R. v. Merritt, 2017 ONSC 80

CITATION: R. v. Merritt, 2017 ONSC 80 COURT FILE NO.: CRIMJ(P) 1459/16 DATE: 2017-01-05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

• and -

MELISSA MERRITT and CHRISTOPHER FATTORE Applicants

COUNSEL: Brian McGuire and Eric Taylor, for the Crown David Berg and Joel Hechter, for Melissa Merritt Peter Zaduk and Daisy McCabe-Lokos, for Christopher Fattore

HEARD: November 9, 14, 15, 16, 17, 18, 23, 25, 28, 29, 2016 at Kitchener

RULING No. 4: Application to Exclude Evidence Pursuant to ss. 8, 10(b) and 24(2) of the Charter (Pyramid I)

RESTRICTION ON PUBLICATION Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

F. DAWSON J.

Introduction

[1] Melissa Merritt and Christopher Fattore are each charged with the first degree murder of Caleb Harrison on August 23, 2013. The accused are also jointly charged with the first degree murder of Caleb Harrison’s mother, Bridget Harrison, on April 21, 2010. Christopher Fattore is charged with second degree murder in relation to the death of Caleb Harrison’s father, William Harrison, on April 16, 2009.

[2] Melissa Merritt and Caleb Harrison were previously married. They had two children together. They were involved in protracted custody and access litigation relating to their two children during the time frame of all three of the alleged murders.

[3] Ms. Merritt and Mr. Fattore are common law partners. They have four children together.

[4] Dozens of production orders and search warrants were obtained during the police investigation in this case. Subsequent production orders and search warrants, as well as two authorizations to intercept private communications, were obtained relying in part on the evidence and information obtained from the execution of the earlier production orders and warrants.

[5] Crown counsel does not seek to introduce evidence obtained from all of the orders or warrants, but does seek to introduce evidence pursuant to a few of the orders or warrants and pursuant to the two wiretap authorizations.

[6] Counsel for the accused have commenced pretrial applications challenging numerous production orders and warrants and both authorizations. They have done so for the purpose of having information obtained in alleged contravention of s. 8 of the Charter excised from subsequent informations to obtain (ITOs). Their objective is to establish that the orders, warrants and authorizations which the Crown does rely upon to admit evidence are constitutionally unsound pursuant to s. 8 of the Charter, leading to their request for the exclusion of that evidence pursuant to s. 24(2) of the Charter.

[7] Due to the number and interconnected nature of the various s. 8 challenges it has been necessary to break the application down into manageable pieces. Consequently, I have directed that the accuseds’ s. 8 submissions should be molded into five or six conceptual “pyramids”. At the top of each pyramid sits an item or category of evidence which the Crown seeks to admit and the accused seek to exclude pursuant to ss. 8 and 24(2) of the Charter. Below in each conceptual pyramid lie the various production orders, warrants and seizures which support the judicial authorization on which the admissibility of the challenged evidence at the top of the pyramid depends. Arguments related to constitutional and other violations which could lead to excision of information contained in the subsequent ITOs can then be advanced in a more orderly and understandable fashion.

Pyramid I

[8] Pyramid I deals with the admissibility of an electronic “PDF” file found on a cell phone registered to Mr. Fattore and used jointly by the two accused. The electronic file contains diagrams and information about the type of door lock that was on the front door to the residence where the bodies of each of the three deceased were found.

[9] The cell phone in question was seized from Melissa Merritt without a warrant. It was taken from her towards the end of a five hour long pre-arrest interview conducted by Det. Derek Rice on August 26, 2013. The cell phone was not examined until a search warrant was obtained pursuant to s. 487(1) of the Criminal Code.

[10] Prior to obtaining that warrant a number of things occurred in the few days the police investigation of Caleb Harrison’s death had been underway. The police used Caleb Harrison’s email account, which was found open at his workplace, to access his iCloud account. By this means the police were able to activate the “find my phone” feature of Caleb Harrison’s missing cell phone. Once that phone was located the police looked through it and garnered contact information for the accused. The police also sought and obtained a production order to obtain the subscriber records for Caleb Harrison’s phone.

[11] Relying, in part, on information obtained by these means the police applied for two production orders for the cell phone records of two cell phones registered to the accused. Information for one of those cell phones, with the number ending in “1614”, which was the cell phone seized without warrant from Melissa Merritt, was referred to in the ITO to obtain the search warrant relied upon to examine that phone. That examination led to the finding of the PDF file sought to be excluded under Pyramid I.

Pyramid I Issues - Overview

[12] Many issues are raised. The accused contend that the warrantless seizure of the phone constituted a detention in the circumstances, leading to an alleged s. 10(b) violation because Ms. Merritt was not advised of her right to counsel at that time.

[13] The accused also challenge the seizure of the “1614” cell phone pursuant to s. 8 of the Charter. As the seizure was without warrant the Crown bears the burden of establishing the reasonableness of that seizure on a balance of probabilities.

[14] The accused also submit that s. 8 Charter violations occurred in searching the deceased Caleb Harrison’s cell phone and open email account on August 25, 2013. They submit this should lead to excision of the resulting information from subsequent ITOs. The Crown submits that the accused have no standing to mount that challenge as they have no reasonable expectation of privacy in Caleb Harrison’s cell phone or email accounts.

[15] Similar arguments are mounted by both sides in relation to the production order obtained for the records for the deceased’s phone. Standing is contested.

[16] On August 25, 2013 the affiant in respect of all of the production orders and warrants at issue under Pyramid I, Cst. Aaron Meisner, contacted the telephone service provider and obtained subscriber information in relation to the cell phone number ending “1614” which was seized from Ms. Merritt the following day. No tower use information was obtained. The accused submit this information was obtained in violation of s. 8. The Crown takes the position that the accused have no reasonable expectation of privacy in the bare subscriber information that Cst. Meisner obtained without a warrant.

[17] The accused also challenge the admissibility of conversations with Ms. Merritt and Mr. Fattore on August 24, 2013 and with Ms. Merritt on August 25, 2013. The police spoke briefly with the accused on those days at or outside their home. The conversations were recorded using a small digital recorder. The accused submit that an authorization pursuant to Part VI of the Criminal Code was required with respect to the recordings of the August 24 and 25, 2013 conversations.

[18] Crown counsel initially took the position that this was not a private conversation and no Part VI authorization was required to record it. Subsequently, and for the purpose of expediting matters in relation to Pyramid I only, Crown counsel agreed that reference to these recorded conversations could be edited out of the ITO for the warrant relied upon to examine the contents of the cell phone seized from Ms. Merritt. Consequently, I need not deal with that issue at this time.

[19] Crown counsel concede that the accused have standing to allege s. 8 violations in relation to the production order for the records to the “1614” cell phone seized from Ms. Merritt.

[20] Crown counsel also agree that the accused have standing in relation to the production order for the records to another cell phone with a number ending in “6260”. A phone with that number was registered to Melissa Merritt. While the police obtained information about that phone when searching Caleb Harrison’s phone and during their warrantless subscriber inquiries of service providers, that phone number was not referred to in the ITOs for the production order or the warrant in relation to the “1614” cell phone. Consequently, there is no need to determine whether there was any constitutional violation in relation to the production order for the “6260” phone in connection with the issues arising under Pyramid I.

Did Seizure of a Cell Phone from Melissa Merritt on August 26, 2013 Constitute a Detention Leading to a Violation of s. 10(b) of the Charter?

[21] On August 26, 2013 Melissa Merritt voluntarily attended at the Homicide Bureau for a police interview. The interview lasted from approximately 9:21 a.m. to 2:51 p.m. It was conducted by Det. Derek Rice. The interview was audio and video recorded.

[22] I previously ruled that the resulting statement was voluntary and that there were no violations of s. 7 of the Charter. As the application to exclude the statement on the basis of ss. 10(b) and 24(2) of the Charter was filed late it could not be dealt with during the statement voir dire. As the detention is alleged to have arisen from the warrantless seizure of a cell phone from Ms. Merritt during the interview it was agreed that this application would be dealt with together with s. 8 Charter violations alleged in relation to the seizure of the cell phone.

Seizure of the Cell Phone

[23] I will focus on the evidence related to the seizure which is most relevant to the detention issue. Other evidence will be referred to later when I deal with the s. 8 issues. I will refer to time stamps from the video that are reflected in a transcript of the interview and to page numbers from the transcript. The transcript of the five and a half hour interview is 264 pages long.

[24] The cell phone was seized from Ms. Merritt shortly after a break in the interview that took place from 2:29 to 2:33 p.m. (p. 250). Det. Rice testified that during each break in the interview he spoke to Cst. Maiseneuve, who was remotely monitoring the interview. On some of the breaks he also spoke to Det. Kristine Arnold, who was the lead investigator. He spoke to both officers during this particular break. I am satisfied that it was during this break that Det. Arnold instructed Det. Rice to seize the cell phone that Ms. Merritt had with her during the interview.

[25] When Det. Rice re-entered the interview room at 2:33 p.m. (p. 250) he told Ms. Merritt they were “all done” but added that there was “one final thing”. He then asked her about the cell phone she had with her. She confirmed that it was the “family phone” and that it was registered to Christopher Fattore. Det. Rice then told her that he was “being asked to seize that from you as evidence”. He was speaking in a low key and friendly manner, as he had throughout the interview.

[26] Det. Rice then added that Ms. Merritt could give the phone to him voluntarily but said that “either way I’m gonna have to take it.” He then immediately said that he would go and get her a replacement phone right away and deliver it to her for her family to use while the seized phone was being examined. He explained that the police had done the same thing with respect to Caleb Harrison’s girlfriend’s phone. Det. Rice then said, “We do warrants on people’s phones, just to make sure that everything’s as it seems.” He asked Ms. Merritt if that was all right with her. She responded, “I guess.” At that point she can be seen on the video handing the phone across the table to Det. Rice (p. 251).

[27] At pp. 251-52 there is a discussion between Det. Rice and Ms. Merritt about the seizure of the phone and what will happen to it. Ms. Merritt asked what would happen if she did not give the phone to the officer. By that point she had turned the phone over. However, Det. Rice left the phone sitting on the table. During what followed the video shows that Ms. Merritt picked the phone up at times without any intervention or concern by Det. Rice. Det. Rice responded to Ms. Merritt’s question by saying that if she did not give it to him he would have to seize it.

[28] At this point I would inject that no one is suggesting that the cell phone was obtained from Ms. Merritt on the basis of informed consent. The Crown acknowledges that the phone was seized but disputes that the seizure constituted a detention based on a full consideration of all of the surrounding circumstances.

[29] Det. Rice also told Ms. Merritt that he was not going to fight her for the phone. It is apparent that his approach was to maintain rapport with Ms. Merritt and to obtain her cooperation in turning over the phone. While Ms. Merritt asked a number of questions and said she had some concerns because it was Mr. Fattore’s phone, she also laughed or chuckled and smiled on more than one occasion during the video recorded discussion transcribed at p. 251 and following.

[30] The approach I have described that was taken by Det. Rice and the cooperative attitude, including smiles by Ms. Merritt, was characteristic of almost the entire interview. It continued on until Ms. Merritt exited the interview room at 2:51 p.m. (p. 264).

[31] During the course of the discussion from p. 251 to the end of the interview Det. Rice explained that the police were seizing the phone on the basis of exigent circumstances. He said the police would get a warrant to examine the contents of the phone. He said the police understood that she had an expectation of privacy in her phone. He also said that their concern was that evidence could be lost or destroyed and that the police did not have time to get a warrant before she left with the phone.

[32] During the interview it had been discussed that Ms. Merritt used that cell phone to communicate with the deceased and ex-husband, Caleb Harrison, about shared access to their children. Ms. Merritt told Det. Rice she had used that phone to text Caleb Harrison on August 23, 2013. That was the day he was found dead. Det. Rice confirmed that the police were interested in text messages and phone calls. I conclude that Ms. Merritt would have understood that the police considered the cell phone to have evidential value for that reason.

[33] Det. Rice told Ms. Merritt that she was not considered to be a suspect and that he felt she had been truthful with him about everything, except one thing that he said did not really matter. He also asked her for the password for the phone. He explained that having the password would assist the police in examining the phone and returning it to her more quickly. Det. Rice told Ms. Merritt (at p. 255) that she did not have to give him the password. Ms. Merritt readily agreed to provide the password and drew a diagram to explain it.

[34] Ms. Merritt expressed a concern about losing things that were on the phone. She mentioned photographs of her children. Det. Rice assured her that nothing would be deleted or removed from the phone.

[35] As Ms. Merritt was preparing to leave the interview room Det. Rice apologized for the delay and thanked Ms. Merritt for her patience. Ms. Merritt then proceeded to the parking lot and left in her vehicle.

The Positions of the Parties

[36] Mr. Hechter submits that Ms. Merritt was detained because she was under the control of the state when Det. Rice told her he would take the phone if she did not give it to him. She was not free to leave the room with the cell phone. However, Mr. Hechter added that freedom to leave the room is not the test. He referred to R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33, at para. 4, and emphasized the last sentence of that paragraph. There the court said that a detention is established “when a reasonable person would conclude that he or she had been deprived of the liberty of choice …” Continuing to emphasize the theme of liberty of choice as a basis upon which to find detention, Mr. Hechter also referred to R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, making specific reference to the concluding words of para. 50. There the court said that Mr. Grant was detained in the circumstances he found himself in because a reasonable person would conclude that his “right to choose how to act had been removed” by the conduct of the police.

[37] Against the background of these comments by the Supreme Court of Canada, Mr. Hechter submits that Ms. Merritt was detained because she was not free to choose whether to hand over the phone. He submits that detention continued beyond seizure of the phone because Ms. Merritt continued to ask what would happen to the phone and exhibited concern for the phone. In this regard, counsel submits that Ms. Merritt was clearly in need of legal advice and relies upon that as an additional factor suggesting she was detained for the purpose of s. 10(b) of the Charter. Counsel submits that Det. Rice was purporting to provide legal advice to Ms. Merritt and that much of it was incorrect and misleading. He also submitted that the seizure of the cell phone was not complete until the password was obtained.

[38] Crown counsel acknowledges that, taken in isolation, the comments in Suberu and Grant referred to by Mr. Hechter appear to support the submission that Ms. Merritt was detained. However, Mr. McGuire submits that what is missing from the accused’s submission is recognition of the importance of a finding that an individual’s liberty interest has been suspended by a significant physical or psychological restraint. That requirement is set out in Grant, at para. 44. Mr. McGuire submits that an examination of all of the surrounding circumstances reveals that no significant restraint was placed on Ms. Merritt’s liberty interest. While the circumstances had the potential to evolve into a detention, things never went that far. While no one suggests there was informed consent, the police explained that they were executing a legal process and Ms. Merritt decided to cooperate. She remained free to challenge the legality and constitutionality of the seizure at a later point in time. The situation did not turn into a physical or psychological detention. Relying on Grant, at para. 21, Mr. McGuire submits that the seizure of the cell phone did not take place in such a way that Ms. Merritt was taken into the control of the state leading to her needing legal advice to protect herself against self-incrimination or to assist her in regaining her liberty.

