CITATION: R. v. Powell, 2017 ONSC 6482

COURT FILE NO.: CR-17-5/709

DATE: 20171114

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

DEWAYNE POWELL

Aaron Del Rizzo, for the Crown

Mitchell Chernovsky, for the accused

HEARD: October 23-27, 30, 2017

K.L. Campbell J.:

Pre-Trial Ruling on Charter Application

I

Overview

[1] The accused, Dewayne Powell, stands charged with: (1) kidnapping with intent to hold for ransom; (2) unlawful confinement; (3) extortion; (4) assault causing bodily harm; and (5) conspiracy to commit kidnapping for ransom. All of the offences are alleged to have been committed in the Town of Markham between January 6 and 13, 2015. The alleged victim of the offences, the complainant, is Mr. Abhivarman Paranirupasingam.

[2] The only serious issue between the parties is the extent of the participation of the accused in the alleged offences. The resolution of that issue may turn significantly upon the admissibility of evidence the police obtained from their warrantless searches of the contents of the accused’s Blackberry cell phone, which was seized on his arrest on the night of January 12, 2015.

[3] The accused argues that this cell phone evidence was obtained in violation of his constitutional rights protected by s. 8 of the Canadian Charter of Rights and Freedoms, and should be excluded under s. 24(2) of the Charter. The Crown contends that the cursory search of some of the contents of the cell phone, shortly after the arrest of the accused, was lawfully justified on the basis of the exigent circumstances that then presented themselves. The Crown fairly concedes, however, that after the complainant was safely rescued, exigent circumstances could no longer justify any more detailed warrantless examination of the contents of the accused’s cell phone. Accordingly, the Crown concedes that the subsequent, very thorough, warrantless search of the contents of the accused’s cell phone, which took place on January 25, 2015, was done in violation of s. 8 of the Charter. The Crown argues, however, that all of the evidence should be admitted under s. 24(2) of the Charter, especially given that a search warrant was eventually issued for the accused’s seized cell phone.

[4] At the conclusion of the hearing of this pre-trial motion, I advised the parties of my ruling. More specifically, I informed the parties that I had reached the following conclusions: (1) that the initial cursory searches of the contents of the accused’s cell phone by the police, on the night of January 12, 2015 and the early morning hours of January 13, 2015, were not in violation of s. 8 of the Charter, as they were undertaken in “exigent circumstances,” given the urgent need for the police to locate and rescue the kidnapped complainant; (2) that the subsequent, comprehensive, evidence-gathering, warrantless review of the contents of the accused’s cell phone, undertaken on January 25, 2015 and thereafter, was done in violation of s. 8 of the Charter, as there were no longer any “exigent circumstances” to justify this search and the search was no longer truly incident to the arrest, and there was no reason not to seek prior judicial authorization; and (3) the evidence obtained by the police as a result of their warrantless, comprehensive search of the contents of the accused’s cell phone, on January 25, 2015 and thereafter, in violation of s. 8 of the Charter of Rights, should be excluded under s. 24(2) of the Charter, as the admission of that evidence would bring the administration of justice into disrepute. I also told the parties that I would subsequently provide reasons explaining these conclusions. These are those reasons.

II

The Facts

A. Introduction

[5] The Charter application in this matter proceeded efficiently upon agreed statements of fact, some admitted documentary evidence, and the viva voce testimony of three police officers, namely, Det. Stephen Laramy, Det.Cst. Todd Morden, and Det.Cst. Ryan Angus, who were, at all relevant times, members of the Toronto Police Service (TPS). The accused did not testify. There is little dispute between the parties as to the basic chronology of events. In any event, for the purpose of the Charter application, I find the relevant facts to be as follows.

B. The Kidnapping and Confinement

[6] On the afternoon of January 6, 2015, the complainant was violently abducted from the parking lot at the Markville Mall, located at McCowan Road and Highway #7, by two men. He was forced into a minivan, where he was punched, bound and blindfolded. He was taken to an undisclosed location and kept locked in a washroom. He was forced to reveal passwords and other personal information. For example, he told his abductors that he had $12,000 in a locker at his condominium. The complainant believed that there was another captive being kept in the washroom, who was released after the first day.

[7] The complainant was kept captive at this undisclosed location for approximately three days. He was then moved to another undisclosed location, where he was kept for approximately another three days. The complainant was kept blindfolded for most of the time he was kept captive. While the complainant provided the police with a general physical description of the two men who kidnapped him from the mall parking lot, he was not able to identify anyone who was involved in his kidnapping or subsequent unlawful confinement. The complainant thought that there might have been as many as five or six people involved in his kidnapping and confinement.

[8] At the second undisclosed location, the complainant was tortured with some form of hot object. Large areas of his body, including his chest, stomach, shoulders, arms, and legs, suffered third degree burns. According to the complainant, only one person was involved in administering this torture and it happened only once. The rest of the abductors were “nice” to him. As the person who was involved in this torture had a distinguishable Haitian accent, the Crown does not suggest that it was the accused.

C. The Ransom Demands – The Police Investigation

[9] On January 9, 2015, one of the complainant’s close personal friends, Ahmad Safi, began to receive numerous text messages and audio clips, through an application called “Silent Circle.” This is a highly secure and privacy-oriented application, which permits messages to be sent directly between cell phones, without the intermediate intervention of an independent, third-party computer server. Accordingly, communications sent by means of the “Silent Circle” application are very difficult, if not impossible, to trace. Many of these text messages appeared to be from the complainant, asking Mr. Safi to produce a large sum of money to ensure his safe return from his abductors. They wanted $500,000. At times, it appeared that the abductors took over the phone being used to send the text messages and audio clips, and made their own direct demands to Mr. Safi for money to ensure the safe return of the complainant. Mr. Safi was told not to contact the police.

[10] On January 10, 2015, the complainant’s father went to the police and reported his son missing. He had not seen the complainant, or heard from him, in several days. Further, around this same time, members of the complainant’s extended family, living in the United Kingdom, had received a brief telephone call from the complainant, indicating that he was being held against his will and that a ransom was to be paid. They were told not to do anything “stupid” or go to the police. This information had been passed on to the complainant’s father. Det. Stephen Laramy, an experienced police officer with 22 Division of the TPS, became the officer-in-charge of this investigation. Det. Laramy and his team of officers with the “major crime” unit began to take steps to try to ascertain the whereabouts of the complainant.

[11] On January 11, 2015, Mr. Safi also went to the police and showed them the text messages that he had been receiving regarding the kidnapping of the complainant. At approximately 6:52 p.m. that day, Det. Laramy, acting in an undercover capacity, stepped into the shoes of Mr. Safi, and continued to engage with the abductors in the ongoing negotiations, pretending to be Mr. Safi. These discussions continued over the next couple of days.

[12] It was during this period of time, that it was learned that the complainant was being hurt and was in further danger. In a series of text messages, the abductors threatened to get “physical” with the complainant and start cutting off his fingers. The abductors also promised that, if there were any problems with the ransom money, the complainant “won’t come home,” and his friends would “never see him again.”

[13] Ultimately, it was agreed that $500,000 would be paid for the return of the complainant. A photograph of a duffel bag, containing the $500,000, which had been collected for purpose of paying this ransom, was sent to the abductors. The agreement that was reached was that a short time after the promised money was received, the abductors would release the complainant.

D. The Agreed Ransom Money Drop

[14] After some considerable discussion about how the exchange would take place, it was agreed that the kidnappers would pick up the $500,000 in ransom money, on the night of January 12, 2015. The abductors had suggested that the “drop” be made at the Kennedy subway station, but Det. Laramy insisted that it take place by means of a vehicle parked at a gas station at the north-west corner of the intersection of Eglinton Avenue East and Kennedy Road. This was a location which permitted the other 20-25 police officers in the vicinity to maintain visual surveillance of the area.

[15] As the abductors refused to bring the complainant to this location, but promised to release him once the money was secured, the police planned to arrest the abductors when they arrived to pick up the bag of money. Any phones that were found in the possession of the kidnappers would be seized and searched, and an “emergency” wiretap undertaken, pursuant to s. 184.4 of the Criminal Code, R.S.C. 1985, chap. C-46, on the basis of the reasonable police fear of imminent harm for the kidnapped complainant.

