverge. This problem was canvassed with counsel in closing submissions and it was further agreed that in such circumstances the ASF would prevail.

[277] Cst. Young testified that on February 1, 2014 he used the password for FFR that had been previously captured by eBlaster. He was able to log in to the account but could not download the account to his home computer.

[278] On February 3, 2014 Cst. Young was re-tasked to secure the FFR account. With the assistance of Cst. MacDonald he was able to change the login credentials and download the entire account onto a flash drive. The contents of the account were then uploaded to a shared evidence drive on a police server.

[279] On February 5, 2014 Det. Sgt. Cowan, who was the major case manager in charge of the investigation, sent Det. Sgt. Arnold an email (Exhibit 2) in which he said he had learned that the applicants’ emails extended back to 2010 and that Melissa Merritt did not delete anything. I conclude this information must have been provided by Cst. Young. Cowan said in his email that prior to 2010 the applicants used the somewhereandnowhere@gmail.com account and mentioned that that account was not covered by the general warrants associated with the Part VI authorizations. He then said in the email that he had “Mike grabbing bigcounty today.” This is a reference to Cst. Young. Det. Sgt. Cowan suggested getting a general warrant for the somewhereandnowhere account.

[280] Cst. Young agreed he briefed Det. Sgt. Cowan on Ms. Merritt’s use of somewhereandnowhere but did not recall how he knew of it. I would add here that Det. Sgt. Arnold said that while she issued all tasks (Actions), email was Det. Sgt. Cowan’s “baby”. She claimed that she did not pay much attention to it.

[281] On February 6, 2014 Cst. Young was tasked to secure the somewhereandnowhere@gmail.com account. As recorded in the briefing notes of February 6, 2014 (Briefing #97) he did that by changing the login credentials and password using the applicants’ password and credentials captured by eBlaster from the Trojan computer. His briefing note for that day indicated that the password for bigcounty2013 had not yet been found. He testified that he did locate that password and then similarly locked down the bigcounty2013 account.

[282] At this point I will mention that a considerable body of conflicting evidence was developed about whether it was Cst. Young who changed the credentials and downloaded the FFR account with Cst. MacDonald’s help, or whether Cst. MacDonald did that while Cst. Young watched and learned. Counsel for the applicants put considerable effort into trying to establish that MacDonald was primarily responsible. The purpose of that was undoubtedly to show that Cst. MacDonald, a sub-affiant in relation to the general warrant obtained over two years later, must have been aware of the earlier improper entry into the Gmail accounts.

[283] Cst. MacDonald steadfastly denied that he was involved in securing and downloading the FFR account. He had no notes of that and claimed no recollection. He said the only email account he could recall preserving by downloading was the bell.technician account used to receive the eBlaster activity reports.

[284] I make three observations at this point. First, Cst. Young has made inconsistent statements about who was primarily involved in securing and downloading the FFR account. Contrary to his initial testimony on this application that it was Cst. MacDonald, his briefing note for February 6, 2014 says he was primarily responsible. By the end of his testimony Cst. Young was simply unsure.

[285] Second, the ASF must govern. It indicates at paras. 43, 44, 45 and 50 that Cst. Young was primarily responsible. This discrepancy between the evidence and the ASF was specifically addressed in closing submissions. The ASF governs.

[286] Third, I find that there is a reasonable explanation for why Cst. MacDonald has no notes and no recollection of having any involvement. He was not part of the Homicide Bureau. He had many other duties and was spread thin at a time when officers from all over the police department were reaching out to him for technical assistance and advice. He testified that he would frequently provide it to help out but as he was not part of those other investigations he would not make notes about doing so. Cst. MacDonald also said that as he was not part of such investigations he would not generally inquire into whether legal authority existed to do whatever the other officers were involved in. He assumed that police officers were conducting themselves properly and had legal authority for what they were doing.

[287] It is my finding that Cst. MacDonald did play an assisting role. I base this on Cst. Young’s evidence supported by the briefing notes primarily. However, I am not able to find that Cst. MacDonald’s role was such that he would be expected to have understood the significance of what was going on. In my view he is not fixed with knowledge of any Charter breaches that were associated with this activity. I accept Cst. MacDonald’s testimony that he has no recollection of these events.

[288] The respondent submits that the features of the Part VI authorization and associated general warrants previously referred to, permitted some interference with the applicants’ email accounts to “intercept” or “acquire” emails that fell within the scope of the Part VI authorizations. I understand this to be a reference to the definition of “intercept” in s. 183 of the Criminal Code.

[289] I observe that there is evidence that it is not possible to download only part of a Gmail account. This is important. The respondent submits that the authority provided by the Part VI authorizations implicitly extends to changing the passwords on the Gmail accounts temporarily in order to permit the police to secure the accounts so they could seize the emails within them that were covered by the Part VI authorizations. I note that as part of a Gmail account could not be downloaded the only way to do that would be to acquire the entire account and then eliminate anything that fell outside the scope of the Part VI authorizations from consideration.

[290] The respondent also submits that the police were permitted to “hold the accounts longer based on the doctrine of exigent circumstances and s. 487.11” while they applied for a general warrant to seize the historical emails in the accounts which pre-dated the Part VI authorizations. However, the respondent concedes that the police violated the Charter by continuing to hold the email accounts longer than was reasonable to achieve these objectives.

[291] I am in general agreement with the respondent’s submissions on this point. The Part VI authorizations and associated general warrants permitted the police to intercept all telecommunications and to monitor all computer activity. The evidence before me is that the police were not receiving the incoming emails at the time of transmission. eBlaster was also not always indicating whether emails composed in the keystroke section had been sent, possibly due to the applicants using “incognito” or taking other steps to mask their computer activity. The police were entitled to acquire those communications from the email account during the time period covered by the Part VI authorization and associated general warrants.

[292] The applicants point to evidence that at the time the Part VI applications were being drafted the police had made a conscious decision not to go after the historical email. That is true. However, they were free to take steps to seize the historical email by way of a fresh warrant application after the applicants were arrested.

[293] In my view the police did not need to rely on exigent circumstances to change the passwords to preserve and protect what they were authorized to seize pursuant to the Part VI authorizations and associated general warrants. That is implicit in those authorizations. That had the indirect effect of preserving the historical emails and it also amounted to a seizure of them. However, in these circumstances I am persuaded that although that aspect of the matter was warrantless it was nonetheless a reasonable seizure as it was an unavoidable adjunct of the police preserving the evidence they were entitled to access pursuant to the Part VI orders. That incidental seizure risked becoming unreasonable, however, if the police did not promptly take steps to release what was not covered by the Part VI authorizations and general warrants or apply for further authority to access the balance of the captured material. They did not do so and I agree with the respondent’s concession that the seizure of the historical email therefore became unreasonable.

[294] Given this conclusion it may not be necessary to deal with the exigent circumstances submission. Nonetheless, I would find that exigent circumstances, based on the concern that family members may access and delete the email accounts, have not been established. While Det. Sgt. Arnold had an understandable concern in this regard there was no objective evidence of any imminent danger that evidence would be lost or destroyed as a result of the actions of third parties: R. v. Patterson, 2017 SCC 15, at para. 33. This is a different situation than the one I dealt with in Ruling No. 4 concerning the seizure of a cellphone from Ms. Merritt. In that situation Ms. Merritt was about to leave the police station with a small portable cellphone in circumstances where she knew the police were interested in the contents of the cellphone. Here the email accounts were not transportable, the applicants were in custody and there was no objective evidence that any third party was inclined by the circumstances or otherwise to destroy evidence.

