CITATION: R. v. South, 2017 ONSC 6356
COURT FILE NO.: CR-16-1727
DATE: 20171024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Darilynn Allison/David D’Iorio, for the Crown
- and -
ADRIAN SOUTH
Steven Hinkson, for the Accused
HEARD: October 4 & 5, 2017
RULINGS ON CHARTER AND VOLUNTARINESS APPLICATIONS
BALTMAN J.
Overview
[1] Mario Barnes was killed in the middle of the night in his home by an intruder who broke into his basement apartment, fired a single shot from the stairs leading down to the living room, and then fled.
[2] Two of Barnes’ friends that were sleeping over in his living room saw the shooter while he was inside the apartment. In their initial interviews by the police, neither eyewitness identified the shooter. However, both eyewitnesses were later recorded telling undercover officers that Adrian South – known to them by his street name “Jax” – was the culprit. One of the two eyewitnesses ultimately identified Mr. South as the shooter to the police and in his evidence at the preliminary inquiry, while the other claimed that he had invented the name “Jax” and that he was unable to identify the shooter.
[3] Police also retrieved DNA from items discarded in the area that match a sample taken from Mr. South.
[4] This shooting occurred on August 17, 2013. The investigation into Mr. South revealed that in November 2012, nine months prior to the killing, he provided a cell number of 647-208-3990 to Toronto police officers who had encountered him drinking beer in a stairwell in a Toronto Community Housing building that he was visiting. A subsequent production order for the records pertaining to this number showed it was registered in the name of “John Smith”, and demonstrated that on the night of the shooting someone using that phone had travelled into the vicinity of the victim’s home just minutes before he was killed.
[5] Police then pursued further evidence to establish whether the “John Smith” phone number in fact belonged to Mr. South. They sought and were granted a production order requiring Ontario Works to provide the phone number on file for Mr. South at the time of the shooting, which was 647-208-3990.
[6] Mr. South has been charged with first degree murder. Amongst other pre-trial applications, Mr. South asserts that his interaction with Toronto police in the stairwell of the Community Housing building (the “stairwell statement”) amounted to a constitutional detention. He maintains that because he was not cautioned or given his rights to counsel, any information elicited, along with the phone records that followed, were obtained in violation of ss. 8, 9 and 10 of the Charter and should be excluded from evidence. Additionally, he argues that any statement he gave was not voluntary.
[7] Mr. South also claims that by obtaining his phone number along with his social assistance records from Ontario Works, police violated his rights under s. 8 of the Charter, and therefore those records should also be excluded.
[8] Shortly after the pre-trial motions were heard, and in order to allow the trial proper to proceed, I provided counsel with my conclusions on the applications, with reasons to follow. These are my reasons, and they are divided into two parts: the first part concerns the stairwell statement, i.e. Mr. South’s provision of his phone number to police before the homicide occurred and the production order granted for the records for that number. The second part concerns information shared between Ontario Works and the homicide investigators prior to the issuance of a further production order on Ontario Works.
[9] I shall deal with each part separately.
Part 1: The Stairwell Statement
Legal Framework
a) The Law of Detention
[10] Section 9 of the Charter grants individuals the right “not to be arbitrarily detained or imprisoned”. When people are detained or arrested, they must be promptly informed of the reason therefore (s.10(a)), and of their right to “retain and instruct counsel without delay” (s.10(b)).
[11] Because s. 10 rights are so clearly linked to the onset of a “detention”, there has been significant jurisprudence on when a detention actually manifests. The Supreme Court of Canada has long recognized that police officers ought to be able to briefly engage citizens they encounter without immediately triggering their Charter rights: R. v. Mann, 2004 SCC 52, paras. 15-22; R. v. Grant, 2009 SCC 32, paras. 28-29. In R. v. Suberu, 2009 SCC 33, at paras. 2-3, the Court reinforced the concept of “detention”, making it clear that merely delaying a citizen in the context of an investigation may not amount to a detention:
[A]s this Court held in Mann, not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter. Section 9 of the Charter does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Likewise, not every police encounter, even with a suspect, will trigger an individual’s right to counsel under s. 10(b). As Iacobucci J. aptly observed, “[t]he person who is stopped will in all cases be ‘detained’ in the sense of ‘delayed’, or ‘kept waiting’. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.” [emphasis added]
[12] Even where the police have “focused suspicion” about an individual who they are interacting with, their suspicion does not turn the encounter into a detention unless a reasonable person would conclude they could not walk away or decline to answer questions: Grant, para. 41.
