R. v. Malcolm, 2017 ONSC 7579

CITATION: R. v. Malcolm, 2017 ONSC 7579

COURT FILE NO.: CR-17-1/35

DATE: 20171218

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JUSTIN MALCOLM

S. Adams, for the Crown

E. Battagaglia, for Mr. Malcolm

HEARD: December 5-6, 2017

RULING ON CHARTER APPLICATIONS

SCHRECK J.:

[1] In April 2016, police officers listening to intercepted telephone calls came to believe that the applicant, Justin Malcolm, had threatened and assaulted a woman. Under the pretence of having received an anonymous telephone call, police officers attended the residence where they believed the applicant lived to check on the well-being of the residents. They spoke to a man alleged to be the applicant, but who gave a different name. The officer who attended the home purported to identify the applicant after having been sent a text of his photograph. While the photograph has been disclosed to the defence, the text was not preserved. Based on information from the intercepted calls, the police executed a search of the house where they believed the applicant resided and found a quantity of cocaine. The applicant was arrested and two cell phones was seized from his person. Although they had no warrant to search the phone, the police extracted the telephone number, which matched the number used on the intercepted telephone calls.

[2] The applicant is charged with assault, unlawful confinement, threatening, obstruct peace officer, and possession of cocaine for the purpose of trafficking. At the outset of his trial, he brought three Charter applications: a s. 7 application for a stay of proceeding based on “lost evidence”, namely, the deleted text message, and two s. 8 applications, one in relation to the search of the residence and one in relation to the phone. At the conclusion of the hearing of the applications, I gave brief oral reasons for dismissing the s. 7 application and the first s. 8 application and granting the second s. 8 application. At the time, I indicated the more detailed reasons would follow. These are those reasons.

I. OVERVIEW OF THE INVESTIGATION

A. The Intercepted Calls

[3] In 2016, the Toronto Police were involved in a large scale investigation of a number of people for drug and firearm offences. As part of the investigation, called “Project Sizzle”, the police obtained judicial authorization to intercept the private communications of a number of people, including a person named Sean Wright. In April 2016, the police intercepted a number of telephone calls between Mr. Wright and a person the police came to believe was the applicant, Justin Malcolm. During these calls, the person believed to be the applicant made statements which the police believed indicated that he was in possession of a firearm. As well, while speaking to Mr. Wright on April 10, 2016, the person also spoke to a woman who was apparently with him at the time and allegedly threatened her. In another call, the person believed to be the applicant said things which are alleged to be admissions that he had assaulted the same woman.

B. The Link Between the Calls and the Applicant

[4] The person the police believed to be the applicant used a specific telephone number, which was 647-472-XXXX. This number was registered to a person named Alexandria Thompson with an address on Mansfield Street in Brampton. The police conducted various database searches in relation to that address and discovered that the applicant had been associated with the address in relation to a domestic assault investigation in 2012. The police then conducted searches on the applicant’s name and discovered that he was bound by a recognizance dated January 22, 2016 in relation to a charge of driving while disqualified. The recognizance required him to reside at the address on Mansfield Street. The police also learned that the applicant had a criminal record which included convictions for possession of firearms.

C. The Visit by the Police

[5] Because of the alleged threats during the call on April 10, 2016, arrangements were made to have Peel Regional Police officers attend at the address on Mansfield Street in order to check on the well-being of the residents. Prior to their attendance, Det. Andrew Steinwall, one of the lead investigators on Project Sizzle, briefed Sgt. Gottshling of the Peel police. It was agreed that in order to protect the integrity of the investigation, the Peel police would tell the inhabitants of the house that they were responding to a call by a person who had heard screaming while walking by the house.

[6] Sgt. Gottshling and other officers attended the Mansfield Street address. They observed three people in the house: a woman in her 50s, another younger woman, and a man. The older woman refused to identify herself. The younger woman identified herself as R.V. and the male identified himself as Brandon Smart. The inhabitants all denied that there had been any kind of altercation and the officers did not observe any injuries on anybody.