[295] Consequently, I find that the initial actions to change passwords and download the Gmail accounts did not violate s. 8. However, continuing to hold the accounts in police control for longer than was required to obtain authority to deal further with the evidence not covered by the Part VI authorizations did.

[296] There are further issues that must be resolved based on the submissions of counsel that are related to the extent of Cst. Young’s access to the Gmail accounts. Cst. Young acknowledges he accessed the FFR account on February 3, 2014 and a question arises as to whether such access went beyond what was permissible based on the Part VI authorizations.

[297] The respondent acknowledges that on February 3, 2014 Cst. Young had the intent to access the accounts beyond what was permissible but submits that the applicants have failed to demonstrate that he actually did so. The respondent combines this submission with reference to R. v. Clayton, 2007 SCC 32, at para. 48, where the court held that, “Intention alone does not attract a finding of unconstitutionality.”

[298] I am unable to accept the respondent’s submission on this point. Based on the record before me Det. Sgt. Cowan could only have learned that email went back to 2010 as a result of Cst. Young’s actions. I am satisfied on a balance of probabilities that Cst. Young looked into the contents of the FFR account going outside the date range covered by the Part VI authorizations. Cst. Young testified that around the time he reported to Det. Sgt. Cowan on February 5, 2014 he was told, “Maybe we should not be doing this.” He was then told to stop what he was doing.

[299] Cst. Young’s notes indicate that he worked reviewing the contents of the FFR and bigcounty2013 accounts on March 24, 25 and 26, 2014. His notes indicate that he did that in relation to the parts of the accounts “covered by Part VI”. However, that does not mean that his actions were permissible. Cst. Young was accessing the Gmail accounts by going into them through web access on the internet. He was not examining content the police had captured through the transmission process during the course of the Part VI authorizations. It was the general warrant associated with the second Part VI order which had permitted access to the Gmail accounts but it had expired on March 12, 2014. Consequently, the respondent concedes that s. 8 was violated when Cst. Young accessed the FFR and bigcounty2013 accounts after that warrant had expired.

[300] The applicants allege that a similar breach occurred when somewhereandnowhere was accessed. I agree with the respondent’s submission that there is insufficient evidence to demonstrate that occurred. While Cst. Young told Det. Sgt. Cowan that the applicants used somewhereandnowhere@gmail.com before they used FFR, he could not recall how he knew that. There are various possibilities aside from his having accessed that account.

[301] Before leaving Cst. Young’s evidence there is an important matter related to the alleged cover-up which is connected as well to the ongoing disclosure problems I have referred to. This relates to another alteration of Cst. Young’s briefing note before it was placed into the consolidated briefing notes and distributed to the investigative team. However, this time there was an addition to what Cst. Young had originally submitted.

[302] Cst. Young’s contribution to the briefing notes for February 6, 2014 (Briefing #97) describes how he secured the FFR and somewhereandnowhere@gmail.com accounts. The last paragraph of what appears to be his contribution to the consolidated briefing notes reads: “General warrants will be sought to extract and analyze all the emails mentioned above.” This is what the applicants had by way of disclosure when this application commenced.

[303] It is apparent that Crown counsel were also of the understanding that the reference to “General warrants will be sought…” was part of Cst. Young’s briefing submission. Crown counsel cross-examined Cst. Young on this entry in his briefing note. Presumably, the purpose of doing so was to show that Cst. Young understood at that point in the investigation that general warrants would be required to access the historical email.

[304] As a result of the “new disclosure” it became apparent that this reference to general warrants was added to Cst. Young’s briefing submission. When Det. Sgt. Arnold was recalled she said that she likely added this to the briefing note. She said she did not see it as misleading to do so. She felt it would be a “good idea” to have a reference to that requirement in the briefing to remind her that a further general warrant was required.

[305] Clearly counsel on both sides were misled. It also led to suggestions to Cst. Young in cross-examination which were unfounded. There was the potential for this to be unfair to Cst. Young and quite misleading to the court. This was undiscoverable until the additional email disclosure was produced.

[306] This is yet another set of circumstances which I find troubling. Something has been added to a briefing note in a manner which had the potential to mislead and did mislead. The disclosure of the surrounding emails, requested by counsel for the applicants in June of 2015, was not provided until this application was underway and only after persistence by defence counsel. When that disclosure was finally received only then was this misleading addition detected.

[307] Moreover, the addition to the briefing note suggests that Cst. Young was well aware of the legal requirements for a valid search. Yet Cst. Young testified that he did not check on what authority was required or in existence. He assumed it existed. He simply did what his superiors told him to do. The ASF establishes that it was Det. Sgt. Arnold who told Cst. Young to read the emails in the FFR account. She was the one who directed and was responsible for all of Cst. Young’s actions.

[308] I would add the following. Cst. Young is an experienced police officer. However, he testified that he knew little about computers. He said he could turn one on and send an email, but that was about it. Yet he found himself tasked with a number of quite technical duties. He was clearly relying on his superiors to ensure that appropriate authority existed to do what he was instructed to do. Det. Sgt. Arnold altered the record to make it appear that Cst. Young had more understanding of the situation than he did.

Cst. Parent’s Improper Access to the FFR Gmail Account

[309] Cst. Parent took over review of the data image from the Compaq CQ-10 when Cst. Lowe was assigned to the wire room. His task included trying to attribute the incriminating internet search queries to one or other of the applicants. In addition to examining the computer to do so he decided to compare the times of the search queries to data from outside the CQ-10. He thought it would be a good idea to examine any email he could that was sent at around the same time as the search queries to see if that would help with the attribution task. He knew that the police had the login credentials.

[310] Cst. Parent has admitted to accessing the FFR account close to 10 times. He did so over the internet using the changed login credentials and password. He believes he got those from the briefing notes for February 6, 2014. He kept the username and password on a post-it note at his desk. He was uncertain of all of the dates of his access to the FFR account but testified that he definitely accessed the account on April 9, April 24 and October 29 of 2014.

[311] Cst. Parent’s admission of his unauthorized access to the FFR account took Crown counsel by surprise. On August 8, 2016 in preparation for pre-trial applications, Crown counsel sent two emails to Det. Sgt. Arnold and Staff Sgt. Leach asking for clarification about access to the applicants’ Gmail accounts. In the second email Mr. Taylor asked whether anyone downloaded, looked at or read any emails from the accounts that pre-dated the general warrants associated with the Part VI authorizations. Det. Sgt. Arnold responded that, “Nobody would have done anything with regards to these emails without a warrant.” As we shall see, not only did Cst. Parent repeatedly access the FFR account without a warrant, he sent Det. Sgt. Arnold and other officers emails with attachments that showed that he had done just that. Det. Sgt. Arnold had herself used some of that documentation in a report she prepared. Det. Sgt. Arnold testified she had forgotten about that when responding to Crown counsel’s email.