[13] Where there is no physical constraint placed on an individual, and no police direction or demand to stay put, the question is whether there was a psychological detention. That test is objective: would a reasonable person in the individual’s situation conclude they could not walk away, keeping in mind the circumstances surrounding the encounter, the nature of the police conduct, and the particular characteristics of the individual affected: Grant, para. 44.
[14] As the test is objective, the accused is not required to testify in order to establish a psychological detention: Grant, para. 50. That said, the burden is on the accused to establish on a balance of probabilities that his Charter rights have been breached, and any such conclusion “must find support in the evidence”: Suberu, para. 28.
b) Voluntariness
[15] It is well established that statements to person in authority are presumptively involuntary. The onus is therefore on the Crown to establish beyond a reasonable doubt that statements made by the accused to any persons in authority were voluntary, in order to be admissible.
[16] In assessing voluntariness, the court must keep in mind the twin goals of protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes. The focus is on the conduct of the police and its effect on the accused’s ability to exercise his free will. The relevant factors include threats or promises, oppression, the requirement of an operating mind and police trickery. These inquiries are highly fact-specific: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3.
Evidence and Analysis
a) Was there a detention?
[17] Counsel agree the pivotal issue is whether Mr. South was detained on the stairwell; if he was not, the police were not obliged to read him his rights to counsel or permit him to speak to a lawyer before making efforts to ascertain who he was and what he was doing in the stairwell.
[18] The critical evidence on this issue came from Constables Goddard and Ahluwalia. As I elaborate upon below, I found both officers to be largely credible, and their evidence was only reinforced under cross-examination.
[19] Constable Goddard is a 21 year veteran with the Toronto Police Service, and has spent 16 of the past years as a member of the Community Response Unit (CRU). Constable Ahluwalia, an officer with 8 years’ experience, was his partner at the relevant time. On most of the key aspects of this case their evidence was largely identical. Where it differed on anything of importance, I so indicate.
[20] Both officers work exclusively in 23 Division, which encompasses the Northwest portion of Toronto. The purpose of the CRU is to provide general uniform policing in vulnerable neighborhoods within the division, including Toronto Community Housing (TCH) buildings. The officers have been given authority by TCH under the Trespass to Property Act to act on its behalf. In that capacity, both officers have a long history of working in community housing projects, including Rowntree Manor. They regularly respond to a wide range of complaints and concerns, ranging from serious, violent offences such as homicides and robberies to more minor issues such as loitering, drug dealing or people drinking, urinating, or sleeping in the stairwells.
[21] On November 16, 2012, while working the evening shift, the officers were called to investigate a complaint about a person smoking marijuana in the stairwell on the 13th floor of Rowntree Manor. They were both in uniform. Upon their arrival they detected a strong smell of marijuana on the 13th floor but could not locate the source nearby. They therefore began walking down the stairwell, whereupon they observed Mr. South sitting on the steps by the 12th floor. He was by himself and drinking a beer.
[22] The officers asked him whether he had witnessed anyone smoking marijuana. He had not. The officers then explained that residents had complained in the past about people drinking and urinating in the stairwells, or leaving broken glass there. As he was alone in the stairwell and drinking alcohol, they inquired as to whether he lived in the building or was visiting. He explained he was visiting the mother of his child, who lived on that floor. He was asked for identification and produced his health card, and verbally provided his address (a nearby building), date of birth and phone number, which Ahluwalia wrote down on a small pre-printed card.
[23] At some point during this encounter, a young woman came out of a nearby apartment and advised the officers that Mr. South was visiting her. Ahluwalia jotted down her name on the reverse side of the card. He also ran Mr. South’s name on CPIC (Canadian Police Information Centre), which produced nothing of concern.