[16] At approximately 9:20 p.m. on January 12, 2015, the accused was in the area of Kennedy Road and Eglinton Avenue East. He was driving a white minivan. At the time, the abductors were still engaged in ongoing communications with Det. Laramy by means of text messages. The undercover officer had indicated to the abductors the make (but not the colour) of the car that was to contain the ransom money, and the abductors confirmed that the money would be in the “grey Camry.” The money was to be in the trunk of the vehicle, and the abductors ordered that the trunk of the vehicle be opened. Once the trunk was opened, by an undercover officer seated in the parked Camry, the accused exited the white minivan that was, at that time, parked a short distance away. The accused approached the parked Camry, briefly looked into the open trunk, and then continued walking. While there was an open bag in the trunk of the parked Camry, there was, in fact, no money in the bag.

[17] Unfortunately, at about this same time, a random citizen, driving a Crown Victoria vehicle, pulled into the parking lot, coincidentally parked beside the grey Camry, and the driver of the vehicle went into the gas station.

[18] This may have caused the abductors to suspect that the police were involved as, shortly thereafter, the abductors sent a series of text messages indicating, essentially, that the money pick-up was off. The abductors sent messages saying “Bye” and suggesting that he should now “watch” the complainant’s “fingers,” suggesting (as they had in previous text messages) that they would be removing the complainant’s fingers. When asked if they were taking the money, the abductors replied: “Keep it for [you] and the car parked next to [you],” adding that this was not their “first time.”

[19] The minivan was then driven away from the parking lot. Obviously, someone else who had been in the van moved over into the driver’s seat, and took control of the vehicle. The accused was simply left behind. The minivan initially proceeded down Kennedy Road, before doing a U-turn and then driving back toward the gas station and Eglinton Avenue East. At this time, the minivan was being followed by a number of undercover police officers in unmarked vehicles who were planning to “box-in” the minivan and arrest its occupants. By the time the minivan had returned to the gas station, the accused had already been arrested and removed from the area. At that point, the driver of the minivan started to drive erratically, and smashed into a couple of the police vehicles, before successfully escaping from the area. Police officers were able to record the license plate number of the fleeing minivan, but were unable to successfully stop it and apprehend the person or persons inside.

E. The Arrest of the Accused – The Initial Cursory Searches of His Cell Phone

[20] When the minivan first left the scene, the accused was quickly arrested by the police and taken to the 22 Division police station. Incident to his arrest, the police seized two cell phones that were in his personal possession. One of them was a BlackBerry Q5 smart phone.

[21] This phone was immediately provided to Det.Cst. Morden, one of the specialized trained and accredited officers in the TPS “Technical Crimes” unit. He received the phone at approximately 9:40 p.m. The phone had been “password protected,” but within an hour Det.Cst. Morden was able to access the contents of the BlackBerry. In order to do so, Det.Cst. Morden was required to perform a “full download” or “phone dump” of all of the contents of the phone. Det.Cst. Morden had the necessary computer software programs with him for this purpose. In the result, Det.Cst. Morden effectively created an electronic “mirror image” of the contents of the accused’s BlackBerry at the time of his arrest. From this “phone dump,” Det.Cst. Morden created an Extraction Report, which contained 3775 pages of data, and which was organized according to images, videos, text messages, and some of the application-related data. This Extraction Report was the functional equivalent of the data contained on the BlackBerry itself. Det.Cst. Morden sent this electronic file or “Extraction Report” that he had created to the TPS investigators in the case.

[22] Based on the recent phone calls that had been placed to the accused’s seized BlackBerry, the police immediately set up the emergency wiretap operation on certain phone numbers. Det.Sgt. Kolmatycki of the TPS was in charge of this aspect of the investigation, and Det.Cst. Angus was assigned to the “wire room” to support and assist in this aspect of the case.

[23] After the creation of the large Extraction Report, Det.Cst. Morden briefly reviewed the recent text messages in a cursory way, looking for “obvious” geographical information that might provide the details of where the complainant was being confined. The details of these particular messages were then isolated in another, much shorter, Extraction Report, just some seven pages in length. According to Det.Cst. Morden, he prepared this shorter Extraction Report that night, sometime before 2:18 a.m. on January 13, 2015, when he finished his shift. When he was done with the Blackberry, Det.Cst. Morden returned it to its evidence bag, where it was securely stored in the Technical Crimes unit.

[24] Det.Cst. Angus was the police investigator assigned to review the electronic “phone dump” record. He first received this record just after midnight, in the early morning hours of January 13, 2015. At this point he was still working in the “wire room,” providing support and assistance to the officers involved in the emergency wiretaps. When time permitted, Det.Cst. Angus began to review the details of this large Extraction Report, in a cursory way, and like Det.Cst. Morden, focusing on trying to find an address or other geographic information that might reveal where the complainant was being confined. However, his support work in the “wire room” soon began to consume all of his time, and he was unable to continue his efforts in this regard. Det.Cst. Angus testified that he might have spent a couple of hours reviewing the Extraction Report in this manner between approximately 1:00 and 3:00 a.m. However, Det.Cst. Angus, again just like Det.Cst. Morden, was unable to discern any locational information contained in the data he reviewed at the time.

[25] The emergency wiretap operation, and further investigative efforts by the police, ultimately resulted in the successful rescue of the complainant, at approximately 4:50 a.m. on January 13, 2015. Essentially, the police had learned that the complainant was going to be moved from one location to another in the early morning hours, as his abductors had learned that one of the accused’s friends had gone to the police instead of bringing them the money. At the time he was rescued, the complainant was being transported by cab by two individuals, Robert Zaya and Patrick Sweeney, who were promptly arrested by the police. This rescue and arrest took place at a residence located on Lamberton Blvd. in Toronto. Once the complainant was rescued, the emergency wiretap exercise was immediately discontinued.

[26] As the complainant had suffered extensive physical injuries from his torture, he was taken to St. Joseph’s Medical Center for medical treatment. Subsequently, the complainant attended at 22 Division and provided a statement to the police about the details of his abduction and confinement.

F. The Recovery of the Rented Minivan

[27] On the night the accused was arrested, the police learned, with the license plate number of the white minivan, that it was owned by “Enterprize,” but had been rented to the accused. Over the next few days, the police pursued their investigation into this matter.

[28] On January 15, 2015, the police recovered the rented minivan that had been driven to the ransom “money drop,” and which had escaped the police after leaving the accused behind.

[29] Inside the minivan, the police discovered all of the following: (1) the fingerprints of the accused; (2) a rental agreement, dated December 18, 2014, between the accused and “Enterprise Rent a Car Company Canada,” concerning the rental of the minivan; (3) the accused’s driver’s license; (4) the accused’s Hudson’s Bay Company Mastercard credit card; (5) a TD Canada Trust receipt showing that a $1,000 payment was made on the accused’s Hudson’s Bay Company Mastercard credit card account at 11:25 a.m. on January 8, 2015 in Uxbridge, Ontario; and (6) a parking ticket issued in Markham, Ontario on January 11, 2015 at 6:00 a.m., for parking on private property without the consent of the owner. In his testimony, Det. Laramy agreed, however, that there was no forensic evidence that suggested that the complainant was ever in the minivan rented by the accused.

G. The Detailed Warrantless Examination of the BlackBerry Data

[30] It was not until January 25, 2015, that Det.Cst. Angus returned his investigative attention to the electronic “phone dump” file taken from the accused’s cell phone. During most of the period between January 13 and 25, 2015, Det.Cst. Angus was not scheduled to work. However, on January 25, 2015, he spent the entire 10-hour day in a comprehensive review of the contents of this file. There was no prior judicial authorization sought or obtained by the officer before he undertook this detailed examination. According to Det.Cst. Angus, he made detailed notes as to what aspects of the record he examined but, unfortunately, these notes were subsequently inadvertently lost. They have never been recovered.

[31] When Det.Cst. Angus renewed his efforts, on January 25, 2015, at reviewing the contents of the electronic “phone dump” file, after being off for more than a week, there were no longer any “exigent circumstances.” Both Det. Laramy and Det.Cst. Angus testified to that effect. In this phase of the investigation, the police, and Det.Cst. Angus in particular, were simply “gathering evidence,” and were no longer looking for any other potential confined victims.