[312] None of this made it into the briefing notes. The documents prepared by Cst. Parent, which revealed what he had done, somehow all failed to make it into the disclosure provided to the applicants. None of the documentation I have just referred to was disclosed until this application was underway. By then pre-trial motions had been proceeding for about seven months. All of this was unearthed by a careful examination of the newly disclosed emails.

[313] I wish to make it clear that Cst. Parent made no attempt to hide what he was doing. He thought authority existed to do it, although he never asked to see it. He knew the police had the login credentials for the account and that he had been tasked to work on the attribution issue.

[314] Cst. Parent explained in his testimony that he did not know how to go about his task. He was reaching out to others on his own to try to figure out what to do. He spoke to Cst. MacDonald and other officers to get some ideas. He even contacted an officer with the OPP and arranged a meeting with her. As Cst. Parent said in his testimony, he thought looking at the emails in the FFR account was a good idea “until he came here”.

[315] Cst. Parent admitted his improper access to the FFR account the first time he testified. This was before the additional email had been disclosed. In cross-examination by Crown counsel during Cst. Parent’s first appearance it was pointed out to him that he was present at the briefing for February 6, 2014 and that Cst. Young’s contribution to the consolidated briefing notes indicated that a general warrant would be required to look at the email. When this briefing note was shown to Cst. Parent he said he must have missed that at the briefing or had forgotten about it. However, we know now that that reference was added to the briefing notes by Det. Sgt. Arnold, almost certainly after the briefing. As a result, Cst. Parent was unintentionally cross-examined in an unfair manner. Again, there was the potential for the court to be misled.

[316] This further highlights the potential problems arising from Det. Sgt. Arnold’s addition to Cst. Young’s contribution to the briefing notes. Cst. Parent would not have been exposed to that information at the briefing because it was likely added afterwards. Cst. Young’s briefing note was sent directly to Det. Sgt. Arnold. She said that was not unusual and often happened when the note had not been delivered until she was waiting to get the approved consolidated briefing notes out to the team. That would be after the briefing itself.

[317] Cst. Parent testified that he did not brief in most of his access to the FFR account because he was not finding anything of significance. However, on October 29, 2014 Cst. Parent located an email of potential significance because it was sent by Melissa Merritt on the night of Caleb Harrison’s death at a time when she told the police she was sleeping. When Cst. Parent testified the first time he said he thought he had briefed in his access to the FFR account with details of his examination of the email on that occasion.

[318] Cst. Parent was challenged on that assertion during cross-examination by Crown counsel. Cst. Parent was directed to the briefing notes at the relevant time and Crown counsel made the point that there was nothing there from Cst Parent. No doubt Crown counsel was trying to contain the damage flowing from Cst. Parent’s admission of improper access by showing that others were not aware of it.

[319] As a result of the new email disclosure provided after Cst. Parent’s first appearance we learned that Cst. Parent did indeed draft a briefing note dated October 29, 2014 which clearly described his unauthorized access to the FFR account (Exhibit 14). That briefing note was sent by email to Det. Sgt. Arnold. For some reason it did not make it into the consolidated briefing notes. For some reason it did not make it into disclosure.

[320] When Det. Sgt. Arnold was cross-examined about why Cst. Parent’s October 29, 2014 briefing submission did not make it into the briefing notes she said it should have been sent to Todd Leach. Yet earlier in her testimony, when it was suggested that it was unusual that Cst. Young’s February 6 briefing note was sent to her, she explained that it was not. She also testified repeatedly on other pre-trial applications that she was always insistent on relevant matters being briefed in.

[321] In addition, given the history of disclosure problems on this application, I can have no confidence that there is not an as yet undisclosed email showing that Parent’s October 29, 2014 briefing submission was sent to Todd Leach or to Cst. Matt Cunliffe who input items into PowerCase.

[322] While the overall onus is on the applicants, the evidential burden on this particular point has shifted in my view. Cst. Parent thought he briefed this in. His draft briefing note exists and it was sent to Det. Sgt. Arnold. Defence counsel have had to scramble to dig what they can out of countless emails which should have been disclosed long ago. I am unable to find as a fact that Cst. Parent’s October 29, 2014 briefing note was submitted in a manner that explains its non-disclosure.

[323] The applicants take the position that the seriousness of Cst. Parent’s breaches arising from his unauthorized review of the emails in the FFR account is aggravated because the police tried to cover up what Cst. Parent had done. The respondent submits that no cover-up has been established. The respondent refers to a number of circumstances in support of its position.

[324] The respondent first points to the fact that Cst. Parent’s notebook entries for April 9, 24 and October 29, 2014 were disclosed to the applicant. According to the respondent’s submission, in those notes Cst. Parent describes cross-referencing the “Gmail” against the “Googles searches”. The notes themselves are not in evidence. While disclosure of the notes is a relevant consideration, I point out that Crown counsel also had those notes and they were nonetheless taken by surprise by Cst. Parent’s admission. I conclude the notes do not clearly indicate what Cst. Parent did. Consequently, this factor is not that persuasive in favour of the respondent’s position.

[325] The respondent next points out that Cst. Parent completed three written reports outlining his analysis of the “hard drive” in which he also makes references to cross-referencing the incriminating search queries to emails in the FFR account. These were forwarded to a number of officers, including Det. Sgt. Arnold and Staff Sgt. Leach. Det. Sgt. Arnold used two of the written reports provided by Parent to prepare a document for Melissa Merritt’s bail hearing entitled “Melissa Evidence”, which she forwarded to a number of officers advising them to read it in case they were challenged on it at the bail hearing. The respondent submits this is inconsistent with a cover-up.

[326] The applicants point to the same documents and history to support their submission that they have established a cover-up. They stress that the police failed to disclose the three hard drive analysis reports, the Melissa Evidence document or the October 29, 2014 briefing note prepared by Cst. Parent. Det. Sgt. Arnold had those documents to assist her in preparing the Melissa Evidence document. The applicants stress that these five significant documents only came to light due to the new email disclosure provided in the midst of this application.

[327] The respondent also relies on the fact that Cst. Parent readily admitted to what he had done and said that he believed he was authorized to do it, as a factor which tends to undermine the applicants’ submission of a cover-up.

[328] Against this background I will consider what occurred in more detail.

[329] As already mentioned, Cst. Parent spent many days, stretched over months, examining data from the CQ-10 and trying to attribute the internet search queries to one or other of the applicants. He was not trained for this type of work and was reaching out to others to try to figure out what to do. In the course of his work he prepared three reports which have been referred to as Hard Drive Analysis 1, Hard Drive Analysis 2 and Hard Drive Analysis 3 – Merritt’s queries.docx (Hard Drive Analysis 3). While Hard Drive Analysis 3 is shorter than the other two reports, all three documents make it perfectly clear that Cst. Parent had been reviewing emails inside the FFR account. Each report included one or more “screen shots” of the inside of the account. The reports are undated but emails reveal the dates on which Cst. Parent sent them to various officers.