Applicable Legal Principles

[39] Although the cases were not heard together, the judgments of the Supreme Court of Canada in Grant and Suberu were released the same day. In Grant, at para. 43, the court indicated that whether an individual is detained will “depend … on all the circumstances of the case” and will be a question for “the trial judge to determine on all of the evidence.”

[40] The test and factors to be considered when determining whether someone is detained are described in Grant, at para. 44:

In summary, we conclude as follows:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[41] In Suberu the majority emphasized that not every interaction between the police and a member of the public which leads to some delay or inconvenience will result in a finding of detention. At para. 3 the majority held that ss. 9 and 10 of the Charter “are not engaged by delays that involve no significant physical or psychological restraint”. This approach is consistent with a “purposive approach to the definition of detention”: Grant, at para. 21.

[42] In regard to the connection between a “purposive approach” and the requirement that any suspension of an individual’s liberty interest be “significant”, I would refer to what was said at para. 24 of Suberu:

As explained in Grant, the meaning of "detention" can only be determined by adopting a purposive approach that neither overshoots nor impoverishes the protection intended by the Charter right in question. It necessitates striking a balance between society's interest in effective policing and the detainee's interest in robust Charter rights. To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter.

[43] In reaching my decision I have also taken into account what was said by Martin J.A. in R. v. Moran (1987), 36 C.C.C. (3d) 225 (Ont. C.A.), at pp. 258-59. There Justice Martin set out a non-exhaustive list of factors to consider in determining whether a person who subsequently is an accused was detained during an interview at a police station. While the list does not contemplate detention resulting from a warrantless seizure of an item, the factors reflect a need to carefully consider whether the police regarded the person as a suspect, the nature of the questioning and whether the person was confronted during the interview. Justice Martin noted that the subjective belief of the accused was relevant but not determinative as the test is fundamentally objective, but with the personal circumstances, such as age, intelligence, emotional state and level of sophistication being taken into account.

Analysis

[44] After considering all of the surrounding circumstances, including the nature of the entire interview, where it was conducted, how it was conducted, what Ms. Merritt was told, how she reacted and the state of the police investigation at the time, to name just a few, I conclude Ms. Merritt was not detained when the cell phone was seized form her. While I accept that there was a degree of psychological restraint associated with her being told she had no choice but to turn the cell phone over to the police, when I consider all of the surrounding circumstances I am not persuaded that, viewed objectively, it was a significant restraint when evaluated purposefully from the point of view of the interests which s. 10(b) of the Charter is intended to protect.

[45] This was not a situation where there was a danger of self-incrimination that arose from what occurred when Det. Rice said he had been instructed to seize the phone. The focus is not on what might have been stored in the phone but upon whether the demand for the phone placed Ms. Merritt within the control of the state such that she required legal advice to protect herself against self-incrimination or to regain her liberty.

[46] I point out that Ms. Merritt never lost her physical liberty. She was told at the outset of the interview that she was not in custody and was free to leave at any time. She was also told that she could speak to a lawyer at any time. She left the interview room on her own from time to time to use the washroom. She even left the building on her own and went out to the parking lot to get the phone that was eventually seized from her. She did that so that she could let Mr. Fattore know that the interview was taking longer than anticipated. She went to get her phone from her vehicle after declining Det. Rice’s offer to let her use his phone to make any such calls.

[47] Although not pressed in oral argument, in written material it was submitted that Det. Rice manipulated Ms. Merritt over the course of the interview in order to have her go to her vehicle and get her phone so that it could be seized. Det. Rice denied that. I have examined the aspects of the evidence that were referred to and I conclude that I accept what Det. Rice said on this point.

[48] Ms. Merritt might have become physically detained had she decided to resist giving her phone to Det. Rice. However, things did not get to that point. Det. Rice was very diplomatic in the manner in which he handled the situation. While not everything he said was correct from a legal standpoint, I am satisfied that he was not intending to give Ms. Merritt legal advice but was simply trying to explain to her what was happening and why. This is not a situation in which the prosecution is relying on informed consent to justify seizure of the cell phone.

[49] At the end of the interview Ms. Merritt left the interview room and left the building. She was not arrested and charged until five months later.

[50] Turning to whether there was a significant psychological detention, I would point to a number of things. First, this was not a situation where there was a legal obligation to turn over the phone, in the sense that there was no legal penalty that the law imposed for failing to do so. This is quite unlike a breath demand made by the police in a drinking and driving case.

[51] If Ms. Merritt would have chosen not to turn over the cell phone a situation may well have developed where there was an obvious physical or psychological detention. But just as it did not get to that point in terms of a physical detention, I conclude that it did not get to that point in terms of a psychological restraint that reached the level required for a finding of detention.

[52] There are a number of factors I would emphasize. First, while not in any way determinative, Ms. Merritt did not testify and I have no direct evidence of her subjective view as to the degree of psychological compulsion she felt subjected to.

[53] Second, I conclude that a host of objective indicators all point away from a finding of a suspension of Ms. Merritt’s liberty interest by a significant psychological restraint. It is inherent in Ms. Merritt’s submissions that she concedes that she was not detained prior to the seizure of her cell phone. In a previous ruling I found the statement to be voluntary. The video of the interview demonstrates that throughout the interview Det. Rice maintained a friendly demeanour. Ms. Merritt spoke freely and did much of the talking. Despite the fact that Det. Arnold regarded Ms. Merritt as a suspect at that point, Det. Rice was not aware of that. As I found in my earlier ruling, he did not regard Ms. Merritt as a suspect until after August 29, 2013 when garbage seized from the front of the Merritt and Fattore residence revealed items that tended to implicate the accused in the commission of the crime. Det. Rice told Ms. Merritt that he did not consider her to be a suspect.

[54] Based on the video, I conclude that Det. Rice’s approach to the entire interview was to maintain a good rapport with Ms. Merritt and to keep things on a friendly basis. This is reflected on the video in the many times Ms. Merritt laughed, chuckled or smiled during the interview. This continued even after the matter of seizing the cell phone arose. Within a minute of Det. Rice saying that he had been instructed to seize the phone Ms. Merritt passed the phone across the table to him. From that point on there was a discussion about the phone, what would be done with it and about getting a replacement phone. However, there was never any confrontation.

[55] While Ms. Merritt was clearly told that she had no choice but to turn the cell phone over to the police, nothing was ever said or done that purported to restrict her ability to leave the room provided she left the phone with the police. The police were executing a seizure without a warrant in circumstances where they believed they had grounds to do so. Ms. Merritt was advised of the basis on which the police were seizing the phone. As I have said, she had no need of legal advice to prevent self-incrimination or to regain her liberty. She was free to contest the seizure of the phone later.

[56] As indicated by the majority in Suberu in the passage previously quoted from para. 24, a balance must be struck between society’s interest in effective policing and an individual’s interest in Charter protection, with the balance neither overshooting nor impoverishing “the protection intended by the Charter right in question”. A finding that detention necessarily arises in all cases where an individual loses a degree of choice because the police are executing what they believe to be a lawful power to seize evidence, where the individual’s liberty interest is not otherwise or more substantially impeded, would, in my view, overshoot the mark and not draw a proper balance. That is why all of the circumstances must be considered and the question of the degree or significance of the psychological restraint evaluated.

[57] I recognize that Ms. Merritt was in a police facility and had undergone a lengthy interview process prior to being told by Det. Rice that she had to give him her phone. However, she had arrived voluntarily and readily participated in the process which was friendly and non-confrontational. She was aware of her rights and had been told she could leave at any time.

[58] The situation I am dealing with is very unlike that in Grant. Mr. Grant was a young man who was confronted on the street by three police officers. The court considered whether Mr. Grant could chose to simply walk away: para. 25. The facts of the case as set out by Laskin J.A. in the judgment of the Court of Appeal for Ontario are instructive: R. v. Grant (2006), 81 O.R. (3d) 1, [2006] O.J. No. 2179, at para. 29. In the first bullet point in para. 29, Laskin J.A. points out that the first officer stood in front of Mr. Grant, blocked his path and told him to keep his hands in front of him where the officer could see them. He noted that from the outset the officer took control over Mr. Grant’s physical movements. Two plain clothes officers then took up positions behind the first officer. All were bigger than Grant.

[59] In the third bullet point Laskin J.A. mentioned that as Mr. Grant moved to one side or the other, the officers moved in the same direction in order to maintain their relative positions. As Laskin J.A. put it, the officers “effectively formed a small phalanx blocking the path” of Mr. Grant.

[60] I find the situation in the present case to be a far less significant interference with liberty interests than existed in Grant. Despite the fact that Ms. Merritt was in a police station Ms. Merritt knew she was free to leave. She understood the police were insisting she provide them with her phone pursuant to a legal power which Det. Rice explained to her and which he said the police believed was applicable. She had also been advised at the outset of the interview that she need not say anything and could call a lawyer at any time. Without further confrontation she handed over the phone. Det. Rice answered her questions. She provided the password to the phone after being told she had no obligation to do so.

[61] In my view it has not been established that Melissa Merritt was detained in connection with the seizure of her cell phone. Consequently she has failed to discharge her onus of establishing a violation of s. 10(b) of the Charter and there is no need to consider exclusion of any evidence on this basis pursuant to s. 24(2) of the Charter. This application fails.

Was the Warrantless Seizure of the Cell Phone from Melissa Merritt on August 26, 2013 Lawful?

[62] Det. Arnold was the lead investigator. She instructed Det. Rice to seize the cell phone and he complied. I am satisfied that instruction was given to Det. Rice during the break in the interview between 2:29 and 2:43 p.m. (p. 250). The direction to seize the phone was given following a brief discussion between the officers after Det. Rice advised Det. Arnold that Ms. Merritt had a cell phone with her.

[63] Det. Arnold testified she was relying on the provisions of s. 487.11 of the Criminal Code as her authority to seize the cell phone. That section provides that a peace officer may exercise any of the powers provided for in s. 487(1) of the Criminal Code “without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it may be impracticable to obtain a warrant.”

[64] Both Det. Arnold and Det. Rice explained their views that there were reasonable grounds to believe that an examination of the cell phone would provide evidence in respect of the investigation into the murder of Caleb Harrison and that there were exigent circumstances. However, as the seizure was made based on the instruction given by Det. Arnold it is common ground that the focus is on Det. Arnold’s grounds pursuant to R. v. Debot, [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118. Therefore, while Det. Rice was asked some questions about the grounds for the seizure most of counsel’s questions were directed to Det. Arnold’s grounds.

[65] At this point I would comment that Det. Arnold and Det. Rice had very different views of the status of Melissa Merritt in the investigation. I dealt with this in some detail in my previous ruling relating to the admissibility of the pre-arrest statements of both accused.

[66] Det. Rice did not view Melissa Merritt as a suspect because he did not consider that there was a sufficient basis to conclude that she was implicated in the offence. However, as one of the persons who was connected to Caleb Harrison and who was one of the last persons to see him alive, he recognized her importance to the investigation. Det. Rice adopted all of his evidence from the previous voir dire.

[67] This would explain why, in relation to grounds for the seizure, Det. Rice said during cross-examination that he knew there would be evidence on the cell phone but that he did not believe it would be evidence of Ms. Merritt’s guilt. He also said that cell phones are always important in homicide investigations. However, he did not consider seizing the phone until he was instructed to do so. He also said that he would not have seized the cell phone if he did not think there were exigent circumstances. Counsel did not pursue this issue with Det. Rice to any degree.

[68] Det. Arnold regarded both Melissa Merritt and Christopher Fattore as suspects since at least August 24, 2013. During the prior statement voir dire she testified at length about her reasons for holding that view. Counsel agreed that all of the evidence from the statement voir dire should be applied to this pretrial application.

[69] Det. Arnold explained that her conclusion that Melissa Merritt was a suspect formed part of her grounds for believing that the requirements of s. 487.11 had been met. It seems to me that her determination that Ms. Merritt was a suspect fuelled her conclusion that there was an imminent danger that the evidence available from the cell phone would be lost, removed or destroyed if the cell phone was not seized during the interview.

[70] In my previous ruling I concluded that although Det. Arnold regarded both accused as suspects, an objective review of what was known to the police as of August 26, 2013, when Melissa Merritt was interviewed and the cell phone was seized, and as of August 27, 2013, when Christopher Fattore was interviewed, was inadequate to satisfy the test for determining whether a person is a suspect. I applied the test described by Charron J. in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 35. My conclusion rested primarily on my finding that, as Det. Rice said, there was an insufficient basis upon which to conclude there was a reasonable suspicion that the accused were implicated in the homicide.

[71] Counsel for the applicants submitted that my conclusion that Det. Arnold was incorrect in her assessment that Ms. Merritt was a suspect destroyed the basis for her grounds to seize the cell phone without a warrant, due to the fact that Det. Arnold placed considerable emphasis on her conclusion on the suspect issue during her testimony. I do not accept this submission.

[72] While Det. Arnold’s view of Ms. Merritt as a suspect complicates the understanding of Det. Arnold’s evidence, what has to be decided is whether there were grounds to obtain a warrant under s. 487(1) and whether exigent circumstances rendered it impracticable to do so. If these conditions were satisfied then, irrespective of Det. Arnold’s view on the suspect question, the warrantless seizure of the cell phone was lawful and no violation of s. 8 of the Charter occurred.

[73] I point out that no examination of the cell phone was made until a s. 487(1) search warrant was obtained. However, as that warrant and the ITO to obtain it are also challenged, the fact that a warrant was obtained does not, as it did in R. v. Neal, 2016 ONSC 4943, eliminate the need to consider whether grounds to obtain a warrant existed at the time of the seizure.

Requirement One: Did Det. Arnold have grounds to obtain a search warrant pursuant to s. 487(1)?

[74] This is the first requirement of s. 487.11. I observe that answering this question is not necessarily determinative of the questions I will deal with later concerning the validity of the search warrant the police subsequently obtained and relied upon to conduct an examination of the phone. That search warrant was obtained on August 28, 2013 based on an ITO sworn the same day by Cst. Aaron Meisner. I must answer the question I am currently deciding based on what was known to the police, and by Det. Arnold in particular, as of the afternoon of August 26, 2013. Cst. Meisner had slightly more information available for him when he swore the ITO on August 28. In particular, he had access to some of the results of production orders that had been obtained for records in relation to a number of cellular telephone numbers. Det. Arnold did not have that information.