H. The First Search Warrant (February 4, 2015)

[32] Notwithstanding this extensive warrantless review of the contents of the accused’s Blackberry, on February 4, 2015, a search warrant was sought and issued permitting the police to search some 16 seized phones, and two other seized electronic devices. The accused’s BlackBerry cell phone was one of the phones that this search warrant permitted the police to search. This search warrant was issued based upon the “Information to Obtain” (ITO) prepared by Det.Cst. Craig Meredith, who had also been involved in the preparation of search warrants for various premises of police interest.

[33] Insofar as his lengthy ITO related specifically to the accused and his seized Blackberry, it provided as follows:

• The ITO mentioned that, upon authorization being granted to search the devices, “they will be examined and the data stored on the device(s) will be downloaded,” and the “data will then be searched for” various kinds of information.
• The ITO stated that all of the phones “were located during the arrest of the parties” who were involved in the abduction of the complainant, and the “batteries of the phones were not removed.”
• The ITO stated that when the accused was arrested during the “ransom money drop off,” the search of his person incident to that arrest determined that the accused “was in possession of a cellular phone,” which was then turned over to officers from “intelligence services.”
• The ITO stated that, after the accused was arrested, there were further incoming calls to his cell phone, and the police learned that the accused had “rented the van that escaped.” Efforts were made to “retrieve the voice mail” from the cell phone “as exigent” but these efforts were not successful.
• The ITO stated that, on January 25, 2015, Det.Cst. Meredith spoke to Det.Cst. Angus and “reviewed data that was obtained during the emergency cell phone search” of the accused’s cell phone, and Det.Cst. Meredith learned: (1) that Det.Cst. Angus was provided with “digital data” from the accused’s cell phone on January 13, 2015; (2) that, upon “locating the entries from the downloaded data,” Det.Cst. Angus provided Det.Cst. Meredith with “electronic copies of the data” that were included in the ITO; and (3) that Det.Cst. Angus advised Det.Cst. Meredith that, while “conducting further investigation into the data seized” from the accused’s cell phone the following was learned:
  • An entry on December 10, 2014, revealed the license plate number and physical description of the rental vehicle the complainant was using at the time of his abduction;
  • An entry on December 4, 2014, revealed the municipal address of the residence of the complainant’s father.
  • There was a copy of a photograph, dated January 12, 2015, of the bag containing the $500,000 in ransom money, sent by Det. Laramy to the complainant’s abductors.
  • There was a “chat log” text message conversation, which included a voice note, that took place on January 6, 2015, in which one of the participants of the conversation talked about having found a “way better spot” to “bring the man,” that was “closer to the highway,” and where “no one was there.”

[34] Accordingly, the ITO prepared by Det.Cst. Meredith in support of the February 4, 2015 search warrant included significant pieces of evidence that Det.Cst. Angus gleaned for his warrantless review of the “phone dump” from the accused’s cell phone. Further, the ITO suggested: (1) that the data stored on the accused’s Blackberry had not yet been “downloaded;” and (2) that the “digital data” that had been reviewed by Det.Cst. Angus was all part of a lawful “emergency cell phone search” performed on January 13, 2015. Further, the ITO did not include any mention of the fact that the police had already obtained, by way of a “phone dump” all of the contents of the accused’s BlackBerry, and that Det.Cst. Angus had already reviewed, without warrant, the entire contents of that electronic “phone dump” file.

I. The Second Search Warrant – Just Before Trial (September 17, 2017)

[35] On September 17, 2017, approximately a month before the scheduled commencement of this trial, a second search warrant was issued, specifically for the search of the accused’s BlackBerry cell phone, which had been seized “incident to arrest,” and which was “stored in the building of [the] Intelligence Division of the Toronto Police Service.” Det. Laramy testified that this second search warrant, was requested by the Crown.

[36] In his supporting ITO, Det. Laramy indicated: (1) that when the accused was arrested, the “exigent search of [his] phone resulted in the creation of a phone dump, or mirror image of all of the data located in the phone;” and (2) an emergency wiretap was commenced in relation to the accused’s BlackBerry phone number and a second phone number that had called the accused, on his BlackBerry, just before his arrest, which emergency wiretaps led ultimately to the rescue of the complainant and the arrest of two of his abductors.

[37] In his ITO in support of this search warrant, Det. Laramy also indicated that “further investigations into the data” obtained from the accused’s BlackBerry revealed evidence: (1) of surveillance being conducted on the complainant, including the location of his residence and the residence of his father, for up to a month before the kidnapping; (2) surveillance being conducted on the complainant at the Markville Mall just prior to his kidnapping; (3) audio files with directions to an address; and (4) the photograph of the bag containing the $500,000 in ransom money that Det. Laramy had sent to the abductors.

[38] Det. Laramy appended to his relatively brief ITO, the much longer ITO prepared by Det.Cst. Meredith in support of the earlier, February 4, 2015 search warrant.

[39] In his ITO in support of the issuance of this search warrant, Det. Laramy expressly noted that while “several important items of evidence [had] already been located in the data obtained from the BlackBerry,” he was asking for the warrant as he believed that, given the “quantity of data located within the smart phone,” the accused’s BlackBerry cell phone contains “further evidence” in relation to the alleged offences, and “further evidence” tying the accused to the “planning and execution of the kidnapping” of the complainant. Accordingly, Det. Laramy sought a search warrant for the “examination” of the accused’s BlackBerry, and to be permitted to “conduct further searches of the data located on the BlackBerry.”

[40] After this search warrant was issued, however, the police did not, in fact, conduct any further search of the accused’s seized BlackBerry phone.

[41] In his testimony, Det. Laramy explained that, in his view, this second warrant was not necessary, but was sought, out of an abundance of caution, and directed specifically at the accused’s BlackBerry phone, in order to help show the trial judge that all of the evidence from the BlackBerry was inevitably “discoverable” in any event. Det. Laramy denied that seeking the second search warrant was a “sham,” but he agreed that the second warrant was sought primarily in order to “show the court” that a warrant could have been obtained “at the time.” He also agreed that this purpose for seeking the second search warrant was not articulated anywhere in his ITO, and that, accordingly, his ITO could have been “worded differently.”

III

Analysis

A. The Warrantless Searches of the Cell Phone Seized from the Accused

1. Introduction

[42] Defence counsel fairly concedes that the police were entitled, immediately following the lawful arrest of the accused, to seize his BlackBerry incident to that arrest, and conduct cursory searches of its contents in an effort to capture any locational information that might assist them in rescuing the complainant from the clutches of his abductors. Defence counsel submits that the “exigent circumstances” that lawfully permitted these cursory searches of his BlackBerry are self-evident. Defence counsel contends, however, that the comprehensive, warrantless review of the “phone dump” file, by Det.Cst. Angus on January 25, 2015, was a violation of the accused’s right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Charter. According to defence counsel, the accused had a reasonable expectation of privacy in the contents of his BlackBerry and, in the absence of exigent circumstances, the police were obliged to obtain a search warrant before conducting such an intrusive review of the contents of his BlackBerry. The Crown, essentially, agrees with this position – so do I.

2. Cell Phone Searches Incident to Arrest

[43] In R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, the Supreme Court of Canada clarified the law concerning the scope of the police power to search cell phones, without prior judicial authorization, incident to the lawful arrest of an accused.

[44] The court recognized, at paras. 46-49, that the prompt search of cell phones, incident to arrest, may serve important law enforcement objectives, in that such searches may assist police: (1) in identifying and mitigating risks to public safety; (2) locating firearms or stolen goods; (3) identifying accomplices and locating other perpetrators; (4) locating and preserving evidence that might otherwise be lost or destroyed; (5) preventing suspects from evading or resisting law enforcement; (6) warning officers of possible impending danger; and (7) following investigative leads promptly. The Court also recognized, at para. 49, that cell phone searches have an inherent element of urgency.

[45] The court in Fearon also recognized, at paras. 51-53, the very significant and important privacy interests that are inherent in cell phones. Like computers, cell phones may have “immense storage capacity,” may provide personal “information about intimate details of the user’s interests, habits and identity” without their knowledge or intent, may “retain information even after the user thinks that it has been destroyed,” and may “provide access to information” that is not physically located at the scene of the search (i.e. in the cell phone). See also R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 38, 40-45. This is true regardless of whether or not any individual cell phone is “password-protected” and locked, or is unlocked.