D. The Texted Photograph

[7] After leaving the house on Mansfield Street, Sgt. Gottshling once again met with Det. Steinwall and advised him of what he had observed. Det. Steinwall believed that the man Sgt. Gottshling has spoken to was not Brandon Smart but was in fact the applicant. He told Sgt. Gottshling that he would text him a photograph of the person whom he believed had been in the house. The following day, Sgt. Steinwall texted a photograph of the applicant to Sgt. Gottshling. Sgt. Gottshling testified that he believed that the photograph he was going to receive was of the man he had seen at the house on Mansfield Street. He confirmed this when he received the photograph. Both Det. Steinwall and Sgt. Gottshling testified that the text contained only the photograph. Both officers deleted the texts from their respective phones.

E. The Search of the Residence

[8] On April 13, 2016, the applicant was arrested shortly after leaving the house on Mansfield Street. A search warrant was executed at that address at 1:30 p.m. No firearms were located. However, the police found a quantity of cocaine in a bedroom on the second floor.

F. The Search of the Phones

[9] The police seized two cell phones from the applicant’s person at the time of his arrest. On June 9, 2016, the phones were submitted to the Toronto Police Technological Crimes Unit for analysis. On December 12, 2016, a police officer from the Technological Crimes Unit examined the phones and extracted some data, but not their entire contents. The police had no warrant to search the contents of the phones.

II. THE LOST EVIDENCE APPLICATION

A. Overview

[10] As outlined earlier, Det. Steinwall sent Sgt. Gottshling a text of a photograph of the applicant. The photograph which Det. Steinwall says that he sent has been disclosed to the defence. However, the text of the photograph was deleted from both Det. Steinwall’s and Sgt. Gottshling’s phoned. This, the applicant claims, is “lost evidence”. As I understand the argument, the fact that the text was deleted prevents the defence from challenging the officers’ evidence that the text contained only the photograph and did not include any type of message.

B. The Timing of the Application

[11] Lost evidence applications are ordinarily heard at the end of the trial, when the court can best assess the degree of prejudice, if any, that the loss of the evidence occasioned: R. v. La, 1997 CanLII 309 (SCC), [1997] 2 SCR 680, at pp. 694-695. However, it may be appropriate to hear the application at the beginning of the trial where “the appropriateness of a stay is manifest at the outset of the proceedings”: R. v. Bero, (2000), 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.), at para. 18. Counsel for the applicant submits that this is such a case.

[12] In my view, not only is a stay of proceedings not “manifestly appropriate”, it is not at all clear to me that any evidence has been lost. The photograph that was texted has been disclosed. Counsel is free to suggest to the officers that a different photograph was texted, or that the text contained additional information. Even if the text ought to have been preserved and disclosed, the failure of the officers to do so does not come close to being the type of state misconduct that is so “offensive to societal notions of fair play and decency” such as to make this one of the “clearest of cases” in which a stay is warranted: R. v. Babos, 2014 SCC 16, at paras. 35-40.

D. Full Answer and Defence

[13] The applicant also claims that the loss of the text impairs his ability to make full answer and defence. As I understand the argument, the defence wishes to argue that the procedure whereby Sgt. Gottshling was asked to identify the applicant was so suggestive that his identification should be accorded no weight. Because the text is lost, it is unknown whether it included some sort of message that made it even more suggestive. I have some difficulty understanding how the procedure could be more suggestive than it was. However, I will defer a determination of this issue until the end of the trial, when the applicant is free to renew his s. 7 application should he wish to do so.

III. THE SEARCH OF THE RESIDENCE

A. Overview

[14] The warrant to search the Mansfield Street address was issued on the basis of an Information to Obtain (“ITO”) sworn by Det. Cst. John Johnston (“the affiant”). The grounds set out in the ITO are based on intercepted communications which, according to the affiant, establish that the applicant was in possession of firearms. The applicant takes the position that the ITO fails to set out sufficient grounds to establish that (1) the applicant was a party to the intercepted communications; (2) that the intercepted communications show possession of a firearm; and (3) that there was any basis to believe that evidence would be found at the Mansfield Street address. The applicant also submits that although the warrant was not executed at night, the fact that the warrant granted permission to conduct a night search invalidates the warrant as a night search was not justified in the circumstances.

[15] The applicant did not seek leave to cross-examine the affiant and for the most part challenges only the facial validity of the ITO. The sole exception to this is that he submits that the tainted identification procedure by which Sgt. Gottshling identified him should lead to the excision of that portion of the ITO which relates to this evidence.