[330] In late October 2014 the police were anticipating that Melissa Merritt would bring a bail application. On October 29, 2014 Det. Sgt. Arnold sent an email to five officers, including Cst. Parent, requesting sourced information that could be compiled for use responding to the bail application. Cst. Parent emailed Det. Sgt. Arnold a copy of Hard Drive Analysis 2 on October 29, 2014 at 2:29 p.m. He sent Det. Sgt. Arnold Hard Drive Analysis 3 on October 30, 2014 at 8:39 a.m. He also emailed Det. Sgt. Arnold his briefing note dated October 29, 2014 reporting that he found an email in FFR sent by Ms. Merritt at a time when she said she was asleep on the night of Caleb Harrison’s death. That obviously related to August 23, 2013 (the date of Caleb Harrison’s death) which was well outside the date range of the Part VI authorizations. That briefing note also contained a screen shot of the inside of the FFR account.

[331] On November 3, 2014 Det. Sgt. Arnold emailed her “Melissa Evidence” document to a number of officers including Cst. Parent, Det. Ciftci and Staff Sgt. Leach (who was responsible for disclosure). Melissa Evidence is a very detailed 27 page spreadsheet making extensive reference to the evidence thought to be relevant to the bail application. At pp. 13-15 Det. Sgt. Arnold referred to Cst. Parent’s access to the FFR account and included a screen shot of the inside of the FFR account for a date well outside the scope of the Part VI authorization.

[332] Det. Sgt. Arnold agreed when recalled that she took the screen shot from one of Cst. Parent’s Hard Drive Analysis documents. She said that her error was that she “missed” that Cst. Parent was in the account outside the time frame of the Part VI authorization. Although it was not disclosed to defence counsel, she pointed out that she gave the Melissa Evidence document to the Crown and distributed it to other officers. She said that such actions show that she was not trying to hide it.

[333] When Ms. Myers pointed out that the document itself indicated that disclosure had not been made of the document or of Cst. Parent’s reports, and that the document contained “hold back information”, Det. Sgt. Arnold responded that she had no control over what the Crown did with the document. She meant this as a further indication that she was not attempting to engage in a cover-up.

[334] On the disclosure issue, Det. Sgt. Arnold also said that as Cst. Parent’s work on the Hard Drive Analysis was part of an Action, an Action Response should have gone to Staff Sgt. Leach for disclosure. Arnold had no explanation for the lack of disclosure.

[335] Cst. Parent did send Staff Sgt. Leach an email on September 16, 2014 at 2:02 p.m. forwarding Action Response A674, which dealt with the task he had been given to “Re-analyze Compaq CQ-10 Re Google searches”. Staff Sgt. Leach indexed and disclosed that document. However, its content focused on what was found on the CQ-10 and did not mention reviewing emails in the FFR account.

[336] It was agreed by counsel during Det. Sgt. Arnold’s evidence on June 21, 2017 that the Hard Drive Analysis documents were never sent to the Crown for disclosure. Arnold could only say that she thought this would be part of “general disclosure” through Todd Leach. Det. Sgt. Arnold maintained that, “At the end of the day, I did disclose that document.” She said Staff Sgt. Leach was copied on the email sending the Melissa Evidence document and that disclosure was primarily his responsibility.

[337] Continuing on with the disclosure theme, the evidence establishes the following. It does not appear that Cst. Parent sent Hard Drive Analysis 1 to either Arnold or Leach. When Cst. Parent sent Hard Drive Analysis 2 to Arnold on October 29, 2014 at 2:29 p.m. he did not copy Todd Leach and no reference was made to an Action number in the email or on the attachment.

[338] When Cst. Parent sent Hard Drive Analysis 3 to Det. Sgt. Arnold on October 30, 2014 he did refer to Action 674. However, he did not copy Leach. He then sent Staff Sgt. Leach a copy of that document attached to a separate email on November 4, 2014 at 3:44 p.m. That email does not refer to an Action number, the attached document did not say it was an Action Response and the document was not in the form of an Action Response. The respondent submits that Leach may not have recognized it as something that he should index for disclosure.

[339] When Staff Sgt. Leach testified he said he only understood that he had failed to disclose Hard Drive Analysis 3. He said he had recently informed the Crown of that after Crown counsel had requested disclosure of his and Cst. Parent’s email. When Mr. Hechter suggested that a document titled Hard Drive Analysis 3 made one wonder where 1 and 2 were, Staff Sgt. Leach said he understood those were covered by previously disclosed Action Responses. We now know that not to be the case. I would point out here that if the investigative emails requested by defence counsel in June 2015 had been provided as they should have been, this may all have been uncovered well before this application.

[340] After considering all of this evidence and counsel’s submissions, I conclude that there was no concerted cover-up instituted at the time the Hard Drive Analysis documents were sent to Det. Sgt. Arnold. In fact, I conclude that Det. Sgt. Arnold’s actions demonstrate that she did not understand at that time that going into the FFR account beyond the dates covered by the Part VI authorizations was problematic. This explains why she used portions of Cst. Parent’s reports indicating that he had done so in her Mellissa Evidence document, which she then distributed. My conclusion about Det. Sgt. Arnold’s lack of understanding is supported by the fact that in early February 2014 she told Cst. Young to review the email in the FFR account, leading to that admitted Charter violation.

[341] I also again refer to the fact that Cst. Parent was not trying to hide what he was doing. Much of his work was done in the project room. He kept the password to the FFR account on a post-it note at his desk. Det. Arnold testified that she was always in the project room. She was the primary investigator and it is difficult to imagine that she was not generally aware of how Cst. Parent was going about his work.

[342] It follows that I do not accept as accurate Det. Sgt. Arnold’s characterization that she merely “missed” that Cst. Parent had been inside the FFR when she read his reports and prepared the Melissa Evidence document. That characterization by her is, however, consistent with her later realizing the significance of what Cst. Parent had done. That is my finding. By then the Melissa Evidence document had been disseminated. It seems to me that realization of the potential significance of what Cst. Parent had done came sometime later. This brings me to the missing disclosure.

[343] What makes the entire situation very suspicious is the failure to disclose all five of the documents which show beyond question both what Cst. Parent had done and that Det. Sgt. Arnold was made aware of it. Such knowledge by Det. Sgt. Arnold is an important factor in the s. 24(2) analysis.

[344] I give Det. Sgt. Arnold the benefit of the doubt concerning the veracity of her claim to have forgotten about that when responding to Crown counsel’s email asking whether anyone had gone into the Gmail accounts outside the time frame of the Part VI authorizations. However, against this background, Det. Sgt. Arnold was at least seriously negligent, if not reckless, as well as derelict in her duties, in advising Crown counsel that no one would have accessed the FFR account without a warrant. She at least negligently misled Crown counsel who were trying to properly respond to this application as officers of the court.

[345] The concentrated lack of disclosure that occurred in relation to this matter seems like too much of a coincidence not to have happened, at least in part, by design. The entire context is important. The emails reveal a tangled trail in relation to how Cst. Parent disseminated his three Hard Drive Analysis documents. This tangle renders plausible that the non-disclosure of some of these documents was the result of negligence rather than a deliberate cover-up. I find it very difficult to accept, however, that in an investigation under major case management, all five of these critical documents were accidentally missed during the disclosure process. That is particularly so given the other findings I have made in this case about alterations of the investigative record and about Staff Sgt. Leach responding to Crown counsel that document MCM20:110 did not exist. I am satisfied that some of the non-disclosure was deliberate.

