BARRIE COURT FILE NO.: CR-17-0000122
DATE: 20180312
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NICHOLAS JENKINS
Defendant
Amber Meiners, for the Crown
Justin Yuen, for the Defendant
HEARD: February 6, 2018
CELL PHONE SEARCH PRETRIAL RULING
EDWARDS j.:
Overview
[1] Nicholas Jenkins (Jenkins) is charged with various drug related offences, which include allegations that he trafficked in cocaine, fentanyl and heroin in January 2017.
[2] As a result of surveillance conducted of Jenkins by members of the Street Crime Unit of the Barrie Police Service (BPS), he was arrested on January 20, 2017.
[3] The surveillance established meetings between Jenkins and other individuals, but no observation of actual drugs being transferred. This was because the observations were usually made when Jenkins was in his car or inside a residence. As such, the information from the text messages would provide significant evidence that would corroborate the surveillance evidence that a drug transaction had taken place.
[4] At the time of his arrest, Jenkins was a rear seat passenger of a black Jeep Compass. He was arrested by Detective Forrest (Forrest) and subjected to a search incident to arrest. The search yielded, amongst other things, a black LG cell phone and a black Apple iPhone (the cell phones). Both of the cell phones were seized and turned over to Detective Breedon (Breedon).
[5] After Jenkins’ arrest, search warrants were submitted to a Justice of the Peace. A warrant was ultimately granted at 9:54 p.m. on January 20, 2017. The search warrant authorized the search of Jenkins’ residence at 27 Copeman Crescent in the City of Barrie (“The residence”), as well as his black 2003 Honda Civic (“The Honda”). The warrant did not authorize the search of cell phones found on Jenkins’ person.
[6] The Information to Obtain (ITO) which was submitted to the Justice of the Peace at approximately 9:28 p.m., reviewed the fact that Jenkins had been arrested at approximately 4:41 p.m., but did not indicate that as a result of the search of his person incident to arrest cell phones had already been seized.
[7] In his evidence in-chief, Officer Barnes (Barnes) was asked why he had not included information in the ITO to the effect that when Jenkins was arrested he had been searched, and as a result of that search the cell phones had already been seized. Barnes simply stated “I made a mistake”.
[8] The search warrant authorized the search of the residence and the Honda between 9:54 p.m. and 11:59 p.m. on January 20, 2017. The search warrant specifically provided for the search of drug related items, including:
Cell phones, and the data that is contained within the cell phones, or other communication devices – traffickers frequently employ the use of one or more cell phones or devices to coordinate the sale of illicit substances.
[9] The two cell phones seized from Jenkins were handed over to Police Constable Pelan (Pelan) by Barnes on February 15, 2017, for the purpose of a full search of the cell phones. The full search, or what was referred to as the full extraction, did not take place for nearly another two and a half months.
[10] Pelan testified during the course of the voir dire that before he conducted the data dump he reviewed the search warrant, and that from his perspective the search warrant gave him the authority to conduct the search and data dump.
[11] The actual search of the cell phones took place on April 26 and April 27, 2017, when Pelan used a computer program known as Cellebrite to complete a full extraction of the cell phones which had been seized from Jenkins at the time of his arrest. The initial attempt to conduct a search of the cell phones, in what is commonly referred to as a “data dump”, was attempted on April 26, 2017 but was unsuccessful. On April 27, 2017, Pelan was successful in completing the data dump which provided, in effect, a mirror image of the entire contents of Jenkins’ cell phones.
[12] Once the data dump had been completed, Pelan saved the contents to a folder on the BPS computer system.
[13] With the data dump complete, Forrest was then able to use a software program to analyze the contents. In cross-examination, Forrest testified that the search he conducted of the data dump was a search that he believed was something that the search warrant allowed for.
[14] As part of his investigation, Forrest was interested in the text messages between Jenkins and a number of individuals with whom Jenkins had been seen prior to his arrest, conducting what the BPS believed to have been drug transactions. Various reports were generated reflecting those text messages during the period of surveillance. The text messages would suggest that Jenkins and the various individuals with whom he was texting, were going to conduct a purchase and sale of drugs at times that would match up with the police surveillance.