B. Standing

[16] The Crown challenges the applicant’s standing to assert a s. 8 violation. Relying on the factors set out in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 45, Crown counsel points out that the applicant provided a different address at the time of his arrest, that when the police saw him come and go from the residence while conducting surveillance he did not appear to use a key, and that there was no evidence that he had the ability to admit or exclude others.

[17] At the conclusion of the application, I found that the applicant had standing based on the evidence of his occupancy of the house and the recognizance that required him to live there. Since then, the Supreme Court of Canada released its decision in R. v. Jones, 2017 SCC 60, where it was held that “counsel for a s. 8 applicant may ask the court to assume as true for s. 8 purposes any fact that the Crown has alleged or will allege in the prosecution against him”: Jones, at para. 32. In this case, the Crown alleges that the applicant resided at the Mansfield Street address, had sole occupancy of a bedroom there, and secreted illegal drugs and other personal effects in a drawer in the bedroom. In my view, if one assumes these facts to be true, the applicant clearly had a reasonable expectation of privacy and therefore has standing to assert a s. 8 claim.

C. Were the Requisite Grounds Established?

(i) Governing Legal Principles

[18] In reviewing the search warrant in this case, there are certain legal principles I must bear in mind. The first is that the warrant is presumptively valid: R. v. Pires; R. v. Lising, 2005 SCC 66, at para. 30. The applicant bears the burden of demonstrating that the warrant was not validly issued, that is, that the minimum standard required for authorizing the search was not established in the ITO: R. v. Crevier, 2015 ONCA 619, at para. 66. That standard is that there are reasonable and probable grounds to believe that an offence has been committed and that there is evidence of that offence to be found at the place to be searched: Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 168. “Reasonable and probable grounds” means a “credibly based probability” and does not mean “proof beyond a reasonable doubt” or even the establishment of a prima facie case: R. v. Morelli, 2010 SCC 8, at paras. 127-128. In assessing the grounds set out in an ITO, both the issuing justice and the reviewing court are entitled to draw reasonable inferences from the stated facts: R. v. Sanchez (1994), 1994 CanLII 5271 (ON SC), 20 O.R. (3d) 468 (Gen. Div.), at para. 20.

(ii) Grounds to Believe that the Applicant was the Person in the Calls

[19] In my view, the following information in the ITO establishes reasonable and probable grounds to believe that the applicant is the person in the intercepted communications:

• The telephone number used by the person was registered to somebody with a specific address on Mansfield Street in Brampton, an address the applicant was bound by a recognizance to reside at.

• The person mentioned having been arrested for impaired driving and the applicant has a conviction for that offence.

• The person was referred to on one of the calls as “Justin”, which is the applicant’s given name.

• The woman who was heard using the name “Justin” was referred to by the given name “R.”, which is the given name of one of the women who was at the house on Mansfield Street when the police attended there.

I have concluded that sufficient grounds were established without considering the identification evidence of Sgt. Gottshling.

(iii) Grounds to Believe That the Applicant Possessed a Firearm

[20] In my view, the following information in the ITO establishes reasonable and probable grounds to believe that the applicant (that is, a person whom there are grounds to believe is the applicant) was in possession of a firearm:

• The applicant is heard in one call saying that he “has 10 clips” in the context of a discussion about an informer who is “hard to kill” (although it not the applicant who says this).

• In another call, the applicant says that he feels like “picking up” and then makes what is described in the ITO as “machine gun sound”. I do not agree with the applicant’s submission that absent an audio recording, the affiant’s assertion that this was a “machine gun sound” is an unsupported conclusory statement. Rather, it is a description of a sound that would be familiar to anybody from television and movies.

• In another call, the applicant said “If they stop me, I’m blowing”, “I’m grabbing your 1 and 2 and blowing 2”, and “I have been deliberately rolling with it so when they pull me over, I’m blowing”. While not as clear, these statements, when considered in the context of the other statements, also support the conclusion that the applicant possessed firearms.

In addition to this, the applicant has four prior convictions for possession of firearms or ammunition. In my view, when all of this evidence is considered cumulatively, it makes out reasonable and probable ground to believe that the applicant possessed firearms.