[46] Accordingly, in seeking to strike the appropriate balance between the competing law enforcement and privacy interests, the Court in Fearon imposed four conditions upon such cell phone searches in order to ensure compliance with s. 8 of the Charter.

• First, the arrest of the accused must be lawful. If the arrest is unlawful, so is any search conducted incident to that arrest. The police do not have to have reasonable and probable grounds to believe that evidence of the alleged offence will be found on the cell phone, but the arrest of the accused must be lawful. See R. v. Fearon, at paras. 66, 83.
• Second, the search must be truly incidental to the arrest. This requirement must be “strictly applied” so as to require that such searches must be “done promptly upon arrest” in order to “effectively serve” the relevant “law enforcement purposes,” namely, (a) protecting the police, the accused, or the public; (b) preserving evidence; or (c) discovering evidence, including locating additional suspects. In practice, this generally means that “only recently sent or drafted emails, texts, photos and the call log may be examined” as, in most cases, only those sorts of items will have the “necessary link to the purposes for which prompt examination of the device is permitted.” This requirement prevents the “routine browsing through a cell phone in an unfocussed way.” The police are simply not permitted to “rummage around in the device at will.” As the court stated, searching the “entire contents of a cell phone or a download of its contents is not permitted as a search incident to arrest.” See R. v. Fearon, at paras. 75-78, 83.
• Third, the nature and the extent of the search must be carefully tailored to its purpose, and viewed restrictively in relation to searches for the purpose of “the discovery of evidence.” Indeed, the discovery of evidence will only be a valid law enforcement objective justifying a cell phone search when “the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone” incident to arrest. Practically speaking, this means: (1) that cell phone searches are “not routinely permitted simply for the purpose of discovering additional evidence;” and (2) the police will have to explain why it is not practical to postpone the search until they could obtain a warrant. See R. v. Fearon, at paras. 80-81, 83.
• Fourth, the police must take detailed notes of what they have examined on the device, why they examined it, and how they examined it. These notes should generally include “the applications searched, the extent of the search, the time of the search, and its purpose and its duration.” This careful record-keeping requirement ensures an effective after-the-fact judicial review. It will also help focus police officers in performing only appropriate cell phone searches. See R. v. Fearon, at paras. 82-83.

[47] Importantly for present purposes, the Court in Fearon made it clear, at paras. 69-73, that warrantless cell phone searches incident to arrest is not a subset of the exigent circumstances exception to the usual warrant requirement.

3. Exigent Circumstances – An Exception to the Warrant Requirement

[48] While the accused normally bears the burden of proof to establish a violation of their Charter rights, where a violation of the right to be “secure against unreasonable search and seizure” contrary to s. 8 of the Charter has been alleged, where the accused demonstrates that the search or seizure in issue was warrantless, the Crown has the burden of proving, on the balance of probabilities, that the search or seizure was reasonable. An impugned search or seizure will be reasonable if: (1) the search was authorized by law; (2) if the law itself is reasonable; and (3) if the manner in which the search was executed was reasonable. See R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, 33 C.C.C. (3d) 1, at p. 278; R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, 121 C.C.C. (3d) 97, at paras. 10-11; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 36; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 36; R. v. Aviles, 2017 ONCA 629, at paras. 13-17.

[49] The presence of “exigent circumstances” has long been recognized at common law as a justified legal basis for warrantless searches and seizures by police officers. See R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, [1995] S.C.J. No. 38, at paras. 110-112; R. v. Rao (1984), 1984 CanLII 2184 (ON CA), 46 O.R. (2d) 80, 12 C.C.C. (3d) 97 (C.A.), at p. 120, leave refused, [1984] S.C.C.A. No. 107. Generally speaking, “exigent circumstances” are circumstances which reveal a need for “immediate action” on the part of the police in an “urgent or critical situation” where there is no realistic opportunity to seek prior judicial authorization. See, for example, R. v. McGregor (1985), 1985 CanLII 3539 (MB KB), 38 Man.R. 9, 23 C.C.C. (3d) 266 (Q.B.), at p. 273; R. v. V. (T.A.), 2001 ABCA 316, 299 A.R. 96, at para. 24. As the Supreme Court of Canada observed in R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 37, in order to justify a warrantless search based upon exigent circumstances, the Crown must show that the search was “compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety,” and that this urgency was such that “taking the time to obtain a warrant would pose serious risk to those imperatives.”

[50] The jurisprudence addressing the legal propriety of warrantless searches or seizures in “exigent circumstances” falls generally into two types of cases, namely: (1) where there is a risk of imminent loss or destruction of evidence or contraband before judicial authorization could realistically be obtained; and (2) where there is a concern for public or police safety. See R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456, at para. 24; R. v. Kim, 2015 ABCA 274, 607 A.R. 6, at para. 13.

[51] In cases where the warrantless search or seizure has been undertaken to prevent the imminent loss or destruction of evidence or contraband, the search is legally justified on the basis that the police possessed the necessary reasonable grounds that would have justified the issuance of a judicially authorized search warrant, time permitting, but the exigent circumstances presented to the police required them to act without a warrant in order to preserve the evidence or contraband. Accordingly, in this particular context, exigent circumstances do not justify a warrantless search for evidence or contraband on less than the legal threshold required for the issuance of a search warrant. See R. v. Kelsy, at para. 25; R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, 115 C.C.C. (3d) 129, at p. 53; R. v. Phoummasak, 2016 ONCA 46, 26 C.R. (7th) 436, at para. 12; R. v. McCormack, 2000 BCCA 57, 143 C.C.C. (3d) 260, at paras. 19-21, leave denied, [2000] S.C.C.A. No. 111; R. v. Duong, 2002 BCCA 43, 162 C.C.C. (3d) 242, at para. 22, leave denied, [2002] S.C.C.A. No. 112.

[52] Further, as the Supreme Court of Canada observed in R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, 84 C.C.C. (3d) 173, at pp. 241-242, the “exigent circumstances” exception to the “general rule which proscribes warrantless searches” will only apply where “there exists an imminent danger of the loss, removal, destruction or disappearance of the evidence … if the search or seizure is delayed in order to obtain a warrant.” See also R. v. D.(I.D.) (1987), 1987 CanLII 206 (SK CA), 60 Sask.R. 72, 38 C.C.C. (3d) 289 (C.A.), at paras. 33-39.

[53] In cases where the warrantless search or seizure has been undertaken by the police out of concern for public safety (including their own personal safety), the search or seizure is generally justified on the basis of a lower threshold legal standard, namely, reasonable suspicion or articulable cause. The theoretical basis for this aspect of the “exigent circumstances” exception to the usual warrant requirement, is that the safe protection of human lives must be given priority by police officers over reasonable expectations of privacy by citizens. See R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743, 117 C.C.C. (3d) 193 (C.A.), at paras. 41-54; R. v. Bedard (1998), 1998 CanLII 4009 (ON CA), 125 C.C.C. (3d) 348, 109 O.A.C. 151, at paras. 15-19; R. v. White, 2007 ONCA 318, 85 O.R. (3d) 407, at paras. 44-55; R. v. Kelsy, at paras. 32, 34, 54.

[54] Accordingly, the common law legal position in relation to the “exigent circumstances” exception to the usual warrant requirement is accurately codified, at least in part, by s. 529.3(2)(a) and (b) of the Criminal Code, which provides that “exigent circumstances,” for the purpose of entering a dwelling-house without a warrant, include circumstances in which the peace officer: (a) “has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person;” or (b) has “reasonable grounds to believe that evidence … is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.” [emphasis added]. See R. v. Moulton, 2015 ONSC 1047, 19 C.R. (7th) 112, at paras. 116-117.