[24] Having established there was no reason to be troubled by Mr. South’s presence, and after advising him not to leave his beer bottle behind in the stairwell, they left Mr. South there to finish his beer and continued to patrol the stairwell, looking for the source of the marijuana smell. They were unsuccessful and so shortly left the building and returned to their division. Later at the station, Ahluwalia transferred the information from the pre-printed card to a computer, which generates a “Community Inquiry Report” accessible to Toronto Police officers. Police use this database to locate witnesses and to help solve some of the serious crimes that occur in their division.
[25] Both officers’ uncontradicted evidence was that throughout this encounter Mr. South was calm, pleasant, and highly cooperative. Ahluwalia said the entire interaction took less than two minutes; Goddard estimated three to five minutes. Either way, based on their evidence, I am satisfied it was a brief and inconsequential encounter, and that it fell far short of the restraint necessary to constitute a detention.
[26] Several important factors confirm their account. First, Mr. South was not the target of their investigation that day. They were searching for someone smoking marijuana and happened to encounter him in the stairwell. He had no helpful information to give them for that investigation.
[27] Second, there was nothing truly suspicious about Mr. South. He was just a guy drinking beer in the hallway. He was by himself and no one seemed disturbed by him. While the officers wanted to satisfy themselves he was not trespassing, that concern was easily resolved both by the information he readily provided and the woman who vouched for his presence.
[28] Third, once assured Mr. South was there for a legitimate reason, they left him right where they found him, with his unfinished beer in hand. This makes sense: police have better things to do than pursue someone who is just visiting his girlfriend and drinking a beer. As Goddard put it, “you got to pick your fights”.
[29] Fourth, consistent with the innocuous nature of this encounter, the officers testified that Mr. South was free to walk away at any time; in fact, had he not been able to explain his presence, they would have concluded he was trespassing and simply escorted him out of the building.
[30] Fifth, the officers’ evidence that Mr. South was pleasant, forthcoming and relaxed was not only uncontradicted – Mr. South did not testify – but also accords with the circumstances. Mr. South had a legitimate reason to be there and was not causing any harm. He had no reason to worry that he was in trouble with the police.
[31] In my view, it was entirely reasonable for police to investigate whether Mr. South was the guest of a resident, as he had claimed, or if he was trespassing by loitering and drinking alone in the building’s stairwell. Importantly, the officers’ uncontradicted evidence was that had they discovered Mr. South did not have a legitimate reason to be there, they would not have arrested him but simply told him to leave the building. Their evidence on this point was both credible and very sensible: why arrest someone just for drinking a beer on private property? The simplest solution would be to have them leave.
[32] Ironically, then, the officers were not determining whether Mr. South was free to leave, but rather whether he was free to stay. And after satisfying themselves that he was there legitimately, they left him there, with his open beer bottle. This is hardly the behavior of “restraint” that the Supreme Court identifies as necessary to constitute a detention.
[33] Defence counsel asserts that because Mr. South was “outnumbered” by uniformed police, asked to account for his presence, and then both carded and run through CPIC, he was clearly intimidated and gave his information under compulsion. Counsel emphasizes that as a black man, Mr. South would feel particularly vulnerable and powerless, and I should take “judicial notice” of the pernicious effects of carding on young black males.
[34] This same issue was addressed in R. v. Daley, [2015] O.J. No. 7156 (S.C.J.), a case where Toronto police officers investigated and “carded” two men who appeared to be loitering in a parking lot. One of the men – Daley – was black[^1]. As their presence in that location seemed odd, the officers questioned both men and examined their identification. The information they provided, including a cell phone number, was recorded on a contact card and each man was “run” on CPIC.
[35] At a subsequent trial, the Crown sought to tender the information provided by one of the men during this interaction. The accused’s counsel argued that the officers’ carding practice “raises the spectre of a surveillance society” (para. 86).
[36] In response, Justice Fairburn noted that while carding is a controversial topic, “this was not a random stop of an individual strictly designed to permit the police to gather information about the individual”. The police approached the accused’s vehicle “for a reason”, namely to ask what the occupants were doing “in a car in an abandoned parking lot in the back of an industrial building located in a high crime area”: Daley, paras. 124-129.