[15] In cross-examination, Barnes acknowledged that the search of the contents of an individual’s cell phone “could be intrusive”, and it was specifically because of that he sought the warrant that he did that would allow for the search of cell phones.
[16] At the time that Barnes gave the cell phones to Pelan, he stated that he did not review the search warrant nor did he believe that he gave Pelan the search warrant to review. He also does not believe that he spoke to Pelan about the contents of the search warrant.
Position of the Crown
[17] While acknowledging that the evidence establishes that Forrest had made a mistake when he believed the search warrant covered the search of the cell phones seized from Jenkins, Crown counsel argues that it is quite clear from a review of the warrant itself that it was intended to cover the search of the contents of the cell phones. It is argued that the mistake was an “honest, human mistake”, and that there is no evidence of any bad faith on the part of any of the Barrie Police officers involved in the search. By inference it can be argued that if the cell phones had been located at the residence or in the Honda, the search of the contents of the cell phones would have been covered by the warrant.
[18] If the search warrant did not cover the actual search that was conducted on the cell phones, Crown counsel argues that the evidence should not be excluded under s. 24(2) of the Charter after a consideration of the factors set forth in R. v. Grant, 2009 SCC 32.
[19] Applying the Grant analysis, Crown counsel argues that the alleged Charter-infringing conduct was neither deliberate nor egregious, and that there was no flagrant or deliberate breach of Jenkins’ Charter rights so as to justify exclusion.
[20] Crown counsel suggests that the evidence from the various police officers involved in the search warrant, establishes that they had a good faith belief that the warrant covered the cell phones seized from Jenkins. It is argued that the fact that the warrant specifically covered the actual search of the data held within the cell phones, confirms that the officers understood the need for something more than a warrant that would allow for the seizure of the actual cell phones, and that the warrant had to spell out that the search could include the contents.
[21] As far as the impact of the breach on Jenkins’ Charter protected interest, Crown counsel acknowledges that a cell phone attracts a high degree of privacy given that cell phones today have the capability of storing a significant amount of personal detail. In this case, however, it is argued that because Jenkins was on parole with conditions that he was not to possess more than one mobile communication device and the fact that he was found in possession of two cell phones, such parole conditions impact Jenkins’ Charter protected rights to privacy. As such, Crown counsel argues that the admission of the contents of the cell phones would not send the message to the public that Jenkins’ Charter rights were of little avail, nor would it bring the administration of justice into disrepute.
[22] As to the third stage of the Grant inquiry, Crown counsel points to the obvious, that the information downloaded is real evidence that is directly relevant to the charges before the court. As such, it is argued that society has a compelling interest in seeing this case tried on its merits, and that the information from the text messages provides reliable evidence that essentially confirms the surveillance evidence of Jenkins leading up to his arrest. Fundamentally, if this court admits the evidence from Jenkins’ cell phones, it would not bring the administration of justice into disrepute.
Position of the Defence
[23] As I did not call upon the defence to argue the s. 8 breach, Mr. Yuen restricted his submissions to the Grant analysis. Mr. Yuen submitted that a cell phone should attract a high degree of privacy, as it contains a remarkable amount of data which allows the police to extract GPS data that would reflect where an individual was at any given time.
[24] On the evidence before the court, Mr. Yuen submitted that after Jenkins was arrested Barnes had approximately five hours to prepare the ITO for submission to the Justice of the Peace, but failed to include information that would have alerted the Justice of the Peace to the fact that Jenkins had already been arrested and cell phones seized as a result of the search incident to arrest.