[55] In summary, applying these general principles in the context of cell phone searches, the warrantless seizure and search of a cell phone, on the arrest of a suspect, will be justified on the basis of exigent circumstances where: (1) there is a reasonable basis to suspect a search of the cell phone may prevent an imminent threat to safety; or (2) there are reasonable grounds to believe that the imminent loss or destruction of evidence may be prevented by a warrantless search. A lower legal standard for exigency operates to protect public safety, than to preserve evidence. The necessary exigency exists to justify a warrantless search of a cell phone to protect safety provided only there is a “reasonable suspicion,” whereas the necessary exigency justifying such a search to gather evidence must be based upon “reasonable belief.” Notwithstanding the lower standard of “reasonable suspicion” that governs cell phone searches where there is an imminent threat to safety, the search undertaken by the police must be “reasonably necessary” in the context of the exigent circumstances presented. See R. v. Feeney, at para. 52; R. v. Golub, at paras. 4-54; R. v. Fearon, at paras. 73, 175-179; R. v. Kelsey, at para. 52, 54, 56-58; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paras. 31-47.

[56] It is important to recall, however, that regardless of whether “exigent circumstances” are invoked to justify a warrantless search or seizure for the purpose of preserving evidence or in order to protect the public or for officer safety, it is only the unique nature of the “exigent circumstances” that obviates the need for prior judicial authorization. But, exigent circumstances are, by their very nature, “extraordinary” and can properly be invoked to justify warrantless searches or seizures “only where necessary.” See R. v. Feeney, at para. 52; R. v. Kelsy, at para. 35, 43; R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, 131 C.C.C. (3d) 129, at para. 22.

4. The Initial Cursory Searches Were Justified by Exigent Circumstances

[57] The Crown contends that, in the circumstances of the present case, the initial cursory searches by the police of the contents of the accused’s seized BlackBerry by the police, were reasonable, and in compliance with s. 8 of the Charter, in that they were clearly justified by the “exigent circumstances” that presented themselves to the police at the time the accused was arrested on the night of January 12, 2015. Defence counsel fairly conceded this point, agreeing that the exigent circumstances were self-evident. I agree with the joint position advanced by the parties on this issue.

[58] At the time that these cursory searches of the BlackBerry were undertaken, the complainant was in grave physical danger. He was still being unlawfully confined by his abductors. While the accused had been arrested, at least one other abductor was still at large, namely, the person who had escaped from the police in the minivan.

[59] In a series of earlier text messages, when the abductors were becoming impatient about how long it was taking to get their ransom money, the abductors had threatened to “start getting physical” with the complainant, and had suggested that there was one “crazy” abductor who wanted to cut off the complainant’s fingers. The messages also indicated that they were “not joking” and suggested that, if their demands were not met, they would start “putting him to work.” In another earlier text message from the abductors, it was indicated that they could only hold back their “goons” for “so long,” and that they were “getting frustrated.” The abductors promised that, if there was any “bullshit with the money,” the complainant “won’t come home,” and his friends would “never see him again.” In another series of earlier text messages, the abductors threatened to cut off one of the complainant’s fingers and send it to “his parents” to evidence “how serious” they were. Finally, on the night of January 12, 2015, when the accused looked into open trunk of the parked grey Camry vehicle for the ransom money, and the abductors realized that the “money drop” was not unfolding as they had hoped, a text message was sent saying “bye” and suggesting that they could “watch” the complaint’s “fingers now.”

[60] In these circumstances the police had much more than a reasonable suspicion – they had at least reasonable and probable grounds to believe – and they did believe, that time was of the essence, and that they were required to quickly examine the contents of the accused’s BlackBerry in their ongoing efforts to try to prevent the imminent bodily harm or death of the complainant. Moreover, the police did not simply rummage through the contents of the Blackberry searching for evidence. Rather, attention was appropriately focused on trying to find any information that might reveal the location of the confined complainant and his abductors. These cursory searches of the contents of the accused’s seized BlackBerry were more than reasonably necessary. In my view, it would have been irresponsible for the police, and a dereliction of their duty to protect and preserve public safety, not to have acted just as they did, when faced with these compelling exigent circumstances. There was simply no time for a search warrant. They acted quickly and professionally, and were ultimately successful in rescuing the complainant from the violent clutches of his abductors. In their cursory searches of the data from the accused’s seized BlackBerry, the police invaded the privacy interests of the accused no more than was necessary to try to locate the complainant.

5. The Police Breach of s. 8 of the [Charter of Rights](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) in the Present Case

[61] When Det.Cst. Angus commenced his detailed and comprehensive review of the electronic “phone dump” record of the accused’s seized BlackBerry on January 25, 2015, this search was an unreasonable one, in violation of the accused’s rights under s. 8 of the Charter of Rights. The Crown fairly conceded this point, agreeing that there were no longer any exigent circumstances. The Crown did not suggest that this search could be justified as truly incidental to the January 12, 2015 arrest of the accused.

[62] I agree with the joint position advanced by the parties that, by January 25, 2015, there were clearly no longer any exigent circumstances that might potentially justify the extensive warrantless review of the “phone dump” data from the BlackBerry that was undertaken by Det.Cst. Angus. The complainant had been rescued some 12 days earlier, and had quickly received medical treatment for his injuries. He was no longer in any threat of bodily harm or death. The accused had been arrested. The two abductors who had been confining the complainant at the time of his rescue, namely, Robert Zaya and Patrick Sweeney, had also been arrested. The police investigative efforts, between January 12 and 25, 2015, provided no support for the notion that there might have been other potential victims still being confined. In short, the police had no reasonable basis to suspect that there were any exigent circumstances that permitted this detailed review of the “phone dump” file from the accused’s BlackBerry.

[63] Further, in my view, this comprehensive search of the “phone dump” file cannot, for a variety of reasons, be justified as being a search incident to the arrest of the accused. First, the search was not truly incidental to the arrest. More specifically, it was not “done promptly upon arrest” in order to protect any person, or preserve evidence, or discover evidence at a time when the investigation would otherwise be stymied or significantly hampered. Second, the review by Det.Cst. Angus was not in any way limited to the investigative purposes permitted by a search incident to arrest. Rather, it amounted to a strictly prohibited review of the “entire contents of a cell phone or a download of its contents,” for the “purpose of discovering additional evidence.” Third, the police provided no explanation as to why it was not practical to postpone this review of the Blackberry until they could obtain a warrant. Fourth, while Det.Cst. Angus may have taken “detailed notes” of his January 25, 2015 examination of the “phone dump” record, any such notes were subsequently lost. As the Supreme Court observed in Fearon, at para. 87, the “Crown bears the burden of establishing that the search incident to arrest was lawful,” and that burden is not met “absent detailed evidence about precisely what was searched, how and why.” As that evidence is wholly lacking in this case, and its absence prevents any “meaningful judicial review of the legality of the search,” the Crown cannot establish that the review was incident to arrest.

[64] Accordingly, the detailed and comprehensive review of the electronic “phone dump” record of the accused’s seized BlackBerry undertaken by Det.Cst. Angus on January 25, 2015, and thereafter was an unreasonable search in violation of s. 8 of the Charter of Rights.

B. Should the Evidence be Admitted or Excluded Under s. 24(2) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

1. Introduction

[65] The next step of the analysis, given this violation of the accused’s rights under s. 8 of the Charter, is to determine the admissibility of the evidence secured by the police from the accused’s seized BlackBerry under s. 24(2) of the Charter. See R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235. The burden of proof, of course, is on the accused to establish, on the balance of probabilities, that the admission of the tendered evidence from his BlackBerry would bring the administration of justice into disrepute. See R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at pp. 209-213; R. v. Harper, 1994 CanLII 68 (SCC), [1994] 3 S.C.R. 343, at pp. 353-354; R. v. Fearon, at para. 89.

[66] According to the leading Supreme Court of Canada decisions in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, there is a three-pronged test that must be applied. The court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to the following three factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. In the final analysis, the court must consider all of the circumstances of the case in conducting this delicate balancing assessment. No one factor should be permitted to “overwhelm” or “trump” all other considerations, in determining the admissibility of the evidence against the “long-term repute” of the administration of justice. See R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-113; R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248, at paras. 5-8; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 45-48; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 80-98; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at paras. 45-52; R. v. Spencer, 2014 SCC 43, [2012] 2 S.C.R. 212, at paras. 75-81; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 37-42; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at paras. 78-89; R. v. Paterson, at paras. 42-57.