[346] I am also particularly troubled by the fact that Det. Sgt. Arnold responded to Crown counsel’s email of August 8, 2016 by saying that no one would have gone into the Gmail accounts without a warrant, given that in November 2014 she had prepared the Melissa Evidence document which clearly showed that she ought to have been aware of that. I observe that this response was given by Arnold after it was known that the general warrant of May 31, 2016 would be under attack in these proceedings. However, I accept the respondent’s submission that Det. Sgt. Arnold’s actions in disseminating that document is inconsistent with the type of calculating deceit that would be the sign of a concerted cover-up from the beginning. One would not expect Det. Sgt. Arnold to circulate a document which so clearly describes Cst. Parent’s Charter-offending conduct if she was trying to cover that conduct up from the outset.

[347] What I take from these circumstances is that Det. Sgt. Arnold was negligent in understanding and complying with the requirements of s. 8 of the Charter. She was also grossly negligent, and probably reckless, in responding to Crown counsel’s email as she did. In the context of her role as the primary investigator responsible for the supervision of many other officers this has significant implications in terms of the s. 24(2) analysis.

[348] Before leaving this topic there is one other matter that should be mentioned. The Melissa Evidence document was provided to Crown counsel in anticipation of Ms. Merritt’s bail application. The evidence also shows that on June 16, 2014 Cst. Parent emailed a copy of his Hard Drive Analysis 1 document to Crown counsel in connection with the contemplation of certain further investigative steps. I have said that it was clear from those documents that Cst. Parent had been into the FFR account. At one point during these proceedings counsel for the applicants suggested that it may be necessary to hear from Crown counsel as witnesses concerning their state of knowledge, although everyone agreed they wished to avoid that. The experienced Crown counsel involved in this case then stated on the record, as officers of the court, that they had not reviewed these documents to the extent that led to any such understanding on their parts. This was accepted by all participants and we moved on from there.

The May 31, 2016 General Warrant

[349] This section deals with the second stage of the attribution analysis which took place after the preliminary inquiry. I will briefly review what occurred before setting out and dealing with the applicants’ challenges to the general warrant.

[350] As mentioned, at the preliminary inquiry deficiencies in the previous forensic analysis of the CQ-10 conducted by Cst. Gary Lancaster had been identified. Crown counsel who appeared on this application were involved in the decision making that led to the plan to have Cst. MacDonald take on a re-examination of the CQ-10. In addition to being a certified computer forensics examiner, Cst. MacDonald had developed expertise in the attribution of computer usage while working in the ICE Unit.

[351] On April 3, 2016 Cst. MacDonald met with Crown counsel to discuss what was to be done. The work needed to be completed within a 30 day time frame. Cst. MacDonald testified that due to this time restriction he had to maintain a “laser sharp focus” on his task. On April 6, 2016 he sent an email to senior officers and Crown counsel commenting on his task and how he was thinking of going about it. He described this as his “wish list”. By April 14, 2016 his notes say he was making progress. He emailed Crown counsel (Exhibit 58) saying his work would be completed within the 30 day period. He said that the times from the CQ-10 were highly reliable and that most of the internet search queries of interest were surrounded by the user of the computer checking the kijiji website.

[352] Based on Cst. MacDonald’s work it was recognized by mid April that a general warrant would be required so that emails in the FFR account in close temporal proximity to the internet search queries could be examined. Crown counsel then emailed Det. Sgt. Arnold and Staff Sgt. Leach, with a copy to Det. Ciftci, suggesting that a general warrant be obtained to “re-access” the sent emails. Det. Ciftci was then assigned to commence work on an ITO. On April 18, 2016 Det. Ciftci advised Crown counsel that he would send them a draft. Det. Ciftci arranged to meet with MacDonald. By April 26, 2016 Det. Ciftci was working on the ITO.

[353] The general warrant was issued by Durno J. on May 31, 2016. It permitted the police to download the entire mailbox and to analyze the sent and received emails in a time frame consistent with the “Google searches” found on the CQ-10.

[354] After the general warrant was issued it was provided to Cst. MacDonald for execution. Cst. MacDonald gave extensive evidence about difficulties he encountered in downloading and examining the contents of the mailbox. He stopped his examination because he concluded he could not look at the email without potentially seeing privileged material.

[355] After pretrial applications commenced counsel for Ms. Merritt vetted the contents of the FFR account for solicitor-client privilege. There were over 13,000 emails in the mailbox. Emails for which privilege was claimed were segregated on a disk that is a sealed exhibit. I have never been asked to review the privilege claims in relation to that material.

[356] Pursuant to the agreement of counsel the police were then permitted to review the balance of the emails. It was understood that this would not prejudice the positions of either side in relation to challenges to the general warrant. Only one email of significance was found. As that same email was also found in another location its admissibility is not affected by the challenge to the general warrant.

The Bases for the Challenges to the General Warrant

[357] The ITO for the general warrant relied heavily on the evidence gleaned from the search of the CQ-10 pursuant to the invalid warrant issued on October 18, 2013. The respondent concedes that once that evidence is edited out of the ITO the general warrant of May 31, 2016 could not have issued. Consequently, the respondent concedes that the subsequent downloading and examination of the email constituted an unreasonable search.

[358] The applicants submit that this conceded s. 8 breach is aggravated by a number of additional s. 8 violations.

[359] First, they submit that the entire premise behind the application for a general warrant was flawed, that Cst. MacDonald knew or ought to have known that and that had the authorizing justice been properly apprised of those circumstances a warrant could not have issued. This argument is based on technological considerations which I will outline below.

[360] Second, they submit that there were sub-facial defects in the ITO such that it could not have issued. They submit that during his re-analysis of the CQ-10 in April 2016 Cst. MacDonald must have become aware that Cst. Parent had unlawfully accessed the FFR account on a number of occasions in 2014. Cst. MacDonald denies that. The applicants submit his denials are not credible. They submit that as a sub-affiant for the general warrant Cst. MacDonald had an obligation to provide this information to Det. Ciftci for inclusion in the ITO. They further submit that Det. Ciftci knew or ought to have known of Cst. Parent’s prior unlawful searches of the FFR account. They submit that if there had been full, frank and fair disclosure the general warrant could not have issued for these reasons as well. They allege other sub-facial defects which I will deal with below.

[361] Third, the applicants submit that s. 8 of the Charter was violated because the police failed to advise the authorizing judge that the FFR account had been used for email communications which may be subject to solicitor-client privilege. Consequently, no minimization provisions were included in the general warrant to protect such communications.

[362] Fourth, and closely related to the previous point, the applicants submit that Cst. MacDonald acted unreasonably in the execution of the general search warrant by failing to take further steps than he did to protect solicitor-client privilege.

[363] I will deal with each of these submissions in turn.