[25] The police work reflected in the evidence in the voir dire, Mr. Yuen’s submits, reflects gross negligence on the part of the police officers involved, in that they made more than just a mistake in conducting the search of Jenkins’ cell phones when such search was not provided for in the warrant. The mistakes that were made, which amount to negligence in Mr. Yuen’s submissions, were as follows:
(a) the ITO did not disclose that cell phones had already been seized from Jenkins;
(b) the search warrant was time restricted and location restricted, i.e. the seizure of any cell phones and the search of any cell phones could only occur within the time framed prescribed by the search warrant, and provided the seizure occurred at the residence or the Honda;
(c) the actual search that was conducted by Pelan through the data extraction on April 27, 2017, was conducted - from Pelan’s perspective, on the basis of the search warrant which he mistakenly believed gave him the authority to conduct the data dump;
(d) the subsequent search of the data dump conducted by Forrest was also mistakenly done as a result of Forrest’s belief that the search warrant covered the search that he was conducting.
[26] Based on the aforementioned mistakes, Mr. Yuen argues that at the first stage of the Grant analysis the Charter-infringing conduct of the BPS was serious and would bring the administration of justice into disrepute.
[27] Dealing with the second stage of the Grant analysis, in terms of the impact of the breach on Jenkins’ Charter protected interests, Mr. Yuen argues that the law is now very clear in confirming that an individual’s cell phone attracts a high degree of privacy interest, and that any search of such a cell phone without appropriate authorization is a serious breach of an accused’s privacy interest.
[28] As for the third stage of the Grant analysis, while acknowledging that society has an interest in adjudicating matters on its merits, Mr. Yuen argues that the court must preserve the integrity of the judicial system, in that the facts of this case - excluding the evidence with respect to the contents of the cell phones, will not result in the Crown’s case collapsing. The Crown will still have the evidence from the various police officers who conducted the surveillance on Jenkins prior to his arrest, as well as the evidence obtained as a result of the search warrant.
[29] Relying on the Court of Appeal decision of R. v. McGuffie, 2016 ONCA 365, Mr. Yuen suggests that if the first two factors of the Grant analysis weigh in favour of exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. As such, Mr. Yuen argues that the evidence from the data extraction in the search of Jenkins’ cell phones should be excluded.
Preliminary Issue – Privacy Interest/Parole
[30] Prior to embarking on the application to exclude the evidence seized from the two cell phones found on Jenkins, Crown counsel raised a preliminary issue as to whether or not Jenkins had a privacy interest in the contents of his cell phones. This issue was raised in the context of Jenkins being subject to a parole condition which provided:
Not to own or possess more than one mobile communication device and provide your parole supervisor with the billing statements for this device (the “condition”). [Emphasis added]
[31] Mr. Yuen argues that Jenkins never relinquished his privacy interest in his cell phones, and Jenkins did not - by accepting the condition, abandon the privacy interests that he had in the contents of his cell phones.
[32] While it could be argued that someone who was on parole may have diminished Charter rights - much like someone whose freedom was restricted within a penitentiary may have diminished Charter rights, as a matter of policy it could never be argued that those individuals who are incarcerated or on parole have no Charter rights. The condition did not give the police carte blanche to stop, detain and search his cell phones.
[33] Crown counsel correctly pointed out that Jenkins, given that he was on parole at the time of his arrest was not free of supervision, and specifically refers to the conditions in his parole papers which are marked as Exhibit “C”. While acknowledging that Jenkins had a subjective expectation of privacy, Crown counsel argues that the condition imposed on him when he signed his parole papers was a clear indication that Jenkins had given up any expectation of privacy. I was referred to two decisions, R. v. Bourdon, 2010 ONSC 2089, and R. v. Cain, 2014 ONSC 1074, in support of this argument.
Analysis Re: Preliminary Issue
[34] While I agree with the submission of the Crown that Jenkins had a lower expectation of privacy in his cell phone, that lower expectation of privacy was restricted to his obligation to produce the billing statement for his cell phone to his parole supervisor. I did not have the benefit of what information might be found on the billing statement. During the course of argument Crown counsel acknowledged that from past experience, billing statements could contain such information as the amount of data usage in a given month, as well as the telephone numbers of phone calls sent and received. In brief oral Reasons that I provided during the course of the voir dire, I advised counsel that in the absence of the actual billing statement that Jenkins would have been required to produce to his parole officer, it would be improper for me to speculate as to what could be contained in that billing statement simply based on past personal experience. Even if the billing statement did contain such information as the amount of data used in a given month and the phone numbers sent and received for a given month, I am not satisfied that the condition was such that Jenkins could be said to have given up the privacy interest that he had in the totality of the contents of his cell phones.