[67] In R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, Doherty J.A., delivering the judgment of the court, provided the following guidance as to the overall operation of this three-pronged standard, at paras. 62-63:

The first two inquiries [under Grant] work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case …

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence … If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility … Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence … [citations omitted]

[68] It is important to recall, however, as Doherty J.A. also observed in R. v. McGuffie, at para. 59, that s. 24(2) of the Charter directs that where evidence is obtained in a manner that infringes a right guaranteed by the Charter, “the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” [emphasis added]. Of course, the governing analytical framework for the application of s. 24(2) of the Charter does not undermine the constitutional command of s. 24(2) of the Charter to consider “all of the circumstances” in determining questions of admissibility.

2. The Seriousness of the State Conduct

a. The Governing Legal Principles

[69] With respect to the first prong of the test, namely, the seriousness of the state conduct, the court must consider whether the admission of the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct is leading to the Charter violation, the greater the need for courts to dissociate themselves from that misconduct by excluding the evidence. The goal is not to punish the police or deter Charter breaches, but to preserve public confidence in the rule of law and its processes. See: R. v. Grant, at paras. 72-75.

[70] Accordingly, inadvertent or minor violations of the Charter are at one end of the spectrum of potential police conduct, while wilful or reckless disregard of Charter rights is at the other end. Extenuating circumstances, such as the need to prevent the disappearance of evidence, may mitigate the seriousness of police misconduct. Good faith will also reduce the need for the court to disassociate itself from the police conduct. However, negligence or wilful blindness by the police cannot properly be viewed as good faith. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence. In addition, if the Charter-infringing police misconduct was part of a pattern of abuse, such conduct would support the exclusion of the evidence. See R. v. Grant, at paras. 74-75; R. v. Boussoulas, 2014 ONSC 5542, 320 C.R.R. (2d) 64 at paras. 157-158.

[71] Even where the breach of the accused’s Charter rights is not the result of any “wilful disregard” for those rights, if the Charter violation constitutes a significant departure from the standard of conduct expected of police officers, such conduct cannot be condoned by the courts, and this aspect of the inquiry will lean in favour of the exclusion of the evidence. See R. v. Taylor, at para. 39.

b. The Application of These Legal Principles

[72] In my view, the conduct of the police, in undertaking a comprehensive review of the entire contents of the “phone dump” from the accused’s BlackBerry, in the absence of prior judicial authorization, was a serious breach of accused’s constitutional rights under s. 8 of the Charter. That review, and the subsequent conduct of the investigating police officers, revealed a reckless indifference to the privacy rights of the accused.

[73] Both Det. Laramy and Det.Cst. Angus testified about why they thought that it was lawful and reasonable for them to proceed with this review. Essentially, they both testified that since they were not actually examining the contents of the BlackBerry cell phone itself, but only an electronic copy of the contents of the cell phone, and as that electronic “phone dump” file had been lawfully created during the “exigent circumstances” of their investigation, the police did not need prior judicial authorization to review that electronic file. Further, according to Det.Cst. Angus, he and Det. Laramy discussed, shortly after the “phone dump” file was created, whether or not a warrant was needed in order to examine the contents of the information extracted from the Blackberry. They concluded that no warrant was required.

[74] It is difficult to accept that these experienced officers honestly believed, in good faith, that they were legally prevented from comprehensively examining the accused’s seized Blackberry without prior judicial authorization, but that they were legally entitled to comprehensively examine a “mirror image” of the contents of that BlackBerry without a search warrant – and that they were permitted to rely upon the evidence gleaned from their comprehensive review of the “mirror image” in seeking a search warrant to examine the BlackBerry device itself. Such an extraordinary belief, even assuming it was honestly held by the officers, cannot be viewed, in my opinion, as evidencing any regard on the part of the officers for the important privacy interests of the accused. Clearly, his reasonable expectation of privacy concerning the information contained on his BlackBerry device is just as compromised by a police review of that information by examination of the “phone dump” file, as it would be by examination of the phone itself.

[75] I would have thought that, at a minimum, before undertaking such a comprehensive, warrantless review of the entire contents of the accused’s BlackBerry, as extracted in the “phone dump,” the police, acting honestly and in good faith, and concerned about the obvious privacy interests of the accused, would have sought legal advice concerning the legal validity of their views. An Assistant Crown Attorney could, and should, have been consulted. The fact that no such legal advice was sought, in these circumstances, further supports my conclusion that the police acted with reckless disregard for the constitutional rights of the accused. See R. v. Strauss, 2017 ONCA 628, [2017] O.J. No. 4084, at para. 52.

[76] This is especially so given that, on January 13, 2015 at 7:53 p.m., Det.Sgt. Kolmatycki, sent an email message to five police officers, including Det. Laramy, in which he: (1) asked the officers to contact Det. Laramy about the “exams” that they had done “to date” and the fact that “SOME” of those “exams were done only to support the rescue of the complainant; (2) asked the officers to ask Det. Menard “about the process in examining further devices; and (3) stated his expectation that “consent MAY be granted” for the complainant’s devices, but that “the [seized] devices related to the accused persons will require warrants.” This message, from a superior officer, could only have highlighted the need for caution in any further examination of information obtained from the BlackBerry seized from the accused, and the need for legal advice in determining whether a search warrant was required in the circumstances.

[77] In cross-examination, both Det. Laramy and Det.Cst. Angus recognized that cell phones typically have an “immense storage capacity,” and they often contain information that reveals intimate, private, personal details about the lifestyle, interests and habits of the owner of the cell phone. They also testified that they were aware of the Supreme Court of Canada in R. v. Fearon, released on December 11, 2014. Accordingly, while these two officers appeared to fully understand the privacy interests surrounding the search of cell phones, none of that collective knowledge was applied in their consideration of whether the police were lawfully entitled to comprehensively search, without warrant, all of the information that had been earlier extracted from that cell phone.

[78] Det. Laramy admitted that a search warrant could have been obtained before Det.Cst. Angus undertook his comprehensive review of the electronic “phone dump” file. Indeed, Det. Laramy agreed that the police often seize evidence in order to “freeze” it and preserve it, but then seek judicial authorization in order to review the evidence. Further, as I have already indicated, on February 4, 2015, a search warrant was issued permitting the police to search, amongst other phones, the accused’s BlackBerry.

[79] No explanation was offered as to why the examination undertaken by Det.Cst. Angus on January 25, 2015, could not have waited until this search warrant was granted. I am driven to the conclusion that this examination was undertaken by Det.Cst. Angus on January 25, 2015 in anticipation of the request for a search warrant, and in order to ensure that the ITO prepared in support of this search warrant request contained the necessary reasonable grounds to secure the warrant. Det. Laramy agreed that, in his January 25, 2015 review of the contents of the “phone dump” file, he was simply “gathering evidence.” Further, as I have indicated, the evidence that Det.Cst. Angus gathered from this review was provided to Det.Cst. Meredith to support his search warrant request.

[80] This evidence revealed, on the part of the police, a reckless disregard for the important privacy interests of the accused, and amounted to a serious violation of his constitutional rights under s. 8 of the Charter. In my view, this first prong of the governing analysis under s. 24(2) of the Charter points strongly toward the exclusion of the evidence.

3. The Impact of the Violation on [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)-Protected Interests

a. The Governing Legal Principles

[81] As to the impact of the Charter violation, the second prong of the test, the court must assess the extent to which the Charter breach undermined the Charter-protected interests of the accused. Of course, the more serious the impact on those protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value to citizens. The courts are expected to look at the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. See R. v. Grant, at paras. 76-78.

[82] The “discoverability” of evidence remains an important consideration, and serves a useful role, in realistically assessing the impact of a Charter breach on the constitutionally protected interests of an accused. The court is permitted to assess the strength of the causal connection between the Charter-infringing conduct and the resulting evidence. The more likely it is that the evidence would have been obtained in any event, even without the Charter-infringing conduct, the lesser the impact of the breach on the accused’s Charter-protected interests. The converse is also true. Accordingly, where the Crown is able to establish that the evidence that was obtained in a manner that infringed the Charter would inevitably have been discovered in any event, regardless of any Charter breach, this demonstrates that the Charter breach had little or no practical impact upon the Charter-protected interests of the accused. At the same time, in cases where “it cannot be determined with any confidence” whether the evidence would have been discovered in absence of the Charter-infringing conduct, discoverability will have no impact on the s. 24(2) Charter inquiry. See R. v. Grant, at para. 122; R. v. Côté, at paras. 65-70; R. v. MacMillan, 2013 ONCA 109, 114 O.R. (3d) 506, at para. 62-76; R. v. Johnson, 2013 ONCA 177, 297 C.C.C. (3d) 87, at para. 52.