(iv) Grounds to Believe There is Evidence at the Place to be Searched

[21] As outlined earlier, the ITO contained sufficient grounds to establish a connection between the applicant and the address on Mansfield Street. On April 10, 2016, the applicant told Mr. Wright that he “had 10 clips”. On the same day, the police used a “ping” (a technique whereby a global positioning system is used to determine the location of a cell phone) to determine that the phone being used by the applicant was at the Mansfield Street address. In addition to this, the other calls suggested that the applicant was in the habit of keeping firearms with him. In my view, there were grounds to believe that firearms would be found at the Mansfield Street address.

D. Authority to Execute the Warrant at Night

[22] The warrant was executed at 1:30 p.m. However, the police had sought and obtained authorization to execute it at night. The applicant submits that the requirements set out in s. 488 of the Criminal Code for an authorization to execute a warrant at night had not been met and that the authorization to execute the warrant at night therefore invalidated the whole warrant, even though it was ultimately not executed at night. This submission is without merit. Given that the police were seeking to seize dangerous firearms, the requirements of s. 488 were likely met: R. v. MacDonald, 2016 ONCA 244, at paras. 25-29. Even if they were not, at most this would lead to severance of that portion of the warrant which authorized execution at night, not the entire warrant: R. v. Persaud, 2016 ONSC 8110, at para. 188.

IV. THE SEARCH OF THE PHONES

A. The Breach

[23] When the applicant was arrested on April 13, 2016, the police seized two cell phones that he had on his person. On June 9, 2016, Det. Cst. Chant took the phones to the Toronto Police Intelligence Division Technological Crimes unit (“IDTC”) to be analyzed. He gave them to a civilian police employee, Roger Andrews, who logged them and produced a “Case Intake Report”. The Report included descriptions of the phones, the name of the officer in charge of the investigation, the case number, and other information. Under a heading entitled “Case Notes” were the words “Warrant” and “cell phone dump”, which means an analysis of the contents of the phone. The Intake Report was signed by Det. Cst. Chant as the “submitting officer” and by Mr. Andrews as the “IDTC intake officer”.

[24] Det. Cst. Chant testified that he was aware that a warrant was required to search the contents of a phone. When he submitted the phones, he did not know whether a warrant to search them had been obtained. In cases where he knew a warrant existed, it was his practice to include a copy of the warrant with the items he submitted for analysis.

[25] On December 12, 2016, Det. Cst. Garcia of the IDTC examined the phones. He testified that he was aware that searches of a phone’s contents required a warrant. It was his usual practice to request to see a warrant before analyzing a phone. However, because this warrant was from a “project case”, he believed that there was a warrant in existence for “devices that come in under the project”. In his experience, devices for which there was no warrant would “normally” be marked with a label that said “warrant pending” or “do not touch”. Also, because the word “warrant” was written on the intake form, he assumed that a warrant to search the phone was in existence.

[26] Although the form indicated that a “cell phone dump” was to be done, Det. Cst. Garcia only performed what he referred to as a “triage”. This was a preliminary examination of the phone to confirm that a full analysis could be done. It also included extracting some information from the phone’s SIM card, including the phone number and the identity of the carrier. He also determined that the phones were password protected. Det. Cst. Garcia explained that because there was a backlog of phones to be examined, his practice was to perform a “triage” and then await further instructions from the officer in charge.

[27] The Crown concedes that the warrantless search of the phones violated the applicant’s s. 8 Charter rights.

B. Section 24(2) of the Charter

(i) Governing Legal Principles

[28] Section 24(2) of the Charter allows a court to exclude evidence where admitting it would bring the administration of justice into disrepute. That determination requires the consideration of three factors: (1) the seriousness of the violation; (2) the impact of the violation on the accused’s Charter-protected interests; and (3) society’s interest in the adjudication of the case on its merits: R. v. Grant, 2009 SCC 32, at para. 71; Morelli, at para. 78. In considering these factors, I must remind myself that the focus here must be on the long-term and prospective effect of the remedy or lack of remedy: Grant, at paras. 68-70.

(ii) Seriousness of the Violation

[29] Under this heading, the court must locate the conduct of the police on a “continuum of misconduct” or “spectrum of seriousness”: Grant, at para. 74; R. v. Rocha, 2012 ONCA 707, at para. 15; R. v. Blake, 2010 ONCA 1, at para. 23. At one end of the continuum are minor, inadvertent or technical violations. At the other are breaches that are intentional or which result from a flagrant disregard for the Charter.