Analysis Re: Section 8
[35] The search of Jenkins’ cell phones could only occur if a search warrant had been issued allowing for such search. It is beyond dispute now, that as a result of the Supreme Court of Canada’s decision in R. v. Fearon, 2014 SCC 77, 2014 S.C.C. 77, that there is a very significant and important privacy interest inherent in the contents of modern day cell phones.
[36] In this case, the search that was conducted of Jenkins’ cell phones was not conducted immediately after Jenkins’ arrest for the purposes of identifying and mitigating risks to public safety. The search was conducted many months later, and according to the evidence of the various BPS officers who testified, was conducted as a result of the search warrant that had been issued the evening of Jenkins’ arrest.
[37] In point of fact, the warrant was restricted both in terms of time and place. The warrant provided for a lawful search of cell phones if they were found in the residence or the Honda. The warrant also allowed for the search of the contents of the cell phones if they were found in the residence or Honda, provided that search was conducted within the two hour time frame provided for in the warrant.
[38] The BPS officers involved in this matter clearly understood that to conduct a full search or data dump of cell phones would require a warrant. There is no dispute on that issue. Where part of the dispute and mistake occurred, was in the belief of the various BPS officers that a search could be conducted of the cell phones many months after the expiry of the search warrant. If the BPS wished to conduct the search of the cell phones many months after their seizure, they should have made that request from the Justice of the Peace who issued the warrant.
[39] In this case the BPS officers made not just one, but in my view a number of mistakes, as they executed the powers that they believed they had under the search warrant to search Jenkins’ cell phones. These mistakes were as follows:
a) the search warrant allowed for the search of cell phones that were seized from the residence or Jenkins’ car. The search warrant did not provide for the search of cell phones located on Jenkins’ person;
b) the search warrant was time limited;
c) when Barnes gave the cell phones to Pelan on February 15, 2017, Barnes should have recognized that the warrant did not cover the search of the cell phones that he was handing over to Pelan;
d) when Pelan did the data dump in April 2017, two and a half months after he had received the cell phones, he did not properly check the search warrant because if he had, he would have realized that the search warrant did not cover cell phones seized from Jenkins’ person; and
e) once the data dump had been completed, Forrest then conducted a search of the data without – again, properly satisfying himself that the search warrant gave him the authority to conduct the search that he did of the actual contents of the cell phones.
[40] The seizure of the cell phones occurred on January 20, 2017. The data dump did not occur until April 27, 2017. The search conducted by Forrest occurred shortly thereafter. The fact that three months elapsed from the time when the cell phones were seized to when the actual detailed search was conducted, demonstrates that there was no urgency to the actual search that took place revealing the information that the Crown now seeks to rely upon. There is no suggestion that the evidence would have been lost. In this case, the BPS carelessly considered that they had the authority to conduct the searches that they did on the cell phones, without carefully reviewing the search warrant which gave them the authority to do so. Had they reviewed that search warrant with care, and if they had had any concerns as to whether the warrant covered the search that they conducted, a simple enquiry of the local Crown Attorney’s Office would have undoubtedly confirmed that the search warrant did not cover cell phones seized from Jenkins’ person. As such advice would have likely been provided, a new search warrant could have been requested from the local Justice of the Peace that would have specifically covered the police search of Jenkins’ cell phones seized from his person at the time of his arrest.