[83] Recently, in R. v. Tsekouras, 2017 ONCA 290, [2017] O.J. No. 1768, Watt J.A., delivering the judgment of the court, affirmed the operation of this principle of discoverability, noting, at para. 112, that the “more likely that the evidence would have been obtained without the Charter-infringing state conduct, the lesser may be the impact of that Charter­infringing conduct on the underlying interests protected by the Charter right.” Watt J.A. also observed, however, that the “discoverability” of evidence is a “double edged sword” in that while it “may signal that the breach of the accused’s right was less serious,” it may also render the state conduct “more egregious” as the evidence was “discoverable” without breaching the accused’s rights under the Charter rights. See also R. v. Buhay, 2003 SCC 30. [2003] 1 S.C.R. 631, at paras. 60-61.

b. The Application of These Legal Principles

[84] The Crown contends that this conceded violation of s. 8 of the Charter did not have a significant impact upon the Charter-protected interests of the accused. More particularly, the Crown argues that the discovery of the evidence from the accused’s BlackBerry was inevitable as the police were going to obtain a search warrant to examine the device and, in fact, did secure a search warrant for the examination of the device just 10 days after Det.Cst. Angus conducted his examination of the “phone dump” file. I disagree. In my view, the warrantless comprehensive police review of the informational contents of the accused’s BlackBerry, through the January 25, 2015 examination of the “phone dump” file by Det.Cst. Angus, had a profound impact upon the Charter-protected interests of the accused.

[85] First, as the Supreme Court of Canada observed in R. v. Fearon, at para. 78, even a search warrant would not have given license to the police to “scour” the accused’s BlackBerry “indiscriminately.” Similarly, even if the warrantless review of the accused’s BlackBerry on January 25, 2015 had been lawfully undertaken, as being truly incidental to the arrest of the accused, or because it was still demanded by exigent circumstances, this would not have permitted the police to simply “rummage around in the device at will.” Rather, the nature and extent of the permissible search would have been restricted by the scope of its lawful justification. As the Supreme Court suggested in R. v. Fearon, generally speaking, “the search of the entire contents of a cell phone or download of its contents is not permitted” in such circumstances. Such limited search authority is not a “blank cheque for investigators to forage in the device unbounded,” to “search or download it entire content.” See R. v. Tsekouras, at para. 91. Yet, on January 25, 2015, and thereafter, Det.Cst. Angus admittedly conducted a comprehensive examination of all of the contents of the “phone dump” of the accused’s BlackBerry. See also R. v. Vu, at para. 61; R. v. Mann, 2014 BCCA 231, 310 C.C.C. (3d) 143, at para. 123; R. v. Hiscoe, 2013 NSCA 48, 328 N.S.R. (2d) 381, at paras. 63, 79.

[86] Second, the evidence that Det.Cst. Angus unlawfully gleaned from his warrantless, comprehensive review of the “phone dump” was subsequently relied upon by Det.Cst. Meredith in his ITO in support of the issuance of the February 4, 2015 search warrant in relation to the accused’s BlackBerry. In these circumstances the Crown can hardly rely upon the eventual issuance of the search warrant to argue that the evidence used to obtain the warrant would inevitably have been secured without the Charter-infringing conduct of the police. While it is certainly possible that this search warrant might have been issued in any event, I am far from convinced that the issuance of this warrant was inevitable. As the Supreme Court noted in R. v. Fearon, at para. 67, “at the point of arrest,” the “police will rarely have reasonable and probable grounds to believe that evidence of the offence will be found on the phone” seized as incident to that lawful arrest. Indeed, as I have indicated, in my view, the premature, warrantless review of the “phone dump” by Det.Cst. Angus on January 25, 2015 was undertaken in anticipation of the pending search warrant request, and to try to help ensure that the ITO of Det.Cst. Meredith supplied the necessary reasonable grounds to justify the issuance of the warrant. In any event, in my view it “cannot be determined with any confidence” that the evidence, gathered from the “phone dump” by Det.Cst. Angus on January 25, 2015, “would have been discovered in the absence of the Charter breach. Accordingly, “discoverability” can have “no impact on the s. 24(2) inquiry. See R. v. Grant, at para. 122; R. v. Côté, at paras. 65-70, 72.

[87] Even if, contrary to my findings, it could be confidently concluded that the police would have been able to secure a search warrant in any event, without reliance upon the evidence gathered during the January 25, 2015 warrantless review of the “phone dump,” this would not mean that there was no impact upon the privacy interests of the accused from the Charter-infringing conduct by the police. As the Supreme Court of Canada noted in R. v. Côté, at para. 73, a constitutionally protected “reasonable expectation of privacy” under s. 8 of the Charter “includes not only that proper grounds exist but also the requirement of prior judicial authorization. The purpose of s. 8 of the Charter is to prevent unreasonable searches before they take place. Accordingly, the absence of a search warrant, when one was legally required, constitutes a “significant infringement” of an accused’s right to privacy. See R. v. Côté, at para. 84. Further, the intrusiveness of the warrantless search will be assessed “according to the level of privacy that could have reasonably been expected” in the circumstances. “The greater the expectation of privacy, the more intrusive the unauthorized search will have been.”

[88] In the present case, the accused had a high level of privacy in the contents of his BlackBerry cell phone, and could reasonably have expected that the police would not have been able to conduct a comprehensive examination of all of its contents without obtaining prior judicial authorization. Accordingly, the warrantless examination of the “phone dump” from the accused’s seized BlackBerry would have had its own significant impact upon the Charter-protected interests of the accused, even if it could be said that a search warrant would inevitably have been issued. See R. v. Côté, at paras. 73, 84-85; R. v. Grant, at para. 78. As the Supreme Court of Canada noted in R. v. Paterson, at para. 49:

Where … the Charter-protected interest in privacy is at stake …, infringements arising from circumstances denoting a “high expectation of privacy” tend to favour exclusion of evidence, while — all other considerations being equal — infringements of lesser interests in privacy will not pull as strongly towards exclusion. As the Court said in Grant …: “An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.”

[89] In summary, in my view, the second prong of the governing analysis under s. 24(2) of the Charter also significantly favours the exclusion of the evidence obtained from the accused’s BlackBerry from January 25, 2015 and thereafter.

4. The Truth-Finding Function of the Trial

a. The Governing Legal Principles

[90] As to the third avenue of inquiry, the court must determine whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. The court must consider the impact of the admission of the evidence as well as the impact of failing to admit the evidence. The reliability of the evidence is, of course, an important factor in this step of the analysis. If the Charter violation has undermined the reliability of the evidence, this will support the exclusion of the evidence. However, the exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public and may tend to bring the administration of justice into disrepute. The importance of the evidence to the Crown’s case is also a factor to be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively terminates the prosecution. See R. v. Grant, at paras. 79-84; R. v. Paterson, at paras. 51-52.

b. The Application of These Legal Principles

[91] In the present case, there is no doubt that the evidence obtained from the accused’s BlackBerry is inherently reliable and includes objective pieces of evidence which are important to the overall determination of the merits of this case.

[92] More particularly, the key pieces of evidence from the accused’s BlackBerry, that are sought to be excluded by the accused, would tend to prove: (1) that the accused was, in December of 2014, aware of the details of the complainant’s home address and the vehicle he was driving; (2) that the accused, on January 6, 2015, was directing other individuals to a “way better spot” to “bring the man,” as it was “closer to the highway” and “no one is there;” and (3) that the accused was in possession of the image of the bag containing the $500,000 in ransom money that Det. Laramy sent to the abductors on January 12, 2015. This evidence might well aid the Crown in establishing that the accused was involved in the alleged offences of conspiracy and kidnapping for ransom.