[75] Detective Arnold’s evidence poses certain challenges. I have found such challenges often arise when police officers are questioned closely about exacting legal requirements as set out in statutory provisions, case law or both. Obviously the police are required to be knowledgeable about and to correctly apply the law. At the same time, being closely questioned in a courtroom with oral responses can lead to a lack of clarity.

[76] Mr. Hechter submits on behalf of the accused that the language used by Det. Arnold in describing the basis for her seizure of the phone is important. I generally agree with that proposition.

[77] Mr. Hechter goes on to point out that Det. Arnold often said things such as that the phone “could” contain certain types of evidence, “could” afford evidence of an offence, that it was “possible” the phone would help reconstruct Caleb Harrison’s whereabouts or that it was “possible” that a search of the phone might eliminate Melissa Merritt or Christopher Fattore as suspects. This submission is repeated in various ways in relation to the numerous things Det. Arnold said she hoped could be gleaned from the cell phone that would assist the police investigation. Those things included call history, text messages, contact lists, photos, videos, downloads, calendars and internet browser history. She also said that some phones are capable of GPS tracking and said that she had found that to be helpful in a previous homicide investigation.

[78] It is a central feature of the applicant’s submissions that such language is inconsistent with the standard to be met for the issuance of a search warrant pursuant to s. 487(1) of the Criminal Code. That standard requires that evidence under oath establishes that there is a credibly based probability that something to be seized will, in the words of s. 487(1)(b), “afford evidence with respect to the commission of an offence”: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, 14 C.C.C. (3d) 97.

[79] Despite the language used by Det. Arnold I have come to the conclusion that when her evidence is reviewed carefully and in its entirety there were reasonable grounds to believe that an examination of the cell phone would “afford evidence with respect to the commission of an offence”. While that is certainly not the case with respect to all of the things Det. Arnold said she believed she had grounds to examine, it is for a few of them. That is all that is required to justify seizure of the phone.

[80] In particular, I am satisfied that Det. Arnold had reasonable grounds that would support obtaining a warrant to assist the police with two important things: assisting in establishing a time line of events surrounding Caleb Harrison’s death and to assist the police in confirming or refuting Melissa Merritt’s and Christopher Fattore’s alibis. I will explain this conclusion in more detail below.

[81] I am of the view that if Det. Arnold had any legitimate grounds to obtain a warrant for the cell phone the fact that the test for the issuance of a warrant could not be met on some of the other bases advanced by Det. Arnold for seizing the cell phone do not matter. It must be remembered that at this point the issue is whether there were grounds to seize the phone, not whether Det. Arnold had the grounds to subject it to a far reaching technical examination. In the circumstances of this case such issues will be determined in the context of the validity of the warrant the police later obtained and relied upon to subject the phone to a complete and thorough technical analysis.

[82] Before dealing specifically with the two bases upon which I am satisfied Det. Arnold had grounds to obtain a warrant, I want to deal further with Mr. Hechter’s submission that Det. Arnold’s use of language should lead me to the conclusion she did not have such grounds in respect of anything she hoped to obtain from the cell phone.

[83] Early in her examination-in-chief by Mr. Taylor Det. Arnold was asked what she believed in respect of the phone providing evidence of the offence. While I do not have a transcript, my notes indicate she said it was “possible” the phone “would” reveal a number of things. She added that it was “possible” the phone could help reconstruct Caleb Harrison’s whereabouts on the night he died.

[84] Det. Arnold then noted that Melissa Merritt told Det. Rice (on August 23, 2013) that she texted Caleb Harrison at 10:30 a.m. on August 23 about her dropping their children off at 5:00 p.m. Det. Arnold also mentioned that on August 23 Melissa Merritt said she emailed Caleb Harrison at 7:30 a.m. that day. According to my notes, Det. Arnold said that an examination of the phone in relation to these matters “would” assist her to narrow the time of the murder. She said it “could” also assist in eliminating the accused as suspects.

[85] In this regard Det. Arnold specifically mentioned that when Ms. Merritt and Mr. Fattore spoke to Det. Rice on August 23 they had given very detailed accounts of all of their activities on August 22 and 23, 2013. Referring to the phone again she said it “could” help confirm or contradict their accounts of their whereabouts.

[86] In summary, with respect to narrowing the time of the murder, she said she believed the phone would assist. That, in my view, is consistent with the correct test for issuance of a warrant.

[87] In my view it was also objectively reasonable to say that, based on the background circumstances relied upon by the police, an examination of the call history, texts and any emails on the phone would help narrow the time of the murder. It was known that Ms. Merritt had a cell phone and that she said she texted and emailed Caleb Harrison around the time of his death. Based on these circumstances the reasonable grounds to believe standard is easily met. It was reasonable to conclude that an examination of the phone would yield some relevant evidence.

[88] Based on a review of Det. Arnold’s evidence as a whole I am also satisfied that sometimes when she used words like “could” or “possible” she was doing so in relation to what examination of the cell phone might ultimately show when the proceeds of that examination were viewed in combination with other evidence. In such circumstances the use of this language is not inconsistent with a correct understanding of what must be shown to obtain a search warrant.

[89] A similar issue arose in R. v. Canadian Broadcasting Corporation (1992), 77 C.C.C. (3d) 341 (Ont. Ct. (Gen. Div.)). Moldaver J., as he then was, was considering whether a warrant to seize photographs and video footage taken by media outlets during the course of a riot was properly issued. The police purpose in obtaining the seized material was to identify rioters who had committed crimes. Based on the ITO, the photos and video footage was not necessarily of specific crimes in progress but of persons who had participated in the disturbance. However, some witnesses to specific crimes thought they might be able to identify the perpetrators in other photos or videos.

[90] Moldaver J. agreed with the applicant’s submission that the ITO failed to set out reasonable grounds to believe that the photos or video would afford evidence of any person actually committing a specific crime. However, he explained that a proper understanding of the requirements of the test to obtain a search warrant as set out in s. 487(1)(b) of the Criminal Code is that the thing or item to be seized “will in some degree afford evidence” of an offence (emphasis added). In support he cited McRuer C.J. in Re Bell Telephone Company of Canada (1947), 89 C.C.C. 196 (Ont. H.C.), at p. 198. Justice Moldaver upheld the issuance of the warrant stating: “[I]t is not necessary that the issuing justice or judge be satisfied that identifications will be made but simply that they might be made.”

[91] The point was that because the evidence to be gleaned had potential value when analysed or used together with other evidence in a case, that is sufficient to say that locating it and seizing it “will afford evidence with respect to the commission of an offence”. Based on my review of the evidence of Det. Arnold as a whole I conclude that she often used words like “could” and “possibly” in a similar sense during her evidence. Such words reflected the potential end value or usefulness of the information that she believed would flow from an examination of the phone. The thing to be seized was the phone. Based on what the police were told or could infer about how it was used to contact Caleb Harrison at a material time, what would be expected to be stored or recorded on the phone would reasonably be expected to provide evidence that, viewed in the context of other evidence, could or might assist in narrowing the time frame of Caleb Harrison’s death. Or it could or might confirm or refute Ms. Merritt’s and Mr. Fattore’s alibis.

[92] At this juncture I would also refer to R. v. CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, [1998] S.C.J. No. 87. In that case the court was called upon to interpret the words “evidence with respect to the commission of an offence” as used in s. 487(1)(b) of the Criminal Code. At para. 15 Major J. wrote on behalf of the court:

On a plain reading, the phrase “evidence with respect to the commission of an offence” is a broad statement, encompassing all materials which might shed light on the circumstances of an event which appears to constitute an offence. The natural and ordinary meaning of this phrase is that anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability falls within the scope of the warrant.

[93] Det. Arnold’s belief that viewing the contents of the cell phone would assist in narrowing the time frame of Caleb Harrison’s death and could assist in evaluating the alibis of the accused certainly fall within the scope of Justice Major’s words. The evidence from Ms. Merritt’s own mouth about the manner and timing of her communication with Caleb Harrison made it highly likely that information gleaned from the phone would assist the investigation. The way in which cell phones are known to record messaging and call histories, when combined with the detailed accounts of their whereabouts previously given to the police by each of the accused, easily meet the standard of reasonable grounds to believe that seizure of the cell phone would lead to information being found on the phone that could or might assist the investigation when viewed in the light of other evidence.

[94] In CanadianOxy Chemicals Ltd. the court emphasized the importance of the “investigative phase” of a prosecution. At para. 20 Major J. said that the point was to “gather all relevant evidence in order to allow a responsible and informed decision to be made as to whether charges should be laid”. At para. 21 he stressed that the authorities are required to inquire into: “What happened? Who did it? Is the conduct criminally culpable behaviour?” At para. 22 he described the purpose of s. 487(1) as “to allow the investigators to unearth and preserve as much relevant evidence as possible”. At para. 21 Major J. pointed out that everyone, including an accused, has an interest in ensuring that all exculpatory as well as inculpatory evidence is located. A broad interpretation of s. 487(1) is required to achieve this objective.

[95] It is also helpful to refer to Baron v. Canada, [1993] 1 S.C.R. 416, [1993] S.C.J. No. 6. In that case the court held, at para. 48, that: “The concern in Hunter was with the probability of finding the things sought, not with the certitude that the things found will be used as evidence”. In that case the court was considering the constitutionality of search provisions found in s. 231.3 of the Income Tax Act, S.C. 1970-71-72, c. 63. As described in the judgment of Sopinka J. on behalf of the court, at para. 50, that section provided for the issuance of a search warrant to seize something that “‘may afford evidence’ when coupled with a requirement of credibility based probability that the things sought are likely to be found”. Sopinka J. held, also at para. 50, that this combination satisfied the constitutional requirement established in Hunter v. Southam. In my respectful view, the applicants’ submissions attacking Det. Arnold’s grounds is in many respects undermined by what was said in Baron v. Canada.

[96] I agree with Crown counsel’s submission that if the police had a belief that the seizure of the cell phone and its subsequent examination would “shed light” in relation to the three questions posed in CanadianOxy Chemicals Ltd., and if there was a reasonable basis for that belief, then it was a good search. Based on a consideration of Det. Arnold’s evidence as a whole I am satisfied that both are present here, at least in relation to narrowing the time frame of the homicide and verifying or refuting the alibis of the accused. Reasonable grounds existed to conclude that an analysis of the cell phone (the search) would shed light on relevant matters and therefore “would afford evidence with respect to the commission of an offence”. The seizure of the phone was for the purpose of obtaining a warrant to examine its contents.

[97] In addition, I observe that Det. Arnold also gave evidence about her general understanding of the requirements of s. 487.11. While at more than one point she spoke of three requirements, my notes reflect that she actually spoke of five requirements. I would summarize those, as she understood them, as follows:

1. the thing to be seized must afford evidence of the offence;

2. a reasonable belief must exist that the evidence is on or in the item to be seized;

3. the situation must be time sensitive in the sense that if the police do not seize the item the evidence could be lost;

4. it must be difficult to obtain a warrant at the time due to the surrounding circumstances; and

5. that the item to be seized is in “plain view”.

[98] While this explanation is not correct in every way it reflects an understanding of what must be shown to establish reasonable grounds to obtain a warrant as well as of the need for exigent circumstances. Det. Arnold’s reference to “plain view” seems to reflect an understanding that the police cannot, by their conduct, create exigent circumstances that they can then rely upon to seize evidence: see, R. v. Phoummasak, 2016 ONCA 46.

[99] The first requirement for the seizure of the cell phone, grounds to obtain a s. 487 warrant, is established.

Requirement Two: Were there exigent circumstances making it impracticable to obtain a search warrant?

[100] In Phoummasak, at para. 12, Doherty J.A. described the “urgency requirement” for a valid seizure pursuant to exigent circumstances as the police believing, based on reasonable grounds, that there is imminent danger that evidence will be destroyed or lost if the police do not seize or secure the place where the evidence is located.

[101] In R. v. Grant, [1993] 3 S.C.R. 223, [1993] S.C.J. No. 98, at para. 32, Sopinka J. said: “Exigent circumstances will generally be held to exist if there is imminent danger of the loss, removal, destruction or disappearance of the evidence if the search is delayed.”

[102] In Grant, at para. 31, Sopinka J. rejected the creation of a blanket exception for evidence in motor vehicles where there was a danger the evidence could be quickly moved away. He held that in such circumstances a determination about whether exigent circumstances existed would have to be made on a case by case basis. This is relevant in the present case because one of the concerns Det. Arnold harboured was that once Ms. Merritt left the interview and headed to her vehicle, the police might not be able to locate the cell phone again.

[103] Det. Arnold testified that she had a number of concerns relating to the loss or destruction of the evidence. In examination-in-chief she was asked primarily about the potential for evidence on the phone to be deleted, as that was the focus of Crown counsel’s approach. However, in cross-examination it became apparent that another primary concern was that once the cell phone was taken from the interview room she would not know where it was in order to seize it pursuant to a warrant. In my view these concerns reinforce each other.

[104] Det. Arnold testified that because she viewed Ms. Merritt and Mr. Fattore as suspects she was concerned that they might delete or destroy evidence on the phone. She thought that there may be incriminating evidence on the phone. However, she readily agreed that she had no reason to think that there was a downloaded PDF file about a mortise lock on the phone.

[105] In my view, the fact that Det. Arnold regarded Ms. Merritt and Mr. Fattore as suspects is of little value in establishing the exigency requirement beyond serving as a basis to establish that Det. Arnold had in mind all of the many circumstances she testified on the statement voir dire she considered in reaching her conclusion that the accused were suspects. In other words, it assists in understanding what she took into account. The question that remains is whether objectively reasonable grounds existed to establish exigent circumstances.

[106] I have found that Melissa Merritt did not meet the legal definition of a suspect. However, it is apparent from the evidence on the statement voir dire, that Melissa Merritt and Christopher Fattore were generally aware that Caleb Harrison’s friends thought they were involved. Both Ms. Merritt and Mr. Fattore had been reluctant to attend and provide statements to the police. They were receiving advice from Melissa Merritt’s father, a retired Toronto police officer with experience on the homicide squad. Det. Arnold was the lead investigator and all of the information that was being uncovered was channelled through her. She was, therefore, aware of all aspects of the investigation.

[107] Det. Arnold said that she had learned from officers conducting surveillance on Ms. Merritt and Mr. Fattore that their driving style had changed. It appeared they had become surveillance conscious. She received that information on August 24, 2013, two days before the seizure of the phone. She testified that this information was only a small part of her overall concern for the loss or disappearance of the evidence. She also said that her concerns increased because she knew that Ms. Merritt would be learning things about the investigation throughout the course of her interview by Det. Rice. This raised an increased possibility that Ms. Merritt or Mr. Fattore would delete things on the phone or get rid of the phone following the interview.