The Premise for Seeking a General Warrant was Flawed

[364] During his work on the CQ-10 in the spring of 2016 Cst. MacDonald noted a pattern of use that involved the user checking the kijiji website and the FFR account around the time of the internet search queries. He knew that after a buyer learned of a seller through kijiji further communications usually took place by email. Based on his extensive experience, Cst. Macdonald knew that persons using email in such circumstances often signed their own name to such emails. He testified that he believed on the basis of what he had seen that obtaining access to the FFR account would reveal signed emails in close temporal proximity to the internet search strings the police were trying to attribute to one or other of the applicants. That would constitute circumstantial evidence of who was using the computer at the time of the relevant internet search. All of this was reviewed with senior officers and Crown counsel and it was decided to apply for a general warrant to access the FFR Gmail account. A general warrant was required because the content in the body of the emails themselves was not available on the CQ-10.

[365] The applicants submit that the entire plan to obtain a general warrant was fundamentally flawed. This submission is founded on the fact that the Gmail accounts could be accessed from anywhere via the internet by anyone who had the login credentials using any device connected to the internet. Therefore, the applicants argue that looking at the FFR emails would not assist in putting someone behind the keyboard of the CQ-10 unless there were some fragments of the same emails proximate to the search queries found on the CQ-10 itself. Such would be necessary to eliminate the possibility that the proximate email was generated on a different device than the CQ-10, and perhaps operating in a different location. The applicants point out that the police had already searched the CQ-10 image for email fragments in temporal proximity to the search queries of interest and had found none. The applicants submit that if all of this had been revealed to Durno J. a general warrant could not have issued.

[366] In my respectful view, this submission fails to recognize the difference between evidence and the ultimate fact the police were hoping to establish. There were reasonable grounds to believe that, given the observed pattern of kijiji use, email checking and internet searching, at least circumstantial evidence would be gathered which would have a bearing on who was using the CQ-10 to perform the incriminating internet searches. That evidence might be weak or strong but there were reasonable grounds to believe in all the circumstances some evidence would be there. The question of whether it assisted in attribution in relation to the searches would depend on a host of other circumstances and all the other evidence in the case. It would be for the trier of fact to determine the ultimate question.

[367] As Cst. MacDonald put it shortly before the end of the day on June 13, 2017, “context is everything”. He pointed out that if kijiji activity was seen both on the CQ-10 and in the Google Gmail emails at about the same time and both related to the same kijiji advertisement, he would think it was very unlikely that one person was on the CQ-10 and someone else was using a different device to access or pursue the same kijiji ad in Timbuktu. I agree that this chain of reasoning leads to the conclusion that reasonable grounds to believe evidence would be found existed. A general warrant could have issued.

Sub-Facial Defects in the ITO for The General Warrant: Were Cst. MacDonald and Det. Ciftci Aware of Cst. Parent’s Prior Unlawful Access to the FFR Account?

[368] For the reasons that follow I find the answer to this question is “no”.

[369] On April 6, 2016 Cst. MacDonald sent his “wish list” email to senior officers and Crown counsel but not to Cst. Parent. Cst. MacDonald referred to it as a wish list because it was prospective in its view and not necessarily reflective of what happened later. In that email he said he would like the assistance of a homicide team member familiar with the original IEF results. That led to Cst. Parent’s further involvement. Cst. MacDonald also asked to have other material made available that would help with attribution.

[370] Even before the wish list email was sent, Cst. Parent began sending documents to Cst. MacDonald. A great deal of effort was spent cross-examining Cst. MacDonald about his use of those documents and suggesting that he had himself requested information which would have led to him to conclude that Cst. Parent had previously been inside the FFR account without authority. The applicants further submit that some of the circumstances suggest that Cst. MacDonald even asked Cst. Parent for the email, suggesting in turn that MacDonald knew Parent had been inside the FFR account.

[371] Before proceeding further I would mention that Cst. MacDonald pointed out a number of times that he was not part of the team investigating the homicide. He was not versed in the finer details of what legal authority for searches had been granted. He assumed the police were acting lawfully. Cst. MacDonald stressed that he saw his role as that of a forensic computer expert from outside the investigation. His job was to conduct a focused expert forensic analysis of the CQ-10 with the specific aim of attribution, and to do so within a challenging 30 day time frame. This is important background to assessing what Cst. MacDonald testified to about how he handled the various documents sent to him by Cst. Parent.

[372] On April 6, 2016 Cst. Parent emailed Cst. MacDonald his three Hard Drive Analysis documents. On April 7, 2016 Cst. Parent emailed Cst. MacDonald about a meeting and re-sent those documents. On April 11, 2016 Cst. Parent emailed Cst. MacDonald two spread sheets of parsed search queries from the IEF program he had run on the CQ-10. He later emailed a copy of his October 29, 2014 briefing note. He also sent Cst. MacDonald his Action Responses related to his work on the CQ-10.

[373] The Action Responses describe what was found on the CQ-10 but do not indicate that Cst. Parent had been into the FFR account. Cst. MacDonald agreed that parts of the three Hard Drive Analysis documents and part of the October 29, 2014 briefing note would make it apparent to someone with his expertise that Cst. Parent had been into the FFR account.

[374] However, Cst. MacDonald gave what I find to be reasonable and credible explanations for why he did not read the Hard Drive Analysis documents. He testified that he opened one of them but did not read more than the first page or so. He quickly formed the impression that it would be inconsistent with his role as an expert to take this information into account. He testified that he made a conscious decision not to view those documents.

[375] There were several aspects to Cst. MacDonald’s evidence related to this point. He said Cst. Parent was not a forensic computer expert. He could see that Cst. Parent had taken certain information from the CQ-10 and then added in his personal narrative assessment from the perspective of the factual aspects of the homicide investigation. While Cst. MacDonald was not impolite or disrespectful about what Cst. Parent had done, he said that from an expert’s point of view that approach was “backwards”. He needed to conduct a proper forensic analysis that was properly sourced to the computer and which was not influenced by Cst. Parent’s approach, or, as he put it, “noise”.

[376] Cst. MacDonald was strenuously pressed in cross-examination about why he would ask for Cst. Parent’s assistance and then not take advantage of it. It was also suggested to him that the only documents provided by Cst. Parent that he did not look at were those which showed that Cst. Parent was inside the FFR account.

[377] In considerably more detail than I can set out here, Cst. MacDonald explained that he wanted Cst. Parent’s assistance to work on any differences between the results of the updated IEF program MacDonald ran on the CQ-10 in 2016 and the one Parent had run previously. He explained that the suggestions being made to him in cross-examination about how he would have approached his task were not in accordance with an expert’s approach. He explained why he relied on some of the documents Cst. Parent sent him, notably the parsed search queries, but chose not to contaminate his approach to his task by looking at others. He referred to the short timeline and the need to stay very focused on the specific task he had been assigned.

[378] Cst. MacDonald’s responses in cross-examination seemed to me to be logical and consistent with an expert’s approach to his assignment. I found his evidence on all such points to be logical and generally consistent and I accept it.

[379] One area of potential vulnerability in Cst. MacDonald’s evidence on this point should be mentioned. Cst. Parent sent Cst. MacDonald his October 29, 2014 briefing note. That is a much shorter document than most of the others that were sent. Cst. MacDonald readily acknowledged that a “screen shot” included in the briefing note showed that Cst. Parent had been inside the FFR account.