[37] Similarly, in this case, the police did not stop Mr. South arbitrarily or on a whim. They wanted to know why he was sitting alone and drinking beer in a building where residents are concerned about loitering, as it often resulted in empty or broken beer bottles, cigarette butts, or urine in the stairwells.
[38] Moreover, there is no evidence Mr. South felt intimidated at any point during this encounter. He did not testify, and the evidence before me indicates he was not unsettled by the incident.
[39] Much of the existing jurisprudence confirms that an encounter of this nature does not amount to a detention. In R. v. Humphrey, 2011 ONSC 3024, [2011] O.J. No. 2412 Justice Code relied on a long line of authority from our Court of Appeal holding that “simply asking a suspect for identification does not amount to a detention”, and that following Grant and Suberu, “the police now have even more flexibility when asking preliminary non-coercive questions, such as requests for identification, without causing a ‘detention’ and thereby triggering s. 10 rights”: Humphrey, paras. 123-125.
[40] Justice Fairburn applied the same principles in Daley, at paras. 115-116:
It is important not to confuse an individual’s decision to speak with the police with a detention. People speak to the police for all kinds of reasons that are disconnected from compulsion. Sometimes they do so because they think it may inure to their benefit. Sometimes they do so because they feel morally or civilly obliged to do so…..
…While a person may well come to regret having spoken to the police, such ex post facto regret does not dictate whether he or she was detained when the choice to speak was made.
[41] Likewise, in this case Mr. South was investigated for loitering and provided his information, including his cell phone number, to the police, who recorded it on a contact card and went on their way. The information only became evidence connecting him with an offence long after it was given. As in Daley, while Mr. South may now regret speaking to the police that day, the circumstances do not demonstrate that he was detained for the purposes of the Charter.
[42] For all those reasons, I am not satisfied on a balance of probabilities that Mr. South was detained. The s. 9 application is dismissed.
[43] My finding that Mr. South was not detained means that his s. 8 interests were not triggered when he provided his identification to the police and that he had no right to counsel. Therefore his s. 8 and s. 10(b) rights were not infringed.
b) Was the statement voluntary?
[44] I am satisfied beyond a reasonable doubt that Mr. South’s statement in the stairwell was voluntary.
[45] I accept the evidence of Officers Goddard and Ahluwalia as a candid account of their encounter with Mr. South. They struck me as seasoned officers capable of sizing things up quickly and accurately. Neither of them was combative. Goddard’s memory of the event is limited but that reflects its lack of importance at the time. For both of them, this was a nuisance stop that resolved promptly and smoothly. Mr. South was cooperative and forthcoming.
[46] While neither officer has much in the way of notes, all that is in issue here is the recitation of a phone number. There is no risk of an utterance being taken out of context or having its meaning distorted. As Fairburn J. observed at para. 150 of Daley, “the voluntariness doctrine has nothing to do with drivers’ licenses or like documents.” Like the driver’s license at issue in Daley, the phone number in this case is “concrete, reliable evidence, unsusceptible to change as a result of inducements, oppression and the like”: Daley, para. 150.
[47] In any case, there is no evidence to suggest that Mr. South was persuaded to speak to the officers through fear of prejudice or hope of advantage. They treated him courteously and he responded readily. Indeed, no suggestion was put to either officer that they induced Mr. South to provide information by promising him anything or threatening him in any way.
[48] I conclude Mr. South’s statements made during his interaction with the officers were voluntary. The statements are admissible.
c) If there was a Charter breach, should the evidence be excluded under s. 24(2)?
[49] I have already concluded there was no Charter breach during the stairwell incident. However, in the event I am wrong, I shall consider whether the evidence should be excluded under s. 24(2).
[50] Pursuant to R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.), the relevant factors are a) the seriousness of the Charter infringing conduct; b) the impact of the breach on the Charter protected interests of the accused; and c) society’s interest in the adjudication of this case on its merits.
[51] In my view none of those factors justify exclusion of the evidence. The police acted in good faith in their brief encounter with Mr. South, interacting with him only as long as was necessary to ensure he was there for a legitimate reason, and then leaving him there to finish his beer. They were restrained and civil.