[108] Det. Arnold said that she had been interested in cell phones from the beginning of the investigation. It must be remembered that was just three days before. Prior to August 26 she had tasked Cst. Meisner with obtaining production orders for records for the phone numbers the police knew about. She explained how it often took a long time to get the results of a production order and explained that there was information on an actual phone that would not be available from a production order for the records.

[109] Det. Arnold said that prior to August 26, 2013 she had not turned her mind to getting a warrant to seize the phone because she did not know where it was located. A great deal of information was coming in. She was extremely busy due to the fast pace during the early days of the investigation. The phone was small and portable. Different people could possess or use the phone. Ms. Merritt told Det. Rice that the phone was registered to Mr. Fattore but it was used as the family phone.

[110] Det. Arnold did not become aware of the presence of the cell phone until close to the end of Ms. Merritt’s interview. By then it was too late to obtain a warrant. Det. Arnold emphasized in cross-examination that she was concerned that if Ms. Merritt left the interview with the phone she may never be able to find it again. That concern was quite apart from her concern that items on the phone could be deleted.

[111] I conclude that when all of the circumstances are considered there were exigent circumstances justifying the warrantless seizure of the phone. I regard the evidence of concern about deletion that existed prior to the interview to be somewhat weak and I would not base a finding of exigent circumstances on that consideration alone. The concern that the phone would leave with Ms. Merritt and may not be seen again is of greater significance. Both concerns were elevated by the interview because it was likely apparent to Ms. Merritt based on questions about the phone asked by Det. Rice that the police had considerable interest in the phone. That, in combination with her knowledge that others were probably pointing the finger at her, her reluctance to attend an interview and the surveillance conscious driving all heightened legitimate concerns that the police would lose the evidence if they did not act to seize the phone.

[112] Somewhat similar concerns arose in the cases of R. v. Sam, [2003] O.J. No. 819 (S.C.J.) and R. v. Lucas, [2009] O.J. No. 3417 (S.C.J.).

[113] In Sam the accused was arrested for possession of burglary tools. During the booking process following his arrest his clothing was seized and searched in connection with that offence. However, the police suspected Mr. Sam had been involved in an attempted murder by means of a firearm committed near the location where he was arrested. The police had no grounds to arrest Mr. Sam for the attempted murder. They did not want to return his clothing to him because they believed they may find trace evidence on his clothing linking him to the shooting. Consequently, they seized his clothing without a warrant and submitted it for forensic testing. Gunshot residue and blood consistent with the shooting victim was located on the clothing.

[114] Molloy J. concluded that had a warrant been applied for it likely would have been granted. She found that the police had an objectively reasonable belief that evidence could be lost if they returned the clothing. She noted that the invasion of privacy involved was minimal. Justice Molloy concluded that exigent circumstances existed. While there is a difference between trace evidence and data recorded on a cell phone I note that both are vulnerable and easily lost or destroyed.

[115] In Lucas, Nordheimer J. was dealing with a situation in which the police had a man named Chau under surveillance. They believed he had participated in a drug transaction and that a computer bag he was carrying contained money from the drug transaction. Mr. Chau placed the computer bag in his car. He left the bag in his car while he entered a restaurant. The police were concerned that if they did not seize the computer bag at that time Mr. Chau might drive away with it and they might lose him as he drove through Toronto.

[116] At para. 16 Justice Nordheimer concluded that the danger that the computer bag might be driven away and that surveillance officers might lose Mr. Chau before they could obtain a warrant, constituted exigent circumstances. He noted that there was a real prospect the police might lose sight of the vehicle and that Mr. Chau could easily dispose of, conceal or transfer the bag before the police were able to locate him.

[117] It seems to me that the concerns raised in Sam, but particularly in Lucas, are present in the situation I am dealing with. The cell phone was small and portable, Det. Rice asked several questions about the phone during the interview, and there was evidence Ms. Merritt and Mr. Fattore were surveillance conscious and somewhat mistrustful of the police. There was a real danger that if she left the interview with the cell phone the police would not be able to locate it again.

[118] I also observe, as did Molloy J. in Sam, that the invasion of privacy associated with the seizure was minimal. The police seized the phone to preserve it. They had no intention of examining the phone until they obtained a warrant.

[119] On behalf of the accused, Mr. Hechter submits that the police obtain warrants for small portable things like drugs and guns all the time. While that is true this is a different situation. Here something of real evidential value was present to be seen in circumstances where it was about to be whisked away. In addition there was a reasonable basis for a belief that Ms. Merritt or Mr. Fattore might now destroy it or hide it due to the evident interest of the police in this item.

[120] Ironically, obtaining a warrant to search the accuseds’ home and vehicle for the cell phone would result in a greater invasion of privacy than was occasioned by Det. Rice seizing the phone during the interview.

[121] In Lucas Nordheimer J. ultimately found a s. 8 violation related to the manner in which the police executed their search pursuant to exigent circumstances. In that case the police broke the window to Mr. Chau’s vehicle to make it appear as though the computer bag was stolen. That was found to be unreasonable. Justice Nordheimer did indicate, however, that the police could have approached Mr. Chau in the restaurant and advised him of their basis for seizing the computer bag. If he did not assist them by opening his car the police would then have been entitled to use force to retrieve the computer bag.

[122] In the present case Det. Rice, in essence, did what Nordheimer J. said the police should have done in Lucas. He explained that he was seizing the phone on the basis of exigent circumstances. Ms. Merritt then handed it over to him.

[123] The Lucas case was subsequently reviewed by the Court of Appeal: R. v. Lucas, 2014 ONCA 561. The appellants did not contest Justice Nordheimer’s finding of exigent circumstances. However, arguments were advanced on appeal concerning the application of s. 24(2) of the Charter in relation to the s. 8 breach associated with the breaking of the window of Mr. Chau’s car in order to execute the search. The appellants submitted that Nordheimer J. erred in not finding that s. 8 violation to be more serious than he did.

[124] In rejecting that submission the Court of Appeal held, at para. 247, that: “Contrary to the appellants’ submission it was reasonable for the trial judge to find that the police acted in good faith believing that they had to move quickly to preserve the evidence and not risk the entire investigation. In other words they had no other good option” (emphasis added).

[125] In my view the police had no other good option in the present case. While they could wait and try to obtain a warrant, by then the phone itself or what was contained on it may have been lost or destroyed. The phone was small, portable, used by more than one person and it might prove difficult to pinpoint its presence at a location to be searched pursuant to a warrant. The invasion of privacy occasioned by its seizure at the interview was far less than would result from a warranted search of a private residence, or even a vehicle. The police intended to obtain a warrant to examine the contents of the phone.

Conclusion on this Issue

[126] I find that the police had grounds to obtain a warrant pursuant to s. 487(1) of the Criminal Code and that exigent circumstances existed. Accordingly, the seizure of the cell phone was lawful pursuant to s. 487.11 of the Criminal Code. Section 8 of the Charter was not violated by the warrantless seizure of the cell phone.

Standing and Reasonable Expectation of Privacy

[127] The applicants mount a subfacial as well as a facial attack on the warrant issued on August 28, 2013 which the police relied upon to support their technological examination of the cell phone seized from Ms. Merritt on August 26, 2013. As part of their subfacial attack on the ITO supporting the warrant, ITO #6, the applicants seek excision of information from ITO #6 which was the product of a number of other searches. They challenge those searches on s. 8 grounds but solely for the purpose of excision from ITO #6.

[128] The Crown concedes that the accused have standing to seek excision of information derived from the production orders for records of cell phones registered to them. However, it is the Crown’s position that the accused have no standing to seek excision for alleged s. 8 violations in relation to searches in respect of which they have no reasonable expectation of privacy

[129] I will deal with each contested situation after outlining the governing legal principles.

Applicable Legal Principles

[130] Two foundational cases on standing and reasonable expectation of privacy are R. v. Plant, [1993] 3 S.C.R. 281, [1993] S.C.J. No. 97, and R. v. Edwards, [1996] 1 S.C.R. 128, [1996] S.C.J. No. 11. I will refer to Plant later.

[131] In Edwards it was held to be fundamental that when s. 8 is invoked the privacy right infringed must generally be that of the person who makes the challenge (para. 34). The decision as to whether an accused had a reasonable expectation of privacy must be made without reference to the conduct of the police during the impugned search (para. 33). The accused must establish that it is his or her personal right to privacy that has been violated (para. 45-3). Whether an accused has a reasonable expectation of privacy is to be determined by considering the “totality of the circumstances” (para. 45-5).

[132] In Edwards the court set out a non-restrictive list of factors to be considered which includes whether the accused had a subjective expectation of privacy and whether any such expectation was objectively reasonable (para 45-6). The onus is upon the accused to establish a reasonable expectation of privacy (para. 45-7).

[133] The basic principles established in Edwards have been clarified, explained and applied in different contexts in a number of subsequent decisions of the Supreme Court of Canada. In R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432 the difference between personal privacy, territorial privacy and informational privacy was discussed. The “totality of the circumstances” test was affirmed and another list of factors was provided (paras. 31-32). The court observed that not all information an individual wants to keep confidential necessarily enjoys s. 8 protection (para. 26).

[134] In R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579 the court indicated at para. 14: “Privacy analysis is laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy.” The court again emphasized the importance of the totality of the circumstances and of both a subjective and objective reasonable expectation of privacy.

[135] In R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at paras. 17-18, the court held that in assessing whether someone has a reasonable expectation of privacy the court considers and weighs a large number of interrelated factors concerning both the nature of the privacy interest implicated by the state action and those more closely associated with both a subjective and objective reasonable expectation of privacy. At para. 18 the court held that these factors can be grouped under four headings: “(1) The subject matter of the alleged search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy in the subject matter; and (4) whether their subjective expectation of privacy was subjectively reasonable” (citations omitted).

[136] Although an older decision than the other authorities I have cited, Plant is important in the context of the present case due to the court’s focus on informational privacy, the privacy interest primarily at stake here. At para. 19 Sopinka J., for the majority, suggested that in determining whether someone has a reasonable expectation of privacy in information consideration of the following factors could be important: (1) the nature of the information itself; (2) the nature of the relationship between the party releasing the information and the party claiming a privacy interest in it; (3) the place where the information was obtained; (4) the manner in which the information was obtained; and (5) the seriousness of the crime being investigated. Sopinka J. held that the purpose of such considerations is to allow “for a balancing of the societal interests in protecting individual dignity and autonomy with effective law enforcement.”

[137] At para. 20 of Plant Sopinka J. held:

In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state.

[138] The fifth factor in Plant was modified in Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841, [1990] S.C.J. No. 42, at para. 21. There Lamer C.J. explained that “the seriousness of the crime being investigated, as between different Criminal Code offences, does not itself effect the expectation of privacy of the person being investigated.” He replaced the fifth factor with a consideration of whether the circumstances in which the s. 8 claim arose was criminal or regulatory in nature.

[139] In Schreiber the court also made it clear, at para. 22, that a conclusion that the information at the centre of a privacy dispute falls within the scope of a biographical core of personal information is not determinative of whether a reasonable expectation of privacy exists. Other factors are of equal importance. In Schreiber the court concluded that although financial records fell within a biographical core of personal information a consideration of the location in which the records were found and the method by which they were obtained led to a conclusion that the appellant had no reasonable expectation of privacy in the records.

[140] In R. v. Marakah, 2016 ONCA 542, at para. 56, the majority held that “the ‘totality of the circumstances’ approach set out in Edwards and restated in several Supreme Court of Canada cases fully engages normative considerations and remains the proper framework within which to address informational privacy issues” when determining whether a reasonable expectation of privacy exists.

[141] I will refer to additional cases of more particular application when dealing with some of the situations raised by counsel.

The Searches Related to Excision Where Standing is in Issue

[142] I will deal with these in chronological order.

Results from the Production Order for Caleb Harrison’s Cell Phone

[143] Caleb Harrison’s body was found at about 12:00 noon on August 23, 2013. One of the first things the police did was to apply for a production order for the records relating to Caleb Harrison’s cell phone. Results were obtained on August 24, 2013. They included cell tower usage information in respect of a number of calls made to or from that cell phone on the evening of August 22, 2013. This information is included in ITO #6, at para. 30, and is relied upon at p. 37 of that ITO to help establish grounds to believe that an examination of the cell phone seized from Ms. Merritt will afford evidence.

[144] The production order also sought the content of any text messages, if available. I have not been provided with evidence that any such content was received. The content of a text message sent by Ms. Merritt to Caleb Harrison is included at para. 50(d) of ITO #6, but it is sourced to the results of the production order for the “1614” phone number of Ms. Merritt and Mr. Fattore.

[145] The accused submit that a s. 8 violation occurred in obtaining the production order for Caleb Harrison’s cell phone and they seek excision of the resulting information from ITO #6. Their submission that they had a reasonable expectation of privacy in relation to Caleb Harrison’s cell phone records rests on para. 6 of the Agreed Statement of Fact. There it is agreed that on Saturday, August 24, 2013 Cst. Aaron Meisner attended at the courthouse in Brampton to drop off the application and ITO for the production order. I point out that aside from the agreed facts I have a copy of the ITO which appears to have been duly sworn by Cst. Meisner before a commissioner of oaths whose stamp is affixed to the document. That stamp indicates that the ITO was sworn before a commissioner for the Peel Regional Police.

[146] The agreed facts are that Justice of the Peace Florence refused to look at the application and advised Cst. Meisner to “send it to telewarrant”. Unfortunately, it appears that Justice of the Peace Florence did not understand that the telewarrant provisions of the Criminal Code do not mention production orders.

[147] It is also agreed that Cst. Meisner then consulted with his superiors. This led to Det. Sgt. Randy Cowan contacting David Maylor, the acting Crown Attorney for the Region of Peel. Possibly as a result of some intervention that is not set out in the agreed facts, Justice of the Peace Walker then called Det. Sgt. Cowan and said that she would receive the application by way of fax.

[148] Eventually Det. Meisner faxed the application to Justice of the Peace Walker. It is agreed that the fax was not sent to the telewarrant fax number. Justice of the Peace Walker faxed the signed production order back to Cst. Meisner. The fax indicated that the original production order was available for pickup.

[149] On behalf of the accused, Mr. Hechter submits that there was a s. 8 violation because the production order was issued without jurisdiction as it was handled like a telewarrant.

[150] Crown counsel takes the position that the accused have no standing to raise that issue as they have no reasonable expectation of privacy in the records of Caleb Harrison’s cell phone.

[151] In response, Mr. Hechter first submits that Ms. Merritt has a reasonable expectation of privacy in the records for Caleb Harrison’s cell phone because it is an agreed fact that Melissa Merritt corresponded electronically with Caleb Harrison by way of text message and email about their two children. Alternatively, Mr. Hechter submits that even if Ms. Merritt has no reasonable expectation of privacy in the records she has standing to challenge the production order on jurisdictional grounds based on R. v. Chang, [2003] O.J. No. 1076, 173 C.C.C. (3d) 397 (C.A.), at para. 40. I will deal with each of these submissions in turn.