[30] Crown counsel concedes that the breach in this case was serious because it involved a warrantless search. She submits, however, that the seriousness is mitigated by the fact that the officers involved acted in good faith. I do not accept that there was good faith in this case.

[31] In my view, a police officer engaged in any kind of search that requires judicial authorization is duty bound to satisfy him or herself that the authorization exists. In this case, Det. Cst. Garcia simply assumed that a warrant existed. None of his various explanations for making that assumption are satisfactory. At best, the officer was extremely careless in conducting a search without confirming that he was authorized to do so. Such carelessness renders the breach serious and precludes a finding that the police acted in good faith: R. v. Paterson, 2017 SCC 15, at para. 44; Rocha, at para. 36.

[32] Crown counsel also relies on the fact that Det. Cst. Garcia only conducted a “triage” of the phone rather than a full “cell phone dump”. In my view, while this is relevant to the impact of the breach on the applicant’s Charter-protected interests, it does not mitigate the seriousness of the breach. Det. Cst. Garcia’s decision not to do a full analysis of the phone was due to the fact that there was a backlog and had nothing to do with any concerns about proper judicial authorization.

(iii) The Impact of the Breach

[33] As Crown counsel points out, only limited data was extracted from the phone and the impact of the breach was far less significant than it could have been. As noted earlier, this was because of a backlog and not due to any concerns the police had about respecting the applicant’s Charter rights. The information that was extracted was the telephone number, which the Crown wishes to rely on to link the applicant to the intercepted telephone conversations.

[34] In my view, the applicant had a reasonable expectation of privacy with respect to information that was extracted. The phone was password protected. On the police theory, the phone was registered under a false name in order to hide the applicant’s association with the number. While there may not be a privacy interest in a telephone number by itself, the number can lead to information about when and with whom a person had contact. In assessing a privacy interest, the court must look at “not only the nature of the precise information sought, but also at the nature of the information that it reveals”, including “any inferences about associations and activities that can be drawn from that information”: R. v. Spencer, 2014 SCC 43, at paras. 26-31; R. v. Marakeh, 2017 SCC 59, at paras. 15, 20; R. v. Telus Communications Co., 2015 ONSC 3694, at para. 42.

[35] On the other hand, had the police sought a warrant, it is likely that one would have been granted. The fact that the evidence was otherwise discoverable tends to lessen the impact of the unlawful search, although it does not eliminate it entirely: R. v. Côté, 2011 SCC 46, at paras. 72-73.

[36] Having considered all of these factors, in my view the impact of the breach in this case was moderately low.

(iv) Society’s Interest in an Adjudication on the Merits

[37] A consideration of society’s interest in an adjudication of the case on its merits usually involves a consideration of two factors: the reliability of the evidence and the importance of the evidence to the prosecution’s case: Grant, at paras. 81-83. There is no issue that the evidence in this case is reliable. However, the evidence is not crucial to the Crown’s case. As Crown counsel acknowledges, the Crown is in possession of other evidence that it can rely on to seek to prove that the applicant was the person speaking in the intercepted telephone calls. This is not a case where exclusion of the evidence would “gut” the prosecution.

(v) Balancing

[38] In this case, the first factor favours exclusion, as does the second factor, although to a lesser extent. The third factor is, in my view, largely neutral. Having balanced all three factors, I conclude that the long term reputation of the administration of justice requires the court to disassociate itself from the conduct of the police in this case. The requirement for judicial authorization prior to the conduct of a search is the method whereby the privacy of citizens is protected by ensuring that that privacy will only be interfered with where it is necessary. That protection is meaningless unless the police takes step to ensure that judicial authorization actually exists before conducting searches. As a result, the evidence obtained by the search of the phone is excluded.

V. DISPOSITION

[39] For the foregoing reasons, the application to stay the proceedings is dismissed without prejudice to the applicant to renew it at the conclusion of the trial. The application to exclude the evidence obtained from the search of the residence is dismissed. The application to exclude the evidence obtained from the search of the phone is granted.

Justice P.A. Schreck

Released: December 18, 2017.

R. v. Malcolm

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JUSTIN MALCOLM

RULING ON CHARTER APPLICATIONS

P.A. Schreck J.

Released: December 18, 2017