[52] The Telus production order relied upon the number that Mr. South provided to the officers. However, evidence of the number he was using at the time of the killing was otherwise discoverable, as demonstrated by the fact that investigators later obtained this information from Ontario Works.
[53] Finally, the records are highly reliable documentary evidence, and their value to the truth-seeking function of the trial is significant. The phone records provide cogent circumstantial evidence that Mr. South was in the vicinity of the deceased’s residence at the time he was killed.
[54] Accordingly, neither the evidence of the Toronto officers about the phone number that Mr. South provided to them in the stairwell in 2012, nor the Telus cell phone records later obtained by investigators after the Barnes homicide occurred, should be excluded at this trial.
Conclusion to Part 1
[55] With respect to the statement obtained in the stairwell, I conclude as follows:
I am not satisfied on a balance of probabilities that Mr. South was detained in the stairwell. The s. 9 application is therefore dismissed.
My finding that Mr. South was not detained means that his s. 8 interests were not triggered when he provided his identification to the police and that he had no right to counsel. Therefore his s. 8 and s. 10(b) rights were not infringed.
In any case, none of the alleged Charter infringements would, alone or collectively, support a finding that admitting Mr. South’s cell phone records would bring the administration of justice into disrepute. Therefore, that evidence would not be excluded under s. 24(2).
The Crown has demonstrated beyond a reasonable doubt that Mr. South’s statement in the stairwell, including his phone number, was made voluntarily. It is therefore admissible.
Part Two: Information from Ontario Works
Factual Background
[56] The facts relevant to this application are largely uncontested. On October 23, 2015 Constable Vaughan from Peel police spoke to Tanya Hall, an employee at Ontario Works (OW). She was permitted by OW to assist law enforcement, and was a contact that he and other officers at Peel Police had used in the past to aid them in other criminal investigations.
[57] On this occasion, Vaughan asked Hall to confirm whether records existed for Adrian South as of August 2013. She advised Vaughan that Mr. South had records existing for that time period and a phone number of 647-208-3990 was on file for the period of May 2013 to October 2013. Vaughan then arranged to obtain a Production Order for those records.
[58] Ms. Aretha Adams, the Manager of Access to Information and Privacy for Peel Region, testified on this application. A licensed lawyer, she oversees requests for information for the region, including requests made by police to OW.
[59] The governing legislation is the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, Chapter M.56 (MFIPPA). Section 32 of MFIPPA provides that an institution shall not disclose personal information in its custody or control. However, it sets out numerous exceptions including, under s. 32(g), where disclosure is to a “law enforcement agency in Canada to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result.”
[60] Ms. Adams testified that the information given to police regarding Mr. South’s phone number was provided under this provision. Assuming Ms. Hall confirmed she was speaking to a law enforcement officer, and that the request was in the context of a criminal proceeding or investigation, she was authorized under the legislation to release this information.
[61] Ms. Adams explained that while the current practice is for officers to fill out a form requesting this information, she is not aware whether that practice existed when this request was made.
[62] The Defence now asserts that the police breached Mr. South’s s. 8 Charter rights against unreasonable search and seizure by obtaining his phone number from Ontario Works without a warrant.
Legal Framework
[63] Everyone has the right to be secure against unreasonable search or seizure under s. 8 of the Charter. However, this protection is only engaged where the accused had a reasonable expectation of privacy in the information obtained. In that regard, and as summarized in R. v. Spencer, 2014 SCC 43, at para. 18, the following factors may be considered:
The subject matter of the alleged search;
The claimant’s interest in the subject matter;
The claimant’s subjective expectation of privacy in the subject matter; and
Whether the subjective expectation of privacy was objectively reasonable, having regard to the totality of circumstances.
Analysis
[64] Counsel agree the pivotal issue in this application is whether Mr. South had a reasonable expectation of privacy in his phone number. Numerous cases make it clear he did not.
[65] In R. v. Lattif, [2015] O.J. No. 1153 (S.C.), Justice Nordheimer was asked to rule on an application by Mr. Lattif that the police improperly obtained contact information from him through the social services department of the City of Toronto. In that case, the police connected another person to three bank robberies and obtained his cell phone records. These records showed contact in the hours before the robberies with a phone number that police connected to Mr. Latiff by asking social services for the phone number that he gave them.