[152] Applying the totality of the circumstances approach outlined in the governing authorities, I am not persuaded that either accused had a reasonable expectation of privacy in the records of Caleb Harrison’s cell phone.

[153] Applying the categories approach mentioned in Spencer and considering the factors outlined in Plant, I note that the subject matter of the alleged search was records for a third party’s phone.

[154] As to any interest either accused had in that subject matter, there were no relationships, contractual or otherwise, between the service provider and either of the accused. There is no evidence that either accused used Caleb Harrison’s phone or had access to it. They had no control over it. It would appear that the privacy interest in the records for that phone was exclusively Caleb Harrison’s. I see no basis for saying that either accused had an interest in the subject matter of the records. I also have no evidence that the production order unearthed the content of any texts sent by either accused.

[155] I would inject here that even if the accused had some interest in the subject matter of the search, based on Marakah and R. v. Jones, 2016 ONCA 543, it is difficult to see how a full analysis of all the circumstances pursuant to the other authorities I have referred to, would lead to a different result. I say that in relation to the application of Marakah and Jones based on the nature of the ongoing family law proceedings which I refer to below.

[156] The third category from Spencer is the accused’s subjective expectation of privacy. I point out that neither accused testified and I have no direct evidence of a subjective expectation of privacy. While in many situations a subjective expectation of privacy can be inferred from the surrounding circumstances I am unable to draw such an inference in this situation. I observe that Melissa Merritt and Caleb Harrison had been involved in a long and bitter dispute over custody and access of their two children. That litigation was ongoing. While I have no evidence as to whether text messages or emails had been tendered as evidence in the family law proceedings, that often occurs in such litigation and it would have been obvious to both accused that it could occur here.

[157] Turning to the fourth category of factors, I conclude that even if there was some subjective expectation of privacy arising from the electronic communication between Ms. Merritt and the deceased, the bitter nature of the family law proceedings and antagonistic nature of the relationship between the parties undermines there being any reasonably objective expectation of privacy. No objective observer would expect either of the parties to such litigation to keep texts or emails about the children private.

[158] The first argument fails.

The Defence Submission Based on Chang

[159] Mr. Hechter and Ms. McCabe-Lokos submit that in some circumstances an accused may have limited standing to assert a s. 8 violation absent a reasonable expectation of privacy in the subject matter of a search. While I was referred to a number of cases, the focus of all submissions was on the meaning and effect of the decision of the Ontario Court of Appeal in Chang. Chang has been considered in a number of cases in which excision is sought.

[160] Some courts have cited Chang for the proposition that an accused without a reasonable expectation of privacy may not seek excision on the basis of constitutional violations of third parties. Other courts have held that it imposes no such general restriction and is in some circumstances permissive. An example of the former is R. v. Serré, 2011 ONSC 3749. An example of the latter is R. v. Guindan, 2015 ONSC 4317. In Serré and Guindan the learned jurists presiding referred to, analyzed and distinguished many of the same cases I have been referred to.

[161] The main thrust of the accuseds’ submissions is that this case is similar to Chang in the sense that there is an issue as to whether the production order for the records related to Caleb Harrison’s phone was issued within jurisdiction. They submit that Chang permits them to challenge the production order for the records of Caleb Harrison’s cell phone on the basis that the production order was issued without jurisdiction because it was treated like a telewarrant. I am unable to accept this submission.

[162] In Chang the court was dealing with an appeal by two appellants from their convictions on two counts of conspiracy. The case at trial depended upon the intercepted private communications of the appellants. Those communications were intercepted pursuant to two judicial authorizations issued in Ontario. However, the Ontario authorizations were dependent for their issuance upon intercepted private communications of persons other than the appellants pursuant to judicial authorizations issued in Quebec in connection with a different investigation.

[163] In Chang the appellants alleged that as the Ontario authorizations depended on the Quebec authorizations they had standing to challenge the Quebec authorizations because, “but for” the Quebec authorizations, the Ontario authorizations could not issue. They submitted at trial and on appeal that there was accordingly a principled basis on which to take the analysis back. In response to the concern raised by Molloy J. at trial that on this basis an accused could reach backwards in the process even further to the basis for the Quebec authorizations, the appellants submitted they should only be permitted to go one level back.

[164] At trial Molloy J. held that as the accused before her had not had their private communications intercepted pursuant to the Quebec authorizations they did not have full standing to go behind those authorizations: R. v. Chang, [1998] O.J. No. 1789 (S.C.J.). However, she did conclude that it was important that she be satisfied that the Quebec authorizations were granted by a judge who had jurisdiction to issue the authorizations and that the steps taken to implement them were lawful. To that extent she concluded that the accused before her had standing to challenge the Quebec authorizations.

[165] On appeal it was submitted that Molloy J. erred at trial in refusing to permit the appellants to embark on a review of whether there was any basis for the issuance of the Quebec authorizations. At para. 41 of its judgment the Court of Appeal found that Molloy J. took the correct approach. The accused submit that Chang, therefore, is authority for the proposition that they have standing to challenge the production order for the records for Caleb Harrison’s phone on jurisdictional grounds.

[166] I am not persuaded that the Chang case is of assistance to the accused in the present case. The context of intercepted private communications in Chang was very different than the context I am dealing with. The unauthorized interception of private communications is a crime. At trial Justice Molloy was faced with a situation in which, if the Quebec interceptions had not been authorized by a judge with jurisdiction to do so, a crime would have been committed and the evidence used to obtain the Ontario authorizations would, therefore, have been the product of criminal activity. That Molloy J. was concerned about this is evident at paras. 30-31 of her judgment.

[167] That context explains why there was a limited degree of standing extended to the appellants in that case to challenge the jurisdiction of the Quebec court and to ensure that the orders of the Quebec court which rendered otherwise unlawful conduct lawful were properly implemented. In my respectful view, both the trial and Court of Appeal judgments in Chang are distinguishable on this basis.

[168] Before finding that Molloy J. had taken the correct approach in the circumstances she was dealing with the Court of Appeal said, at para. 35:

The appellants rely upon R. v. Plant, [1993] 3 S.C.R. 281; R. v. Wiley, [1993] 3 S.C.R. 263 and R. v. Grant, [1993] 3 S.C.R. 223. The aforementioned trilogy of cases asserts that information obtained as a result of unlawful activity by the police should be excised by a reviewing court in determining the validity of a search warrant. However, each of those cases involved the breach of the applicant’s own Charter rights and the court excised the information on that basis. The trilogy is distinguishable from the case at bar in that the alleged unlawful evidence obtained as a result of the Quebec Immigration Authorization was not obtained as a result of a violation of the rights of either of the appellants. Indeed, the appellants do not cite any cases in which a reviewing court excised information from an affidavit in support of a wiretap authorization where the impugned information was obtained as a result of the breach of a third party’s rights.

In my respectful view this is the portion of Chang that governs in the case I am dealing with. Nothing in the balance of the Court of Appeal’s judgment modifies or detracts from what was put forward at para. 35 as a generally correct statement of the law. Therefore, I am of the view that it was the specific context of the situation which governed the other conclusions reached in that case.

[169] The context of the case before me is very different. There is no basis to think that if the production order for the records for Caleb Harrison’s phone was not valid a crime was committed by the investigators collecting the evidence, and no such argument was advanced on behalf of the accused.

[170] I also make the following observations. The production order that was granted in this case was issued by Justice of the Peace Walker. No one has suggested that as a justice of the peace she did not have jurisdiction to issue production orders. There was also a sworn ITO. I have a copy of it in the materials. It indicates on its face that it was sworn before a commissioner associated with the Peel Regional Police. The agreed facts indicate that Cst. Meisner originally went to the courthouse to drop the application off at 12:24 p.m. I infer that by then he had sworn the ITO before the commissioner. It is apparent, therefore, that there was an original sworn ITO in existence before the production order was issued. A copy of that was faxed to Justice of the Peace Walker. The order was signed, a copy was faxed back and the original signed order was made available for pick-up. It is an agreed fact that the telewarrant procedure was not utilized.

[171] In these circumstances I am far from persuaded that there was any lack of jurisdiction of the kind contemplated in Chang. At most it seems to me that there may have been some procedural irregularity. If the accused had standing based on the existence of a reasonable expectation of privacy that irregularity might constitute a s. 8 violation. I have found they do not have standing on that basis. In the alternative they assert that they have standing on the basis that there was a lack of jurisdiction of the kind contemplated in Chang. Based on the evidence I am not persuaded that they do.

[172] For all of these reasons I find the accused have no standing to challenge the production order for the cell phone records of Caleb Harrison’s phone obtained by the police on August 24, 2013.

The Search of Caleb Harrison’s Cell Phone and E-Mail Account on August 25, 2013

[173] As mentioned, Caleb Harrison was found dead in his bed at around 12:00 noon on August 23, 2013. While the police learned the number of his cell phone from his girlfriend and other sources they initially could not locate the actual phone.

[174] It is an agreed fact that on August 25, 2013 Det. Rice, with the help of Cst. Jason Walker, used Caleb Harrison’s e-mail account, which had been left open at Caleb’s workplace, to log into Caleb Harrison’s iCloud account. That led to the police being able to activate the “find my phone” application. Caleb Harrison’s cell phone was then located on the floor of his bedroom under a shelf with other items resting on top of it.

[175] It is also agreed that on August 25, 2013 the cell phone was turned over to Cst. Walker who quickly reviewed some of its contents. Cst. Walker noted that there were three entries in the contact list programming two different numbers for Mr. Fattore into that cell phone. There were also two entries in the contact list programming two numbers into the cell phone for Ms. Merritt. One of the numbers for Ms. Merritt and for Mr. Fattore was the same number.

[176] The finding of Caleb Harrison’s cell phone is referred to at para. 43 of ITO #6. That paragraph mentions that the location in which the phone was found is some indication of a struggle. There is brief mention of the fact that Ms. Merritt was a contact in Caleb Harrison’s phone at p. 37 of ITO #6 under “Grounds to believe items to be seized will afford evidence.”

[177] On behalf of the accused, Mr. Hechter submits that the accused have a reasonable expectation of privacy in Caleb Harrison’s e-mail account and in the information that was found stored in the phone. This submission is again based on the fact that Ms. Merritt and Mr. Harrison communicated by text and e-mail about their children. In addition, Mr. Hechter submits that Cst. Walker’s notes suggest that it was Ms. Merritt and Mr. Fattore who were the targets of this part of the police investigation. He submits that as Ms. Merritt and Mr. Fattore were the specific focus of the search their reasonable expectation of privacy is evident.

[178] I am unable to accept these submissions. Based on a consideration of all of the circumstances I am far from persuaded that the accused have any reasonable expectation of privacy in these items.

[179] Many of the same comments I made in relation to the production order for records for Caleb Harrison’s cell phone apply here. Neither accused had any ownership or control of these items. There is no evidence they used the cell phone. While there was texting and communication back and forth in relation to the children, that was all in the context of a long and bitter court dispute regarding custody and access. In these circumstances there is no basis to infer that either accused had a subjective expectation of privacy. Neither testified on this issue. In the context of the ongoing family law proceedings there is certainly no reasonable objective expectation of privacy.

[180] Based on a consideration of all of the evidence before me I also do not accept that the accused were targeted by these searches. The police were trying to reconstruct Caleb Harrison’s whereabouts and to narrow down the time of his death. There were many different ways in which his cell phone and information on it would probably assist the police in that regard. Finding the physical phone was also important for many reasons. The e-mail account was used to access the iCloud for the purpose of finding the phone. The location where the phone was found on the floor of the bedroom, where it would not normally be, with items on top of it suggesting it did not fall off a shelf, is some evidence there was likely a struggle.

[181] As for Cst. Walker’s notes, they are hearsay. Cst. Walker did not testify. In any event, his notes do not say that the accused were targeted. Counsel asks me to infer that they were targets from the fact that Cst. Walker jotted down mostly contact information for the accused.

[182] I am of the view that many hearsay dangers are present in using Cst. Walker’s notes as counsel suggests. I am not prepared to draw the inference counsel asks me to draw from the fact that the notes appear as they do. I also reiterate that in Edwards, Cory J. held, at para. 33, that whether an accused had a reasonable expectation of privacy is to be decided without reference to the conduct of the police during the impugned search.

[183] Moreover, in R. v. Pugliese (1992), 8 O.R. (3d) 259 (C.A.), at pp. 266-67, the court rejected that being the target of a police investigation gives someone standing to challenge a search warrant. The same reasoning would apply to a production order.

[184] For all of these reasons I find that the accused have failed to demonstrate that either of them had a reasonable expectation of privacy in Caleb Harrison’s e-mail account or in his cell phone. The accused, therefore, have no standing to challenge those searches on the basis of s. 8 of the Charter.

The Subscriber Inquiries Made of Public Mobile and Wind Mobile by Cst. Meisner

[185] While not in the Agreed Statement of Facts, it is common ground that Cst. Meisner contacted the service providers for telephone numbers associated with the accused. ITO #4 relates to a production order for records for 647-768-1614. This was a number the police had to contact the accused. It was later determined to be the number for the phone seized from Ms. Merritt on August 26, 2013. At para. 41 of ITO #4 Cst. Meisner swears that he received an e-mail from Paul Long at Public Mobile confirming that the number was registered to Mr. Fattore. The e-mail said that if the phone was used during the period in question that information would be stored in the database of Public Mobile.

[186] ITO #5 relates to a production order that was obtained for records for 647-786-6260. At p. 30 of that ITO Cst. Meisner swore that on August 26, 2013 he spoke to Sal Iaccio from Corporate Security for Wind Mobile. Mr. Iaccio verified that the number was registered to Melissa Merritt and confirmed that there would be records available for the period from August 1 to August 26, 2013.

[187] Of significance, it is apparent that no tower information, message content, or more private types of information were sought or obtained during these subscriber inquiries.

[188] This is not a situation like Spencer where the police obtained subscriber information associated with a particular Internet Protocol (IP) address without a warrant. Once the police had that information they were effectively able to link persons at a specific location with their internet usage. The Supreme Court of Canada explained that such a loss of anonymity constituted a significant invasion of a reasonable expectation of privacy.