[380] The email chain that references the sending of the October 29, 2014 briefing note to Cst. MacDonald in 2016 is convoluted in that it consists of email from 2014 which had been forwarded in 2014 and was then re-sent two years later. When this came up in evidence I had difficulty understanding from the documentation whether it could be relied upon to show that the attachment in question was included in what was eventually sent to Cst. MacDonald. Counsel eventually showed Cst. MacDonald an email displayed on a laptop computer in the courtroom. Cst. MacDonald agreed the attachment was present when the email was sent to him.

[381] Cst. MacDonald testified that he had no recall of ever having seen the October 29, 2014 briefing note. He said that if he had he would have realized Cst. Parent went into the email account. He said he was not aware of the extent of all the legal authorizations that had been issued in the homicide investigation but he was very aware that s. 8 was engaged when he decided it would assist the attribution analysis to have access to the historical email in the FFR account. He said if he realized that s. 8 had been violated he would have ensured that fact was disclosed and that “curative steps” were taken. I accept his evidence in this regard. Based on a consideration of all of the evidence I am not satisfied that Cst. MacDonald actually read the briefing note. Choosing not to read it would be consistent with the rest of his evidence about how most of what Cst. Parent sent to him was unhelpful.

[382] Cst. Parent has not provided any direct evidence that he told Cst. MacDonald of his previous access to the FFR account. At one point he sent Cst. MacDonald an email saying that he did not have the Gmail. I accept Cst. MacDonald’s testimony that that email does not reflect that he previously asked Cst. Parent for the Gmail because he was aware of Parent’s prior access to the FFR account. Cst. MacDonald also explained that Cst. Parent having the login credentials did not mean that Cst. Parent had been inside the FFR account. Cst. Parent said he obtained those credentials from Cst. Young’s February 3, 2014 briefing note.

[383] Given my acceptance of Cst. MacDonald’s evidence I am not persuaded that he played any part in Det. Ciftci failing to include in the ITO that Cst. Parent had unlawfully accessed the FFR account. Cst. MacDonald was cross-examined about what he did and did not tell Det. Ciftci. As I accept that Cst. MacDonald was not aware of Cst. Parent’s unlawful access to the FFR account I see no need to review that evidence in detail. Cst. Macdonald said he provided Det. Ciftci with information about the pattern of computer usage related to the investigative plan and information about respecting the applicants’ residual privacy interests. He testified that he did not see it as his role to brief Det. Ciftci in detail. He was not a member of the investigative team and felt it was the responsibility of Det. Sgt. Arnold and other senior homicide investigators to do that. Consequently, he did not provide Det. Ciftci with any of the documents Cst. Parent had sent to him. All of Cst. MacDonald’s evidence on this issue is sensible and reasonable and I accept it.

[384] I also find that Det. Ciftci was unaware of Cst. Parent’s unlawful access to the FFR account. There was nothing in the briefing notes which revealed it. There is no evidence from Cst. Parent that he told Det. Ciftci.

[385] The person who clearly knew that Cst. Parent had been inside the FFR account was Det. Sgt. Arnold, as evidenced by her Melissa Evidence document. She clearly knew about it at some point, based on her testimony that she forgot about it when she was asked a direct question about that by Crown counsel. She also kept that from Det. Ciftci. Clearly she should not have. Had Det. Ciftci been aware of that, as he should have been, he would have included that in his ITO for the general warrant. I will deal with the effect that would have had below.

Other Sub-Facial Defects Alleged in the ITO for the General Warrant

[386] The respondent acknowledges that there were a number of sub-facial defects in the ITO. First, at para. 10 of the ITO, Det. Ciftci swore that on February 3, 2014 Cst. MacDonald downloaded the content of the FFR mailbox corresponding to the duration of the s. 186 Criminal Code authorizations. That is incorrect. The entire mailbox was downloaded at that time. Those contents included historical emails going back years before the Part VI authorizations.

[387] The respondent concedes that Det. Ciftci ought to have known this at the time the warrant was sought. I would add that it was clearly stated in the February 3, 2014 briefing notes.

[388] Second, the respondent agrees that failure to disclose Cst. Parent’s prior unlawful access to the FFR account constitutes a sub-facial defect. While I have found that Cst. MacDonald did not know of it, Crown counsel accepts that Det. Ciftci could reasonably have known of this. The respondent makes reference to World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at paras. 122-23 in regard to the appropriateness of this standard. While the respondent did not elaborate on why this standard was met, I would point out that Cst. Parent’s Hard Drive Analysis documents and the Melissa Evidence document prepared by Det. Sgt. Arnold were available to Det. Ciftci. The Melissa Evidence document was sent to him by Arnold attached to an email that told him to read it. He also ought to have spoken to Cst. Parent in the course of preparing the ITO as part of his due diligence in order to make full, frank and fair disclosure.

[389] While the respondent acknowledges these sub-facial defects the respondent submits that even if they were known to the authorizing judge the general warrant could still have issued. While I accept that this is so with respect to erroneously stating that the February 3, 2014 download was restricted to the time frame of the Part VI authorization, I disagree in terms of failure to disclose Cst. Parent’s unlawful access to the FFR account in 2014.

[390] I will deal with this last matter first. It is tied to the Crown’s additional submission that the police were not trying to hide anything about such unlawful access when Det. Ciftci failed to mention it because it makes no sense that the police would go to all the trouble of getting a general warrant to assist in the attribution analysis if they knew that Cst. Parent had already been inside the FFR account and determined that no such emails existed.

[391] With respect, this additional argument advanced by the respondent demonstrates why a general warrant could not have issued had Cst. Parent’s Charter-violative conduct been disclosed. The full, frank and fair disclosure of Cst. Parent’s unlawful access to the FFR account would have demonstrated that the linking emails the police hoped to find in the FFR account did not exist. That would have destroyed the basis for the issuance of the general warrant. It would have demonstrated that there was no objective basis for the reasonable grounds that Cst. MacDonald concluded existed. It was essentially Cst. MacDonald’s belief that was put forward by Det. Ciftci in the investigative plan and grounds section of the ITO.

[392] It follows from the foregoing that while I accept the logic that those circumstances support that Det. Ciftci and Cst. MacDonald did not intend to deceive the authorizing judge, my acceptance of that submission leads inevitably to the conclusion that had this material omission not been made the general warrant could not have issued.

[393] I return to Det. Ciftci’s erroneous statement in the ITO that the February 3, 2014 download corresponded to the dates in the Part VI order. I accept Det. Ciftci’s testimony that this was simply an error on his part and not a deliberate attempt to mislead.

[394] I do, however, conclude that Det. Ciftci was negligent and did not take the care that would be expected in drafting an ITO of this type in these circumstances. The extent of the download was clearly set out in the briefing notes which Det. Ciftci said he relied on. I note that this was not the first time in this investigation where in drafting an ITO Det. Ciftci missed something of importance that was obvious in the briefing notes. There was nothing in the briefing notes which suggested that the February 3, 2014 download was limited to the period of the Part VI authorizations. Det. Ciftci should have sought clarification before stating as a fact something for which there was no basis in the material he relied upon. Affiants have an obligation to make inquiries in such circumstances.

[395] During cross-examination Det. Ciftci was trying to come up with an explanation for his error. He eventually attributed it to Cst. MacDonald. He said Cst. MacDonald told him the download corresponded to the Part VI authorization.