[66] The police then used this information, along with other information about the robberies, to obtain a production order for Mr. Lattif’s phone records, which showed he was in the area of at least two of the three banks that were robbed.
[67] Justice Nordheimer found Mr. Latiff had no reasonable expectation of privacy in his address or telephone number. As in this case, there was no evidence from the applicant that he had a subjective expectation of privacy in the information he gave to the City’s social services authorities. Nordheimer J. (as he then was) also did not find any objective basis for such an expectation of privacy, noting at para. 8:
Information regarding a person’s address and telephone number was, until the recent decline of telephone books, readily available to any person who simply looked up someone’s name in those books. Even today, web based services such as Canada 411 still provide such information. It is also a fact that nowadays we routinely provide our telephone numbers and addresses to an almost unlimited number of businesses and government entities. To suggest there is a reasonable expectation of privacy in such information is belied by the breadth of our release of that information to others.
[68] Moreover, such information does not tend to reveal “intimate details of the lifestyle and personal choices” of Mr. South, which distinguishes this case from others where the courts concluded police needed a search warrant to obtain the information in question: R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at para. 20; Spencer, paras. 27-31.
[69] Justice Code, in R. v. Khan, 2014 ONSC 5664, came to the same conclusion about the reasonable expectation of privacy in a case where police obtained information concerning a person who was associated with two phone numbers by contacting Rogers Communications. He noted that “telephone numbers are openly listed in directories and people frequently give them out to friends and associates and to businesses they are dealing with”: Khan, para. 22. He too distinguished Spencer noting that, “Internet activity is often anonymous and the name associated with an internet protocol address is not openly disclosed and disseminated like a telephone number”: Kahn, para. 27.
[70] Similarly, in this case, Mr. South’s phone number, on its own, does not reveal anything about him of personal significance. Neither the Crown nor the Defence has suggested there is anything of interest or concern in the fact that he was receiving social assistance.
[71] However, Defence counsel claims that the statutory “preconditions” for release of the information were not met in this case. He argues that Ms. Hall released Mr. South’s information without first ensuring that it was required as part of a “criminal” investigation, as “mandated” under s. 32(g) of MFIPPA. All she was told was there was an “investigation” underway.
[72] I note first that s. 32(g) does not specifically require there be a criminal investigation underway before information is released. All that is needed is for the provider to be satisfied that the disclosure is to a “law enforcement agency…to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result.” The term “law enforcement proceeding” is broad and could arguably include queries from a police officer regarding violations of other federal or provincial legislation that are quasi-criminal or regulatory in nature.
[73] That said, as Doherty J.A. observed in R. v. Orlandis-Habsburgo, 2017 ONCA 649, in exercising the discretion to release information under s. 32(g) it “must be taken that the holder of the information will make an independent and informed judgment.” This is turn requires a specific request for the information made “in the context of a specific criminal investigation”: Orlandis-Habsburgo, para. 107.
[74] Moreover, and consistent with that approach, in her evidence Ms. Adams stated that the agent receiving the request must be satisfied it relates to a proceeding of a “criminal” nature.
[75] I am satisfied the necessary vetting occurred here. Ms. Hall was the same person Vaughan and other Peel police officers had previously used to assist in criminal investigations. Vaughan’s uncontradicted affidavit evidence is that on October 23, 2015, he contacted Ms. Hall and identified an ongoing “investigation”. When told OW had records for Mr. South during the relevant time period, Vaughan asked Ms. Hall if someone from OW “could testify about this.” Although Vaughan does not state expressly in his affidavit that he told Ms. Hall it related to a “criminal” matter, at that point the preliminary hearing on this matter was already underway. A subsequent email to Ms. Hall from another officer on the case, Kevin Cranley, confirmed that she had been speaking with Vaughan “about an ongoing court case”. The only logical inference is that Ms. Hall released this information knowing it was needed for an ongoing criminal investigation; there is certainly no evidence to the contrary.