[189] However, it has been decided in a number of cases subsequent to Spencer that there is no reasonable expectation of privacy in the type of basic telephone subscriber information which the police obtained in this case without a warrant: Transmission Data Warrant (Re), [2015] O.J. No. 2471 (S.C.J.), at paras. 9-13; R. v. Latiff, [2015] O.J. No. 1153 (S.C.J.), at paras. 7 to 15; R. v. Khan, 2014 ONSC 5664, [2014] O.J. No. 6488 (S.C.J.) at paras. 21 to 27. These cases stand for the proposition that names, addresses and telephone numbers do not reveal intimate details about a person, their lifestyle choices or interests. Such information is not part of the “biographical core of personal information” which it was held in Plant was a characteristic of personal information that falls within the protected sphere of s. 8 of the Charter. Rather, this is the type of information that is readily available in phonebooks and publicly accessible databases.

[190] Mr. Hechter seeks to distinguish the cases referred to on the basis that the police did not go to a telephone directory but to the accused’s cellular telephone service provider. Given the facts of those cases I do not see how they are distinguishable on this basis.

[191] In this instance I find the factors outlined in Plant to be germane. The information was not of a highly personal nature. It is not the kind of information that is ordinarily considered to be highly private. It was being obtained by law enforcement pursuant to a limited request in connection with the investigation of a serious matter. Pursuant to para. 19 of Plant, the balancing of personal and law enforcement interests is affected by these circumstances. The relationship between the accused and the service provider was not such that this type of basic identifying information would be expected to be withheld from the police investigating a serious crime. No relationship of trust was violated in the circumstances. Clearly the service providers potentially had more personal and private information about the accused and their activities. None of that was sought or provided pursuant to the request for subscriber information made by the police in their case.

[192] I conclude the accused had no reasonable expectation of privacy in the subscriber information in question.

Recordings of Police Conversations with the Accused on August 24 and 25, 2013

[193] When Det. Rice spoke with Ms. Merritt and Mr. Fattore individually in a police vehicle on August 23, 2015, he advised each of them that their conversation was being recorded by means of a small digital recorder that was hanging around his neck.

[194] When Det. Rice had a conversation with Ms. Merritt and Mr. Fattore together on August 24, 2013 and a conversation with Ms. Merritt alone on August 25, 2013 he recorded the conversation in the same manner but did not advise them that he was doing so.

[195] The accused submit that s. 8 of the Charter was violated by the recording which took place on August 24 and 25, 2013 because the police did not advise the accused they were being recorded and did not have a judicial authorization to intercept the communications.

[196] It is the Crown’s position that the accused had no reasonable expectation of privacy when they were speaking to the police about a matter they knew was under active investigation.

[197] It has become unnecessary to decide this issue at this time as the Crown is prepared to have any reference to the conversations on August 24 and 25, 2013 edited out of ITO #6 for the purpose of considering whether the warrant issued on August 28, 2013, which is relied upon for the technological examination of the cell phone seized from Ms. Merritt on August 26, 2013, could have been issued.

[198] Whether the conversation between the police and the accused on August 24 and 25, 2013 were private conversations will likely have to be resolved later in these proceedings.

The Validity of ITO #6 and the Warrant to Search the Phone Seized from Melissa Merritt

[199] The accused attack ITO #6 on both facial and subfacial grounds. They attack the validity of the search warrant itself on facial grounds.

[200] ITO #6 was sworn by Cst. Meisner on August 28, 2013. By then the police had some results from production orders for records for cell phones that Det. Arnold did not have on August 26 when she instructed Det. Rice to seize the phone without a warrant. The ITO reflects this additional information. While the thrust of the ITO is that analysis of the cell phone will assist the police in determining the whereabouts of Caleb Harrison and in narrowing the time frame of Caleb Harrison’s death, it also put forward that an analysis of the phone would assist in identifying a suspect or suspects. I will make further reference to the grounds in ITO #6 when I deal with its facial validity.

[201] As I will explain, I conclude there are serious facial validity problems with the warrant. I conclude that it is invalid because it did not authorize the technical search or examination of the phone that was undertaken.

[202] I will also explain why I reach a different conclusion with respect to the facial validity of ITO #6 itself. In my view an examination of the ITO as a whole supports the conclusion that a search warrant for a full technological examination of the phone to look for cell phone activity, contact details, text messages and pictures could have been issued on the face of the ITO. I will also explain why any alterations of the ITO required by subfacial analysis do not change my conclusion that a warrant could have issued on the basis of ITO #6 as modified on the review.

[203] By agreement of counsel the application of s. 24(2) of the Charter is being deferred until the other s. 8 Charter applications still to come have been heard.

The Review Process Generally

[204] In most of the reported post-Charter cases the focus has been on the validity of the ITO rather than the warrant that results. As will become apparent, while the validity of the warrant and the ITO may be separate matters, it is difficult to discuss the validity of the warrant without referring to the ITO on which the warrant is based. At this point I will outline the general principles that have been developed in the case law dealing with the constitutional validity of ITOs.

[205] In R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, Watt J.A. explained, citing R. v. Aruajo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 19, that a review for facial validity “requires the reviewing judge to examine the ITO and to determine whether, on the face of the information disclosed there, the justice could have issued the warrant.” At para. 38 Watt J.A. explained that a subfacial challenge involves going “behind the form of the ITO to attack or impeach the reliability of its content” (citations omitted).

[206] While the record is not expanded or altered on a facial challenge it may be on a subfacial challenge. The record may be amplified, within proper bounds, to correct or remedy minor defects. Inaccurate, misleading or illegally obtained material may be edited out of the ITO. Information may be added to the record if it has been found that there was a material omission in the ITO. However, at the end of this process the test on a subfacial challenge is the same as for a facial challenge. The question for the reviewing judge remains whether, on the record as modified on the review, there was sufficient credible and reliable evidence upon which the justice could have issued the warrant. The reviewing court is not permitted to substitute its own opinion as to whether a warrant should have issued: see Sadikov, at para. 28; Araujo; R. v. Garofoli, [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, at para. 56; R. v. Pires, R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40-43; R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, at paras. 84-88.

[207] In R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148, at paras. 66-72, Watt J.A. summarized a number of other principles related to the nature and scope of a Garofoli review. Leaving aside matters already covered, I would paraphrase the key points as follows:

1. the trial judge is required to decide whether the statutory preconditions for issuance of a warrant have been met;

2. the evidentiary record consists of the ITO, any additional evidence adduced at the hearing and the submissions of counsel;

3. the warrant is presumed to be valid until the contrary is shown;

4. the proper approach is a contextual analysis of the record, not a piecemeal dissection of individual items of evidence in a search for alternative or exculpatory inferences;

5. like the authorizing justice, the reviewing judge may draw reasonable inferences from the ITO;

6. it matters not that an item of evidence may support more than one inference, or even an inference contrary to a precondition to the issuance of the warrant, if the overall record supports a conclusion that the warrant could have issued.

The Validity of the Search Warrant

[208] It is readily apparent from what Ms. Merritt was told by Det. Rice when he seized the cell phone from her on August 26, 2013 and from what Cst. Meisner swore to in the ITO dated August 28, 2013, that the police always intended to obtain a warrant in order to subject the cell phone to a technological analysis. At p. 38 of the ITO Cst. Meisner swore, as part of his “grounds to believe that the items to be seized will afford evidence”, that: “The phone will be analyzed by the Peel Regional Police Tech Crime Unit for a complete and thorough analysis of the phone and its contents.”

[209] Clearly, this was not a case in which the police were interested in the phone as a physical item. They were not, for example, looking for fingerprints or trace evidence on the phone itself. They were interested in the data or information stored inside the phone.

[210] Although the seizure of the phone and the issuance of the warrant preceded the release of R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, it post-dated the release of R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, (hereafter Jones (2011)). The police in this case were clearly proceeding on the basis that they should obtain a warrant before penetrating the privacy interest the accused had in the contents of the phone. In fact, Det. Rice told Ms. Merritt at the time the phone was seized that the police understood that she had a reasonable expectation of privacy in the cell phone.

[211] Unfortunately, the warrant that was issued failed to authorize the police to do what they intended to do and did do.

[212] The warrant issued by the justice of the peace was in Form 5 as provided for in s. 487(3) of the Criminal Code. I point out that that subsection provides that a warrant issued under the section may be in Form 5 “varied to suit the case”. Here the form was not modified to ensure that the warrant authorized the police to do what they proposed to do.

[213] On its face the warrant recites that there are reasonable grounds to believe that there are in “the building receptacle, locker 009 at 180 Derry Road, Mississauga, Ontario” certain things namely: “see Appendix ‘A’”. The warrant goes on to indicate that it is those things which are being sought as evidence of the crime of murder. The warrant then authorizes the police to enter the premises and search for and seize the things specified, in this case in Appendix ‘A’, and to bring them before a justice to be dealt with according to law.

[214] I observe that 180 Derry Road is not a police division but it is a police building in which the Homicide Bureau of the Peel Regional Police is located. This fact is well known to persons in the region involved in the criminal justice system. Locker 009 is an evidence locker in that building. The ITO makes it clear that the phone seized form Ms. Merritt on August 26, 2013 had been secured in that locker.

[215] Given the way in which the warrant is drafted it is Appendix A that is critically important. It describes the search that is authorized. It is agreed that Appendix A was attached to and formed part of the warrant. I pause to add that it is also agreed that Appendix C, which sets out the evidence and the grounds for the ITO, was not part of the actual warrant.

[216] Appendix A, in its totality, consists of the following:

Appendix A

(Items to be searched for at the building receptacle locker 009 located at 180 Derry Road, Mississauga, Ontario

In the matter of a Warrant to Search, pursuant to section 487.1 of the Criminal Code of Canada

1. Cell phone

[217] The net result is that the warrant authorizes the police to seize a cell phone from locker 009 at 180 Derry Road. That is something they did not need a warrant to do as they were already in lawful possession of the cell phone based on my ruling that the warrantless seizure of the phone from Ms. Merritt was lawful. Manifestly, the warrant did not on its face authorize the police to subject the phone to a “complete and thorough” technological analysis as requested in the ITO. On its face the warrant provides no judicial authorization to violate the reasonable expectation of privacy the police acknowledged the accused had in the cell phone. The cell phone was registered to Mr. Fattore and was used by both accused as their family phone.

[218] On behalf of the Crown, Mr. Taylor submits that, while in almost any other set of circumstances this warrant would be invalid, it should not be found to be invalid in the unusual context that the police were dealing with here. Mr. Taylor emphasizes that the police were seizing the phone from themselves. He submits that on its face the warrant authorizes the seizure and search of a cell phone for evidence of a murder. He points out that the police were both the subject and the executors of the search. It was Cst. Meisner who swore the ITO and, as it turned out, it was Cst. Meisner who executed the warrant by obtaining the cell phone from locker 009 and delivering it to the Technological Crimes Unit. It was Cst. Meisner who filled out the “Service Request Form” that was provided to Cst. David Burton of the Technological Crimes Unit specifying what was to be done with the phone and indicating that the authority to undertake the examination of the phone was a warrant. These factual matters are addressed in the Agreed Statement of Fact which is Exhibit 1 on the s. 8 voir dire.

[219] Mr. Taylor submits that in the context here it is appropriate to treat the cell phone as a thing to be seized from a place to be searched. While Mr. Taylor agrees that usually a warrant should specify that the police may search for information on the phone, he submits that is unnecessary where all those involved, including the justice of the peace, understood what was being authorized, where what was to be done was properly authorized based on the ITO, and where there could be no confusion or error in the execution of the warrant because the affiant is the officer who executed the warrant.

[220] Despite the thorough and convincing fashion in which this argument was presented I am unable to accept it. In my respectful view it is clear that, generally speaking, a warrant must stand on its own. While I can foresee unusual circumstances in which a warrant by express terms on the face of the warrant might incorporate parts of an ITO or another document, I leave that issue for another day. That is not the situation here. There is no reference of that sort on the face of this warrant.

[221] I have not been provided with any authority which supports the Crown’s position. A case with some similarities to this one is R. v. King, 2016 ABCA 364. In that case the appellant in a child pornography case involving the search of a computer submitted that the trial judge erred by going beyond the face of the warrant to look at the issuing procedures and the ITO (para. 17). The Alberta Court of Appeal determined that it was able to resolve the appeal without deciding “whether an Information to Obtain and a Search Warrant can be melded together for the purpose of deciding what the Warrant itself specifically authorized.” The court described that as an “important and delicate” point (para. 21).

[222] There is authority which is binding on me which suggests that reference to the supporting ITO is not available as a means of saving a warrant which is defective on its face. In R. v. Times Square Book Store (1985), 21 C.C.C. (3d) 503 (Ont. C.A.) the court considered a Crown appeal from an order of a motions judge quashing a search warrant issued to seize magazines and other documents in an obscenity case. Cory J.A., as he then was, set out the terms of the ITO as well as the warrant. At p. 507 he noted that the wording of the warrant was considerably narrower than that of the ITO in terms of specifying what could be seized. At p. 513 he concluded that the ITO was sufficient to justify the issuance of the warrant. However, he felt that the warrant itself was defective and concluded that it must be quashed. He added, also at p. 513, that “if the warrant had been worded with the same particularity and detail as the information presented on the application, it would have been valid”.

[223] Cory J.A. then set out a list of numbered points in summary of his decision (p. 513-14). His fifth point reads as follows: “The warrant, itself, must set out with the same particularity as the information used in support of the application the items which may be seized.”

[224] The clear implication of Times Square Book Store is that the warrant and the ITO are separate. A sufficient ITO will not usually save a defective warrant. This makes sense as it is the warrant that is the order of the justice. The warrant is the document which governs and delineates the exercise of the authority to search that has been granted to the police.

[225] In Scott C. Hutchison, Hutchison’s Search Warrant Manual 2015 (Toronto:Carswell, 2014), in Chapter 5, titled “Describing the Things to be Searched for and Seized”, the author says the following, at p. 93:

While the Information to Obtain and the warrant are usually prepared and considered as a package, it is important to keep in mind that a search warrant is intended to be a free standing judicial order which must be able to exist independent of the Information. It must be sufficiently specific that a person having reference only to the warrant will know what actions are and, of equal importance, what actions are not, authorized. The face of the warrant must therefore describe the things to be seized with sufficient particularity that:

(i) the issuing judicial officer

(ii) the executing officers,

(iii) the subject of the search, and

(iv) any reviewing court

will all be able to determine whether the things to be seized (or investigative steps taken) were, or were not, within the scope of the warrant. Simply put, the warrant, as a judicial order, must be prepared in such a way that the maker of the order – the issuing justice – does not simply delegate his or her discretion to the executing officer. The warrant cannot be prepared in such a way as to leave it completely to the executing officer to determine what should or should not be seized. [Emphasis in original.]

The author cites Shumiatcher v. Saskatchewan (Attorney General)(No. 2) (1960), 129 C.C.C. 270 (Sask. Q.B.) and R. v. Solloway Mills & Co. (1930), 53 C.C.C. 261 (Alta. C.A.) in support of these propositions.