[93] The exclusion of this evidence would not, however, cause the Crown’s case to necessarily falter. Defence counsel has fairly and candidly conceded that, even with the exclusion of the vast majority of the evidence from the accused’s cell phone, the accused is still clearly guilty, based upon the other evidence that remains available to the Crown, of at least the charge of “forcible confinement.” Indeed, defence counsel has repeatedly characterized this Charter application as, essentially, a “Gardiner hearing,” where the Crown is seeking to establish the “aggravating circumstances” of a case beyond a reasonable doubt, potentially justifying the imposition of an increased sentence. See R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368, [1982] S.C.J. No. 71. While this characterization of the Charter application is inaccurate, as the evidence in question is relevant to questions of guilt or innocence (not proof of aggravating circumstances relevant to sentencing for an offence), it aptly serves to make the point that the impugned evidence, if excluded, does not terminate the Crown’s case against the accused.

[94] In any event, this third prong of the governing analysis still favours, as it often does, the admission of the evidence under s. 24(2) of the Charter. The interest of society in the adjudication of criminal trials on their merits would not be advanced with the exclusion of this type of reliable evidence.

5. Another Consideration – The Second Search Warrant

[95] While that completes the individual consideration of each of the three prongs of the governing Grant/Harrison analysis, there is another factor which must be considered. It is the obtaining of the second search warrant in this case by the police.

[96] In my view, the September 17, 2017 application for the second search warrant in this case, to again be permitted to search the accused’s seized Blackberry cell phone was an abuse of the process of the court.

[97] The provisions of the Criminal Code which permit the police to invade the privacy of Canadian citizens in one way or another, through mechanisms such as search warrants, general warrants, telewarrants, DNA warrants, and wiretap authorizations, are designed to provide a procedural mechanism of prior judicial authorization for the employment of certain police investigative techniques to try to gather evidence of criminal activity. In other words, the very raison d’être of these statutory provisions is to provide a process of prior judicial authorization for certain types of police efforts to gather evidence.

[98] Of course, none of these statutory provisions exist to be surreptitiously employed by any party simply in order to try to gain some potential strategic advantage in pending criminal proceedings. Accordingly, it is wrong for any party to waste valuable judicial resources by taking steps to secretly co-opt the important process of prior judicial authorization, not for any bona fide evidence-gathering, investigative function, but only for some perceived tactical litigation advantage in a pending criminal case. Unfortunately, based on the testimony adduced on this Charter application, that is how the police abused the search warrant process in the present case in seeking, on September 17, 2017, their second search warrant for the accused’s seized Blackberry.

[99] As I have already noted, in his ITO in support of this second search warrant request, Det. Laramy expressly indicated that he believed that the accused’s BlackBerry contained “further evidence” in relation to the alleged offences, and “further evidence” tying the accused to the “planning and execution of the kidnapping” of the complainant. Moreover, in his ITO Det. Laramy indicated that he sought the search warrant for the “examination” of the BlackBerry, and to “conduct further searches of the data located on the BlackBerry.” However, once the warrant was issued, the police did not, in fact, conduct any further examination or search of the accused’s seized BlackBerry. In his testimony, Det. Laramy candidly admitted that this second warrant was not necessary, but was sought primarily in order to “show the court” (i.e. the trial judge) that all of the evidence from the BlackBerry was inevitably “discoverable” in any event, and that a warrant could have been obtained “at the time.” Det. Laramy also candidly agreed that this purpose was not articulated anywhere in his ITO. Remarkably, this abuse of the search warrant process was undertaken at the suggestion of the Crown, just a month prior to the scheduled commencement of these trial proceedings.

[100] This abuse of the search warrant process should not have been undertaken – and should not be repeated. Search warrant applications, like any similar prior judicial authorization process, must be pursued in good faith, and brought for the purpose for which the process was designed – to provide judicial authorization for police evidence-gathering investigative endeavours.

[101] This abuse of the search warrant process is a consideration that does not fit neatly into any aspect of the governing three-pronged Grant/Harrison test under s. 24(2) of the Charter. It did not result in any further evidence being collected, or even examined, or any further invasion of the privacy interests of the accused. It does not relate, at least not directly, to the seriousness of the Charter-infringing police conduct. It did not have any discernable impact on the Charter-protected interests of the accused. Society’s interest in the adjudication of this case on its merits is not directly affected by this consideration. However, it is a consideration that is connected, quite directly, to the very evidence whose admissibility is in question on this application. In any event, as I have already indicated, as s. 24(2) of the Charter directs, in determining the admissibility of evidence, the court must take into account “all of the circumstances.” Accordingly, this misconceived attempt to gain strategic advantage by the misuse of the search warrant process must be appropriately considered.

[102] In my view this consideration significantly supports the exclusion of the evidence. Courts cannot be perceived as in any way condoning such an abuse of the search warrant process – especially in a case where the Charter violation in question was a breach of the accused’s constitutional right to be “secure against unreasonable search or seizure.”

6. Conclusion

[103] There is no overarching rule that governs how these three Grant/Harrison factors should be weighed and balanced in all of the circumstances of each individual case. There is obviously no mathematical formula that may conveniently be applied. The balancing exercise is a qualitative one. In this assessment, no one factor is any more important than another factor, such that it effectively trumps consideration of the other relevant circumstances. However, the due consideration and balancing of these three factors provides a flexible and helpful decision tree regarding the admissibility of the evidence in issue. In all cases, it is the long-term repute of the administration of justice that must be assessed in determining the admissibility of the evidence. See R. v. Grant, at para. 86; R. v. Harrison, at para. 36; R. v. Sandhu, 2011 ONCA 124, 268 C.C.C. (3d) 524, at paras. 66-69.

[104] The careful balancing of these three important considerations, in the context of all of the circumstances of this case, leads me to conclude that the evidence obtained by the police from their detailed review of the accused’s Blackberry, from January 25, 2015 and thereafter, should be excluded under s. 24(2) of the Charter. The gravity of the breach of the accused’s Charter rights, and its impact on the Charter-protected interests of the accused outweigh, in all of the circumstances of this particular case, the importance of the truth-seeking function of the trial process.

[105] In these circumstances, it is important for the court to dissociate itself from the Charter-infringing conduct of the police, by excluding the bulk of the evidence from the accused’s BlackBerry, in order to preserve the long-term repute of the administration of justice. See R. v. McGuffie, at paras. 62-63; R. v. Paterson, at paras. 53-57; R. v. Davidson, 2017 ONCA 257, 352 C.C.C. (3d) 420, at paras. 53-54.

[106] This conclusion is only reinforced given the abuse of the search warrant process in the obtaining of the second search warrant on the eve of the trial proceedings in this case. However, I would have reached the same conclusion concerning the exclusion of the evidence even without considering the abuse of the search warrant process.

IV

Conclusion

[107] In summary, the police lawfully seized the accused’s BlackBerry cell phone upon his arrest on January 12, 2015, and lawfully and properly conducted, in the exigent circumstances that then presented themselves, cursory examinations of small aspects of the information found on that cell phone in order to try to locate and rescue the kidnapped complainant, who was in imminent risk of bodily harm or death. However, in subsequently conducting a warrantless and comprehensive search of all of the contents of the accused’s Blackberry on January 25, 2015, when there were no longer any exigent circumstances, when the search was no longer truly incident to the arrest of the accused, and when a search warrant could have been sought, the police violated the accused’s constitutional rights under s. 8 of the Charter.

[108] The fact that the police were subsequently able to secure a judicially authorized search warrant on February 4, 2015, permitting the police to undertake the search of the Blackberry that had already been effectively performed on data from the Blackberry from the “phone dump,” does not ameliorate the gravity of this breach of the Charter, or its significant impact on the Charter-protected interests of the accused. This search warrant was based, in significant measure, upon the earlier unconstitutional warrantless search of the “phone dump” data.

[109] In the result, the evidence as to the contents of the accused’s seized BlackBerry, that was reviewed by the police on January 25, 2015 and thereafter, must be excluded under s. 24(2) of the Charter. Accordingly, to that extent, the application by the accused is granted.

Kenneth L. Campbell J.

Released: November 14, 2017

CITATION: R. v. Powell, 2017 ONSC 6482

COURT FILE NO.: CR-17-5/709

DATE: 20171114

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• and -

DEWAYNE POWELL

PRE-TRIAL RULING ON

CHARTER APPLICATION

K.L. Campbell J.

Released: November 14, 2017