[76] As I noted above, this exact provision was considered by Justice Nordheimer in Latiff. He found that the information regarding Mr. Lattif’s address and phone number was provided under this provision. His Honour decided he was entitled to assume the social service authorities made appropriate inquiries to satisfy themselves the police request was reasonable and properly fell within s. 32(g). He stated “Certainly on the evidence that is before me, the police had reason to want to learn what Mr. Lattif’s phone number was”: Latiff, paras. 13-14.
[77] Justice Coroza came to the same conclusion about a phone number in R. v. Browne, 2017 ONSC 5046, paras. 72-78, in the face of a similar complaint. There, police obtained the accused’s phone numbers from Probation, simply by asking. The probation officers were authorized by statute to share such information as “is reasonable in the circumstances of the case” regarding persons “under investigation” under any federal or provincial legislation where “disclosure is required” in the public interest.
[78] His Honour noted that although the probation officers received only “some generic description of an investigation” by the police, it was sufficient to justify release of the probationer’s phone numbers. The probation officers were not under a duty to ask additional probing questions; “[n]or was there a duty on the police officers to provide details about the investigation”: Browne, para. 77.
[79] I therefore conclude that Mr. South’s s. 8 rights were not infringed.
[80] However, in case I am wrong on that point, I will briefly address whether or not the phone number should be excluded under s. 24(2) as a result of the breach. Mr. South has the burden of demonstrating the evidence should be excluded. In my view, all three of the lines of inquiry set out in Grant favour admission of the evidence.
[81] In terms of the gravity of the s. 8 breach, police were acting in the genuine belief that the law permitted them to obtain the information. The disclosure in the Production Order was complete and accurate. And the only use the police made of the records was to further link the phone number of 647-208-3990 to Mr. South. On October 28, 2015, when the Production Order was granted, Mr. South was already being prosecuted at a preliminary hearing for murder and the police already had his cell phone records.
[82] Second, the authorities have consistently held there is a reduced expectation of privacy, if any at all, in a telephone number. Certainly there is no evidence from Mr. South of any subjective expectation of privacy in this information. Accordingly, the impact of any breach on Mr. South’s s. 8 interests would be minimal.
[83] Finally, the information seized is undoubtedly reliable and is an important piece of circumstantial evidence in the Crown’s case. The evidence that 647-208-3990 was Mr. South’s phone number in August 2013 connects to the location of that cell phone at the time of the shooting. The phone was near the homicide at the relevant times. These records will therefore play a prominent role at this trial. This factor also favours admission.
[84] For those reasons, I would not exclude the evidence under s. 24(2) even if I found a violation of s. 8 of the Charter.
Conclusion to Part 2
[85] The police did not violate Mr. South’s s. 8 rights when they obtained his telephone number from Ontario Works. Even if they did, I would not exclude the evidence under s. 24(2).
[86] The application is therefore dismissed.
Overall Conclusion to Parts 1 and 2
I am not satisfied on a balance of probabilities that Mr. South was detained in the stairwell. The s. 9 application is therefore dismissed.
My finding that Mr. South was not detained means that his s. 8 interests were not triggered when he provided his identification to the police and that he had no right to counsel. Therefore his s. 8 and s. 10(b) rights were not infringed.
Police did not breach Mr. South’s s. 8 rights when they obtained his social assistance records from Ontario Works.
In any case, none of the alleged Charter infringements, alone or collectively, support a finding that admitting Mr. South’s cell phone records would bring the administration of justice into disrepute. Therefore, that evidence would not be excluded under s. 24(2).
The Crown has demonstrated beyond a reasonable doubt that Mr. South’s statement in the stairwell, including his phone number, was made voluntarily. It is therefore admissible.
Baltman J.
Released: December 1, 2017
CITATION: R. v. South, 2017 ONSC 6356
COURT FILE NO.: CR-16-1727
DATE: 20171024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
The Respondent
- and -
ADRIAN SOUTH
The Applicant
RULINGS ON CHARTER AND VOLUNTARINESS APPLICATIONS
BALTMAN J.
Released: December 1, 2017
[^1]: This is made explicit in the companion decision, R. v. Daley, 2015 ONSC 7164, at paras. 10 and 40(iv).