[226] More recent authority to similar effect is provided in R. v. Ting, 2016 ONCA 57. In that case the police obtained a warrant to search a particular unit in a multi-unit residential building. The police believed that doors in both the front and rear of the building led to the same unit and they entered both doors simultaneously relying on the warrant. Only after entry did they realize that the front door went to a separate and different unit than the one described in the warrant. Yet it was the front unit where they located their suspect and illegal drugs.

[227] The police then obtained a second search warrant for the separate unit at the front of the building. However, as Miller J.A. observed at para. 56, the second warrant was also facially invalid because it failed to adequately describe the premises to be searched. He also observed that the ITO was not subject to the same defect as the second warrant. At para. 59 Miller J.A. said:

It is not enough, however, for the ITO to accurately describe the premises to be searched. For a search warrant to fulfill its functions, those who are relying on it – including police officers who are executing it and third parties whose cooperation is sought – must not be required to look past the warrant to the ITO. The warrant itself must be clear and limited on its face with respect to the location to be searched: see Re Times Square Book Store and the Queen (1985), 21 C.C.C. (3d) 503 (Ont. C.A.), at 513; and R. v. Parent (1989), 47 C.C.C. (3d) 385 (Y.C.A.), at 396-97.

[228] Crown counsel seeks to distinguish Ting. Mr. Taylor submits that Ting instructs us to look at such situations in a contextual way. He refers to para. 49 of Ting where Miller J.A. pointed out that without an adequate description of the premises to be searched neither the justice of the peace nor the executing police officers would know the scope of the search powers being granted.

[229] Mr. Taylor next refers to para. 51 where Miller J.A. indicated that what constitutes an adequate description will vary with the location to be searched. This is the basis upon which Mr. Taylor attempts to distinguish Ting. He emphasizes that in Ting the court was dealing with a multi-unit building. Here we are dealing with a single cell phone. Mr. Taylor submits that the Ting case may have been decided differently if a single unit building was involved. In Ting the multi-unit nature of the building is what led to the problem with the particularity of the warrant. Mr. Taylor emphasizes that here the justice of the peace and the executing officers both knew what powers the police had been granted.

[230] I agree with Mr. Taylor’s submission that context will impact whether there is a particularization problem. However, the problem in our case is that no invasion of privacy of any kind, let alone what was contemplated by the ITO, was authorized by the warrant. On the face of the warrant the justice of the peace had not authorized a technical examination of the contents of the phone. It was that technological examination which violated the privacy interest in question and which had to be authorized in some understandable fashion on the face of the warrant.

[231] With respect, the importance of context mentioned at paras. 49 and 51 of Ting does not cross over to undermine the entirely separate point being made at para. 59 of Ting. That paragraph makes the point that it is not enough for the ITO to adequately describe what is permitted or authorized. As Miller J.A. said at para. 59, the warrant itself must be clear on its face with respect to the location to be searched. In our case the place to be searched was the cell phone, not locker 009.

[232] As I mentioned earlier, Mr. Taylor commenced his submissions by stating that it was the Crown’s position that the cell phone is a thing to be seized from a place to be searched. He follows up with a submission that it was obvious from the unusual context here that a technological examination of the phone had been authorized.

[233] Based on cases such as Jones (2011) and Vu I do not think this is tenable. The place to be searched in this case happens to be a thing that, by virtue of its capabilities, is to be treated like a computer: Vu, at para. 38. The place to be searched is defined by the reasonable expectations of privacy that are at stake and in this instance these were all related to what was stored in the cell phone. Both Jones (2011) and Vu make it clear that a technical examination of a cell phone or a computer requires specific pre-authorization.

[234] During the course of his submissions Mr. Taylor relied on the point that a warrant does not have to set out how the police will determine if the thing to be seized will afford evidence by way of any further testing or examination. He submitted that a warrant in a drug case does not have to specify that any suspected drugs found during a search will be subjected to analysis.

[235] Respectfully, this submission misses the point that the drugs found as the result of a search are the evidence. It is not the cell phone in this case that is the evidence. The cell phone is the place to be searched to locate the evidence that the police have demonstrated reasonable grounds to believe will be found upon a technological examination. It is, therefore, the technological examination which constitutes the search by violating a reasonable expectation of privacy and so, unlike in a drug case, it is the technical analysis that must be authorized by the warrant.

[236] To be clear, I do not mean by this that the warrant must say that a technical examination of the phone is authorized, although that would be helpful. But what must be described is what the police are authorized to look for on the cell phone. If the police are authorized to look for text messages, contact information, cell phone activity, or pictures, for example, it will be implicit that they are authorized to do so by appropriate technical means.

[237] In my view, this is why two cases referred to by Mr. Taylor do not assist the Crown’s argument that the forensic imaging or technical examination of the phone is a separate step from the search of the phone. The two cases referred to are R. v. Nurse, 2014 ONSC 1779 and United States v. Viscomi, 2016 ONSC 5423.

[238] Mr. Taylor submits that in Nurse a warrant in substantially the same terms as that issued in this case was upheld as valid by my colleague Coroza J. The police had seized two BlackBerry devices incident to a lawful arrest. The police then obtained a warrant which they used to remove the devices from an evidence vault. They eventually sent them to the RCMP for technical analysis. In that case the affiant had not stated in the ITO that the police would be extracting data from the phones but he did say they would be sent to a unit which specialized in the forensic analysis of electronic devices and the recovery and analysis of stored data.

[239] Significantly, in my view, in upholding the warrant in that case Coroza J. said, at para. 16, that Appendix A affixed to the warrant stated that the police will enter the evidence vault “and that a search will be conducted on a number of electronic items listed” (emphasis in original). Then, under “Things to be Searched For” in Appendix A, the affiant listed items capable of storing data. Justice Coroza, therefore, was able to conclude that the warrant itself authorized a search “on” data containing devices. Nothing on the face of the warrant I am dealing with would allow me to reason in a similar fashion.

[240] In Viscomi there was an even clearer basis for concluding that the warrant authorized a technical examination for data or information about certain subjects stored on electronic devices. See paras. 80-82, 94, 103-105.

[241] I am unable to see how either Nurse or Viscomi assist the Crown in the case before me. There is simply no wording on the face of the warrant I am dealing with which permitted the police to look into the cell phone for anything.

[242] I conclude that the technological examination of the cell phone was conducted without a valid warrant. As no other basis is advanced by the Crown to justify the reasonableness of the search, I find that the examination of the cell phone was carried out in violation of s. 8 of the Charter.

Could a Warrant Have Issued Based on ITO #6?

Facial Validity

[243] ITO #6 is challenged primarily on facial grounds. As facta were not prepared my understanding of the submissions is based on the oral argument. As I understand the argument the main thrust of the defence submission is that the PDF file of the mortise lock found on the phone, which is the evidence the Crown wants admitted, is a downloaded data file. Mr. Hechter submits that nothing in the ITO could support the issuance of a warrant to search for downloaded data. Mr. Hechter points out that there is mention in the “grounds” portion of the ITO (pp. 37-39) of cell phone activity, contact details, texts made and received, phone history and pictures. However, there is no reference in the ITO to downloads or to downloaded data.

[244] The second major thrust of Mr. Hechter’s submissions, as I understand them, is that the affidavit is seeking what is described at p. 38 of the ITO as “a complete and thorough analysis of the phone and its contents”. It is submitted that the content of the ITO is inadequate to justify such a sweeping and allegedly overboard authorization. Consequently, a complete examination of the phone is unsupportable on the basis of the ITO. Even if the ITO could support some more limited form of examination of the phone it could not support doing what was necessary to find the PDF file.

[245] These submissions are combined with supplementary submissions that the description of “cell phone” in locker 009 is inadequate to identify with sufficient particularity which cell phone is to be subjected to the complete and thorough analysis. In this regard, Mr. Hechter points out that more then one cell phone is referred to in ITO #6.

[246] Mr. Hechter also submits that some of the language in the “grounds” portion of the ITO is confusing or makes no sense. He refers in particular to the second last paragraph on p. 37 of the ITO.

[247] Counsel further submits that my earlier ruling made during the statement voir dire that the accused were not, legally speaking, suspects as of August 28, 2013 because they were not “implicated” in the commission of the offence, stands as a legal impediment to the ITO providing grounds to examine the phone. Counsel submits that the texts and other evidence the police hoped to garner from the cell phone could not lead them anywhere given my previous finding. This amounts to a submission that not meeting the legal definition of suspects precludes a finding that the prerequisites to the issuance of a search warrant pursuant to s. 487(1) could be met.

[248] Mr. Hechter further submits that the affiant has repeatedly set out information that is irrelevant, prejudicial, inflammatory and character blackening. He submits this is a facial validity issue on the basis that the affiant was putting forward reputation as substantive evidence to help breathe life into his generally inadequate grounds. Counsel refers to the comments made by Wilson J. in Debot, at para. 65, in support of this submission. There Wilson J. said that it is artificial to say that reputation can turn an “‘insubstantial’ case into a sufficient one”.

[249] All of these submissions on behalf of the accused are set into the background of an overarching general submission that the content of the ITO is insufficient to support a conclusion that there are reasonable grounds to believe that there are things on the phone that will afford evidence of the offence, and that the ITO falls far short of being capable of supporting the sweeping examination that was sought and resulted in finding of the PDF file.

[250] Before dealing with these submissions I wish to mention that I understand the PDF file was found on a memory card that had been inserted into the phone. The Agreed Statement of Fact makes reference to Cst. Burton’s evidence at the preliminary inquiry forming part of the evidence for this application. Cst. Burton was assigned to the “Tech Crime” Section and examined the content of the phone. Based on his evidence, I understand that the police were never able to fully examine the contents of the cell phone because their forensic tools did not function in relation to the make or brand of the cell phone itself. Cst. Burton was able to use those tools to examine the memory card. In respect of the cell phone itself, Cst. Burton turned it on and viewed a number of the things the police were interested in. He then photographed a number of screen displays. The phone never was subjected to the complete and thorough examination contemplated by the ITO.

Analysis

[251] In order to answer the question whether the information contained in the ITO could support the issuance of the warrant I must assume the correctness of the content of the ITO and consider it as a whole. I must also make some reasonable allowance for the language used and the means by which the affiant expressed himself. As Cory J. said in Times Square Book Store, at p. 512, warrants need not be drafted with legal precision and a “reasonable latitude” must be allowed when considering the wording in a warrant. It makes sense that the same approach should be applied to ITOs. The rationale cited by Cory J. on this point was that a warrant is an investigative document. The same rationale applies to the ITO. These documents must sometimes be prepared under time pressure and in the context of a rapidly evolving investigation.

[252] The investigative nature of the process is also the context in which to contemplate what the police were looking for and to understand why they felt it would afford evidence, as set out in the ITO. This point is made with some force in CanadianOxy Chemicals Ltd. at paras. 19-24. The prospective approach required in many police investigations and the nature of an investigation can be quite different than the after the fact type of analysis that often characterizes later review proceedings.

[253] As previously mentioned when dealing with the warrantless seizure of the phone form Ms. Merritt, CanadianOxy Chemicals Ltd. establishes that the words “will afford evidence with respect to the commission of an offence” are to be interpreted broadly. These words encompass “all materials which might shed light on the circumstances of an event which appears to constitute an offence” (para. 15). The police have the responsibility to collect any evidence that will assist in determining what happened, who is responsible, and whether the conduct constitutes a crime (para. 21). It must also be remembered that the “credibly based probability” analysis at the foundation of the Hunter v. Southam standard is applied in the context of determining whether there are reasonable grounds to believe. While that is a meaningful standard there is no requirement to establish a prima facie case.

[254] As Mr. Taylor emphasized in his responding submissions, the grounds for believing that evidence will be located does not require a showing that the evidence sought will incriminate the target of the search. See R. v. Campbell, 2010 ONCA 588, at para. 55. Nor is it necessary that the thing sought be, by itself, evidence of the crime. It is sufficient if it is something which in combination with other things could reasonably be regarded as evidence: R. v. Canadian Broadcasting Corp., at p. 8. These points address Mr. Hechter’s submission that my previous ruling on the “suspect issue” is an impediment to the ITO being capable of supporting the issuance of the warrant.

[255] It is conceded that there was sufficient evidence in the ITO to establish that Caleb Harrison was murdered. The determinative question is whether there was sufficient credible and reliable evidence in the ITO to permit the issuing justice to find that there were reasonable grounds to conclude that a complete and thorough analysis of the cell phone would afford evidence in relation to that crime.

[256] At this point I will deal with the subsidiary argument that the phone to be searched is not adequately described. I disagree. The ITO makes clear reference to the cell phone located in locker 009 as the phone to be examined. It is clear from the ITO read as a whole that the cell phone in question was the one seized from Melissa Merritt on August 26, 2013 and that it had been secured in locker 009.

[257] Mr. Hechter submits that in the absence of more detailed evidence about the locker and its contents the justice of the peace had no way of knowing how many cell phones might be in locker 009. However, I point out that there was no basis to be confused about that. There is no suggestion anywhere in the ITO that any other items, let alone other cell phones, had been placed in locker 009. The common sense inference in the absence of evidence to the contrary, is that the police placed the phone seized from Ms. Merritt into locker 009 in order to secure it and to protect its continuity from an evidential standpoint.

[258] In the ITO Cst. Meisner explains that Caleb Harrison had communicated with others the night before he was found dead. Cell tower information indicated he was likely away from his home at that time. The police were trying to piece together his whereabouts. That was a consideration I referred to which supported the grounds to seize the phone without a warrant on August 26, 2013 which I have already dealt with. As of August 26, 2013 the police also felt that Ms. Merritt’s cell phone would assist with that.

[259] However, as previously mentioned, by August 28, 2013 when the ITO was sworn, Cst. Meisner had access to some of the results of production orders for cell phone records. That is set out in the ITO. As a result the basis to conclude that usage information associated with the cell phone seized from Ms. Merritt would assist in that regard had been eroded.

[260] The ITO prepared by Cst. Meisner placed the importance of the information reasonably expected to be found on the phone seized from Ms. Merritt on a somewhat different basis. The concluding pages of the ITO make it clear that by that point the police thought that whoever killed Caleb Harrison must have had “intimate knowledge of the victim, his habits and behaviours” (p. 36). Cst. Meisner deposed that, as the deceased’s ex-wife, Ms. Merritt had such intimate knowledge.

[261] The ITO also developed evidence to show that Melissa Merritt and Christopher Fattore had a potential motive related to the custody and access dispute in relation to the children. There was a history of animosity. In the past Ms. Merritt had abducted the children and had later been convicted of doing so.

[262] Cst. Meisner swore in the ITO that Melissa Merritt made and received calls and made and received texts on August 23 and 24, 2013. The police had determined this from the cell phone records. However, the police did not know who the people she was in contact with were. It was important for the police to identify who those people were given the motive evidence and the fact that Ms. Merritt had knowledge of the victim and his habits. They had reasonable grounds to believe that examining the cell phone would assist in identifying those people.