[396] I do not accept this part of Det. Ciftci’s evidence. He has no note to support it. Cst. MacDonald was not specifically questioned on this point. However, Cst. MacDonald’s evidence was that it is impossible to download only a time limited part of a Gmail account. That evidence was not challenged and seems to represent common ground. It makes no sense that Cst. MacDonald would have said otherwise by telling Det. Ciftci the download was restricted to the time frame of the Part VI authorizations.

[397] I also observe that in cross-examination Det. Ciftci eventually said he was not sure that Cst. MacDonald was the officer who told him of the February 3, 2014 download. This introduces a further element of weakness to Det. Ciftci’s assertion and also undermines the further defence submission based on the fact that Det. Ciftci said in his ITO that MacDonald, as opposed to Young, did the February 3, 2014 download of the FFR account. The applicants submitted that as the ITO said MacDonald did that download, it showed that MacDonald must have told Ciftci that, undermining MacDonald’s claimed lack of recollection of any involvement in that earlier download.

[398] I would add that understanding what the Part VI authorizations and associated orders and general warrants permitted, particularly in terms of email, is not a straightforward exercise. There was a real potential for confusion and misunderstanding when discussing such matters in a fluid situation. This could be a basis for some misunderstanding on Det. Ciftci’s part. It was apparent at times during Det. Ciftci’s evidence that, at least at the time of his testimony, he was confused about the nature and extent of the legal authority that existed. Initially he even exhibited some confusion about what the objective was in obtaining the May 31, 2016 general warrant.

Solicitor-Client Privilege and the Validity of the General Warrant

[399] The applicants submit that s. 8 of the Charter was violated because Det. Ciftci failed to advise the authorizing judge, Durno J., that the FFR account had been used to send emails potentially subject to solicitor-client privilege. They submit that this was a material omission and that if it had not been made minimization provisions to protect solicitor-client privilege would have been included in the general warrant. In essence, they submit that the general warrant could not have issued without minimization conditions had proper disclosure been made to the authorizing judge.

[400] While counsel for the applicants put considerable effort into cross-examining Det. Ciftci and Cst. MacDonald on this issue, the concluding arguments on this point were not well developed. I have not been referred to any decided cases supporting the applicants’ position and the precise basis for the applicants’ submission remains unclear.

[401] It is the respondent’s position that minimization conditions were not required in the circumstances because the police had no basis to think that looking at the particular emails they proposed to examine pursuant to the general warrant would likely lead to encountering privileged emails. I have not been referred to any relevant authorities by the respondent.

[402] In these circumstances I commence by making the following observations. Solicitor-client privilege is a hallowed and highly protected class privilege which benefits the administration of justice and society as a whole. The only exception to the privilege is when innocence is at stake. See generally Descôteaux v. Mierzwinski, 1992 CanLII 4732 (NB CA), [1982] 1 S.C.R. 860, 70 C.C.C. (3d) 385; R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445; R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185.

[403] Due to the almost absolute nature of solicitor-client privilege no search warrant may issue for documents or communications which are known to be privileged. Where documents or communications are to be seized from a lawyer’s office special and highly protective rules must be followed. In such circumstances minimization provisions must be included in the warrant and supporting ITO: Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, 2002 SCC 61, [2002] 3 SCR 209, 167 C.C.C. (3d) 1.

[404] It is also instructive to consider the interception of private communications in connection with solicitor-client privilege. Where an authorization is issued to intercept private communications at the offices or residence of a solicitor, or at any other place ordinarily used by a solicitor, s. 186(3) of the Criminal Code specifies that the authorizing judge “shall include” such terms as he or she considers advisable to protect privileged communications.

[405] The first thing I would note is that this is not a situation where these mandatory provisions apply. The general warrant was not being sought for any place that would fall within the ambit of these mandatory minimization requirements. I have not been directed to any case which stands for the proposition that in any situation in which there is merely a reasonable possibility that solicitor-client communications may be intercepted, minimization conditions are mandatory as opposed to discretionary. Support for my view that minimization conditions are not always constitutionally required and are in some circumstances discretionary can be found in R. v. Chambers, 1986 CanLII 22 (SCC), at paras. 29 and 34; aff’d 1986 CanLII 22 (SCC), [1986] 2 S.C.R. 29. That case dealt with s. 178.13(1.2) of the Criminal Code, a forerunner to what is now s. 186(3) of the Code. However, s. 178.13(1.2) was not cast in mandatory terms. Support is also found in R. v. Dorion (2007), 2007 NBCA 41, 221 C.C.C. (3d) 97, [2007] N.B.J. No. 189 (C.A.), at paras. 105-06.

[406] I hasten to add that an exercise of discretion leading to an absence of minimization conditions does not mean that potentially privileged communications are unprotected. As pointed out in Robert W. Hubbard, Peter M. Brauti, Scott Fenton, Wiretapping and Other Electronic Surveillance, loose-leaf (2015 – Rel. 40), (Toronto: Canada Law Book, 2015), at pp. 6-12.16 to 6-12.17, a private communication may be both lawfully intercepted and privileged. The same thing can be said of email seized pursuant to a general warrant.

[407] That may obviously be so in circumstances where the warrant or authorization does not contain any minimization conditions. The law of solicitor-client privilege still applies. Subject only to the innocence at stake exception, communications which are subject to the privilege will be inadmissible in evidence without the need to resort to s. 24(2). Furthermore, due to the nature of solicitor-client privilege, s. 8 of the Charter is clearly engaged. The police must act in a reasonable fashion by taking steps to protect potentially privileged information until the existence of the privilege is determined by the court. Failure to do so is likely to lead to a conclusion that s. 8 of the Charter has been violated. Therefore, even in the absence of minimization provisions, s. 8 of the Charter and the common law protect communications which are potentially subject to privilege.

[408] Against this background I point out the following. Durno J. was asked to issue a general warrant that was fairly restrictive in what it authorized. While the entire mailbox was to be downloaded recall that the evidence indicates that it is impossible to download only part of a Gmail account. However, the general warrant provided for a limited scope of examination of the downloaded material. Pursuant to para. 2(b) of the warrant the police were permitted to “analyse the contents of the sent and received email in a time frame consistent with Google searches identified below” that were found on the CQ-10.

[409] The internet search queries in question are described with specificity in the ITO not the warrant. I pause to mention that counsel have not pursued an argument that the failure to include those dates in the warrant itself would render the warrant invalid. Considered solely from the perspective of whether a minimization provision was required, I point out that the search queries are described in the ITO as all occurring in 2010 and 2011 (paras. 6 and 7) or as occurring between 2010 and 2012 (para. 14(a)). Crown counsel asked Det. Ciftci whether at the time he drafted the ITO he had any evidence or information that the FFR account had been used for solicitor-client communication during that restricted time frame. He said he did not. He was not challenged on that point.

[410] In these circumstances I conclude the applicants have failed to establish that a general warrant without minimization conditions could not have issued had more fulsome disclosure been made to Durno J. Had all the known facts been put more fully before him, Durno J. would have had a discretion to exercise in terms of deciding whether minimization conditions would