[263] The importance of identifying and investigating Ms. Merritt’s contacts was enhanced by the fact that Melissa Merritt and Christopher Fattore had provided detailed accounts of their whereabouts on August 22 and 23, 2013. They provided an alibi.

[264] If they had not committed the offence they may, as persons with a motive, have been in contact with others who may have committed the killing. In order to investigate that potential possibility the police needed to identify who was communicated with and then to conduct other investigation into the whereabouts and activities of those persons around the time of the homicide. In this regard forensic evidence and video surveillance, both mentioned in the ITO, could play a role. This is how the thorough examination of the phone, to look for all the things mentioned in the ITO, including pictures, would help in identifying potential suspects.

[265] I am satisfied that the ITO contained sufficient evidence to support the drawing of all inferences necessary to justify the complete and thorough examination of the phone on this basis.

[266] First, I note that throughout the ITO items of information are set out and sourced which support the conclusion that the accused had a motive to commit the crime. There is the history of physical abuse alleged by Ms. Merritt leading to her separation and divorce from Caleb Harrison and the history of the bitter custody and access dispute that was still ongoing. This was accompanied by evidence that Ms. Merritt had previously been convicted of parental child abduction. She had subsequently violated the terms of her bail in relation to the abduction charge. That type of conduct, while discreditable, demonstrates just how important issues related to the children could be in motiving Melissa Merritt.

[267] Mr. Fattore was with Ms. Merritt and the abducted children in Nova Scotia. He and Ms. Merritt had four children of their own together. M.1 and M.2 were to be turned back over to Caleb Harrison on the day he was found dead. All of this was well developed in the ITO.

[268] Mr. Hechter submits that the ITO contains inflammatory and character blackening evidence. However, Mr. Hechter acknowledges that the information he objects to as set out by Cst. Meisner is factually accurate. He agrees that a number of persons associated with Caleb Harrison spoke disparagingly about Ms. Merritt. One of them referred to her as a “psycho”. Mr. Hechter says this sort of evidence was irrelevant, should not have been included in the ITO and could not be relied upon by the justice of the peace.

[269] On behalf of the Crown, Mr. Taylor has referred to all of the items objected to on this basis by Mr. Hechter. He submits, and I agree, that in the circumstances here this evidence, which is recounted in an accurate fashion by Cst. Meisner, assists in demonstrating the depth of the significantly troubled history between Melissa Merritt and Caleb Harrison. While the people the police spoke to sometimes used impolite or colourful language there was a legitimate reason to include their evidence and Cst. Meisner had to be accurate in describing what the police had been told by the various witnesses. In addition, the underlying events the witnesses spoke of are often corroborated by other evidence which his contained in the ITO. Some of the things said by the witnesses and recounted in the ITO could be viewed as unreliable taken on their own but, placed into the larger context developed in the ITO, what those witnesses said helps by shedding light on the nature of the relationship between the parties. Melissa Merritt herself confirms a history of domestic violence and extreme animosity between herself, Caleb Harrison and the Harrison family.

[270] Caleb Harrison’s girlfriend, Corinda McEwen, is the witness who referred to Ms. Merritt as “psycho”. However, she also recounted that Caleb Harrison was always concerned that Ms. Merritt would take off with the children again. The ITO contains reference to the occurrence report of the previous abduction. It also references Ms. Merritt admitting to the abduction.

[271] It must be remembered that a justice of the peace is a judicial officer who should be given some credit for understanding the proper and improper uses of evidence. Here I am satisfied that those things that Mr. Hechter raised concerns about, for the most part, have some value beyond their potential to be inflammatory or prejudicial. They have some value in assisting in understanding the nature of the relationship. This evidence permitted that justice of the peace to draw the inference that the animosity between the parties had not subsided and that custody and access issues might still be significant motivators.

[272] As Mr. Taylor points out, the somewhat dated history of child abduction and breach of bail charges were also relevant because they were historical factors Ms. Merritt would know might prevent her from obtaining joint custody or enhanced access to the children in the future. That could, in turn, further impact the strength of her motive to kill Caleb Harrison or to be involved in his death in an indirect fashion.

[273] Mr. Hechter also said as part of his submissions that the ITO did not support the conclusion that Ms. Merritt would have intimate knowledge of Caleb Harrison’s habits and behaviours. Again, I disagree.

[274] Caleb Harrison was found tucked into his bed with his sleeping mask on. There is evidence he always wore the mask. He was killed at a time when he did not have the children with him. Ms. Merritt would be aware of these matters. There was no sign of forced entry. M.1 had a key to his father’s house and M.1 and M.2 had been with the accused for summer access. They were to be returned to Caleb Harrison’s custody on August 23, 2013.

[275] There are certainly a number of circumstances that suggest that whoever killed Caleb Harrison knew of his habits. It appeared that the scene of his bedroom had been staged. Initially it did not appear there had been a struggle. Yet the evidence is that he died from significant force applied to his neck. He also had other injuries.

[276] Melissa Merritt and Caleb Harrison had been married. Subsequently, they maintained communication in relation to the children. She would obviously be aware of when the children would be with Caleb and when they would not. Over the course of that summer the two children were going back and forth between Caleb Harrison and Melissa Merritt and Christopher Fattore. The children were potentially a source of information about Caleb’s habits. These circumstances support a reasonable inference that Ms. Merritt would be familiar with those habits that are relevant here.

[277] I also reject Mr. Hechter’s submission that Ms. Merritt would have to meet the legal definition of a suspect before the contents of the ITO could give rise to reasonable grounds to believe a review of the contents of the cell phone could afford evidence of the offence. The police were considering her activities because she had a strong motive and knew of Caleb Harrison’s habits. There was an unusual history of difficulty and animosity between them. But as of August 28, 2013 there was no evidence implicating the accused in the offence. As I have previously said, that changed the following day when the police examined the contents of the garbage they seized from the home of the accused.

[278] While I have found that the accused were not suspects they were certainly potential suspects or persons of interest. The ITO explained why there were reasonable grounds to believe that an analysis of the phone would afford evidence. What there were reasonable grounds to believe would be found on the phone would shed light, one way or the other, on the “what” and the “who” questions. There is no requirement that the police have evidence to implicate someone in a crime in order to meet the meaningful but relatively modest standard of reasonable grounds to believe that something to be searched for will have evidential value.

[279] For the first 35 pages of the ITO Cst. Meisner set out in a step-by-step fashion the information that had been developed during the previous five days of police investigation. In the final pages of the ITO he stated his grounds. The building blocks for his grounds were statements of conclusion about certain matters. However, they were not merely conclusory statements because they were reasonable conclusions that were supported by the sourced factual content that came first.

[280] Some parts of the grounds could have been stated more clearly. I agree with Mr. Hechter that the second last paragraph at p. 37 is awkward and difficult to understand. However, in my view, it is neither inaccurate or essential to the grounds as understood from a reading of the ITO as a whole.

[281] I am also not persuaded that the ITO purports to authorize an overbroad search. Based on the ITO the police were looking for phone usage, contact information to help identify others, pictures, texts and phone history. They were not looking for downloaded PDF files. However, as stated in Jones (2011) and Vu, it will often be necessary for the police to look through much of a computer or device in order to search for what they have been authorized to obtain. Images may be found in document files and vice versa. Things stored on a computer are not always what they seem to be based on their location or description. In my view this cannot be properly characterized as looking for an elephant in a matchbox, a phrase used by Mr. Hechter during his submissions.

[282] Here we are also talking about a cell phone not a computer with massive storage capacity. While cell phones can have significant storage capacity the only evidence I have would suggest the phone in this case was a fairly typical smart phone – as of 2013. There is no particular concern arising from the evidence or the circumstance to suggest that search restrictions should have been put in place. In the circumstances I am not persuaded that a complete and thorough analysis of the phone was unwarranted to look for those things the ITO said the police believed would afford evidence. I note that in Vu Cromwell J. held, at paras. 54-55 and 57, that search protocols are not a constitutional prerequisite to a valid authorization to search a computer or a cell phone.

[283] It also seems to me that, had the police received a facially valid warrant, they would have been permitted to look at what was stored on the memory card inserted into the phone in order to see if they could locate pictures, or other things that were mentioned in the ITO. As the police would have been in a position to view what was on the memory card, they would have seen the PDF file which would have fallen within the scope of the plain view doctrine and of s. 489(1) of the Criminal Code: see Jones (2011). It would have been apparent that the PDF file about the same type of lock that was on the front door of Caleb Harrison’s residence would afford evidence in respect of the offence. The PDF file contains diagrams of the components of such locking mechanisms. There was no sign of forced entry and there was the possibility that the lock had been picked or disabled.

[284] For all of the reasons stated above I am of the view that on its face, ITO #6 was capable of supporting a warrant to conduct a complete and thorough analysis of the phone to look for the things mentioned in the grounds portion of the ITO that I have previously listed.

[285] That would inevitably have led to the discovery of the PDF file which the police would have been entitled to seize pursuant to the plain view doctrine and s. 489(1) of the Criminal Code.

Subfacial Validity

[286] While a number of matters are raised most fall into the realm of an error which can be corrected by amplification and/or do not affect the existence of grounds.

[287] At p. 4 of the ITO under “Background of Investigation” it is stated in the last line on the page that Ms. Merritt abducted the children on April 23, 2009. It is agreed this should be corrected to read “April 16, 2009”.

[288] At p. 5 of the ITO, in the second line on the page, there is a statement that Belinda (Bridget) Harrison had custody of the children M.1 and M.2 at the time of their abduction. That is incorrect. At that point she was exercising the rights to access that Caleb Harrison had. Caleb Harrison was in jail. When Melissa Merritt left with the children and could not be located Bridget Harrison applied to the court and was granted an order of full custody. That happened within approximately one week of the children being taken. It is agreed that this error may be corrected by way of amplification.

[289] Mr. Hechter also directs me to para. 29(d) at p. 21 of the ITO. There Corinda McEwen is attributed with having said that she thought Melissa Merritt had a key to Caleb Harrison’s home. Mr. Hechter submits this seems to have been a misreading by Cst. Meisner of Corinda McEwen’s statement. In that statement Ms. McEwen said that she, Ms. McEwen, had a key. It is agreed this can and should be corrected.

[290] At p. 23, para. 31(p) of the ITO, is a statement that “Belinda”, who was Caleb Harrison’s mother, frequently referred to in these proceedings as Bridget Harrison, had no medical conditions. I am advised she had early signs of osteoporosis which factored into an assessment of her neck injuries. This correction will be made.

[291] As mentioned above, Crown counsel agrees that for the purpose of this application only, reference to statements made to Det. Rice by Ms. Merritt and/or Mr. Fattore on August 24 and 25, 2013 should be edited out. I do so accordingly. There is scant reference to information from those statements in the ITO.

[292] None of the foregoing points affect whether the ITO in this case could have supported the issuance of a warrant.

[293] Mr. Hechter raises two potentially significant issues of a subfacial nature. The first is an alleged material omission from para. 50 at p. 34 of the ITO. In that paragraph Cst. Meisner states that on August 26, 2013 he reviewed the production order content for the phone number 647-768-1614, the phone number for Melissa Merritt. He said he had “learned the following”. He then set out that she did not communicate with anyone between August 22, 2013 at 5:05 p.m. and August 23, 2013 at 2:13 p.m. He then made reference to Melissa Merritt texting Caleb Harrison at 2:13 p.m. on August 23, 2013 to remind him that she would be dropping the children off at 5:00 p.m. that day. Cst. Meisner then also set out that the phone records show there was a series of communications with other numbers. No particular persons were identified as associated with those numbers.

[294] Mr. Hechter submits that Cst. Meisner made a material omission when he failed to advise the justice of the peace that the production order for the 768-1614 number covered a period form August 1 to August 25, 2013. He submits that such disclosure would substantially diminish the strength of any inference that the activity located on the actual phone would be of assistance to the police.

[295] I do not see this omission as material or misleading. As I read the grounds, Cst. Meisner was saying that by examining the contact information in the phone itself the police would be assisted in learning the identity of the persons Ms. Merritt was communicating with around the time of the murder. That could assist the police in identifying other potential suspects. This was tied to the theory that whoever killed Caleb Harrison had access to intimate details of his habits. As reviewed earlier, the ITO said that Ms. Merritt was such a person and established that she had a motive. It was important for the police to identify whom she was communicating with around the time of the murder so that those persons could be investigated. In this regard it was who Ms. Merritt was communicating with around the time of the murder that was important, not the duration of the production order or what it otherwise showed.

[296] I do not see this as a material omission. Even if I were to read this into the ITO it would not change my assessment that a warrant could issue. I do not accept that it would significantly diminish the value of inferences that were open to the justice of the peace.

[297] Mr. Hechter’s final submission is that Cst. Meisner violated his duty to make full, frank and fair disclosure because he did not set out in the ITO the circumstances under which the phone was seized without a warrant. He submits this is important as the constitutionality of the seizure impacts whether a warrant should issue.

[298] The first thing I would point out is that the ITO does set out that the phone was seized from Ms. Merritt by Det. Rice during her interview on August 26, 2013. The first reference appears in an unnumbered paragraph at p. 5 of the ITO. Para. 48 on p. 34 of the ITO is very clear on this point. Para. 49 states that the phone seized was placed into locker 009. While the words “without a warrant” are not included, I would think that would be rather obvious given that the police were then applying for a warrant.

[299] Mr. Hechter also submits that the justice of the peace should have been advised that the phone was taken without her consent. In my view that is obvious given that Cst. Meisner said it was “seized”. The fact that the police were applying for a warrant would also indicate that Ms. Merritt had not consented to the phone being examined. Clearly the only reason it was taken was so it could be examined.

[300] Mr. Hechter also submits that the justice of the peace should have been advised that Ms. Merritt was not provided with her rights to counsel. In my view that was irrelevant in the circumstances. I have found that Ms. Merritt was not detained. I also note that she was advised at the beginning of the August 26, 2013 interview that she could speak to a lawyer at any time.

[301] These are not material omissions. Even if this information had been included it would not affect my conclusion that a warrant in the terms sought in the ITO could have issued.

[302] Unfortunately, the warrant itself was deficient. Consequently there was a violation of s. 8 of the Charter. However, I conclude that a warrant to undertake a complete and thorough examination of the phone to look for texts, phone activity, pictures, contact information and other information mentioned could have issued.

[303] In accordance with the agreement of counsel the application to exclude the evidence pursuant to s. 24(2) of the Charter will be dealt with after all of the numerous s. 8 applications yet to come have been heard and decided.

F. Dawson J.

Released: January 5, 2017