[41] It would have been a relatively easy task for the BPS officers to have sought in the warrant they obtained from the Justice of the Peace permission to search cell phones that had already been seized from Jenkins, and to allow for a full search of those cell phones to take place after the expiry of the search warrant that was time limited, in relation to the search of the residence and the Honda. The BPS officers involved in this matter made mistakes. These mistakes may be viewed by many as an honest mistake. In my view, none of the BPS officers who testified on the voir dire left me with the impression that their mistake was malicious, or a matter of bad faith. Nonetheless their mistakes, in my view, were a result of sloppy police work and was negligent.
[42] There was, as reflected in the evidence, no urgency to conduct the actual search and data dump of the cell phones, given that this did not take place until three or five months after Jenkins’ arrest. The search of a cell phone is a significant intrusion on an individual’s privacy interest. It was, in my view, incumbent upon the officers conducting the search and cell phone data dump to ensure that the search warrant that gave them that authorization was: (a) from a time perspective still in effect; and b) that it authorized the search from a location perspective. In my view, as I had indicated to counsel during the course of argument, the search that was conducted of Jenkins’ cell phones was a breach of Jenkins’ s. 8 rights and, as such, the court was required to move to an analysis of s. 24(2) of the Charter.
Grant Analysis
Seriousness of the Charter-Infringing Conduct
[43] Crown counsel submits that the Charter-infringing conduct in this case was neither deliberate nor egregious. The Crown argues that the conduct of the BPS was neither a flagrant nor a deliberate breach of Jenkins’ Charter rights, such that the court should exclude the evidence.
[44] Because the police officers who were involved in the search acted in good faith, believing that the cell phones seized from Jenkins were covered under the search warrant, the Crown argues that the court does not need to dissociate itself from the conduct of the investigating police officers in this case, and that to admit the evidence from the cell phones would not send a message to the public that the justice system condones any serious state misconduct.
[45] There is a high expectation of privacy in the contents of a cell phone. This area of the law is no longer in dispute, and Fearon had been decided by the Supreme Court of Canada by 2014. The facts of this case amply demonstrate that the BPS were well aware of their obligation to obtain a search warrant to search a cell phone, as the search warrant itself contemplated the potential seizure of cell phones from the residence or vehicle, and the actual search of the cell phones themselves. While the law will undoubtedly continue to evolve with respect to the searches of handheld digital devices, it is now beyond dispute that a cell phone and its contents attract a high expectation of privacy.
[46] While the various mistakes of the various officers, reflected in paragraph 25 above, do not reflect any bad faith on the part of those officers, they still - in my view, amount to carelessness that cumulatively amount to negligence, negligence that this court should not condone. As such, in my view, the seriousness of the Charter-infringing state conduct is at the higher end of the spectrum. In that regard, the comments of Rosenberg J.A. in R. v. Hosie, 1996 CanLII 450, at page 17, are worth repeating:
In the case before us, there was a serious violation involving the search of a home on the basis of an invalid search warrant. There was no urgency nor any need to act precipitously to prevent the loss of evidence. I would not characterize the defects in the warrant on their face and as revealed on the voir dire as inadvertent, trivial or of a technical nature. Finally, the seriousness of the violation is not mitigated by the good faith of the officer.
[47] I have already concluded that the conduct of the BPS was careless and negligent. In considering the seriousness of the state conduct, the comments of K.L. Campbell J. in R. v. Powell, 2017 ONSC 6482, at para. 70, are worth repeating:
Accordingly, inadvertent or minor violations of the Charter are at one end of the spectrum of potential police conduct, while wilful or reckless disregard of Charter rights is at the other end. Extenuating circumstances, such as the need to prevent the disappearance of evidence, may mitigate the seriousness of police misconduct. Good faith will also reduce the need for the court to disassociate itself from the police conduct. However, negligence or wilful blindness by the police cannot properly be viewed as good faith. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence. In addition, if the Charter-infringing police misconduct was part of a pattern of abuse, such conduct would support the exclusion of the evidence. See R. v. Grant, at paras. 74-75; R. v. Boussoulas, 2014 ONSC 5542, 320 C.R.R. (2d) 64 at paras. 157-158.
Even where the breach of the accused’s Charter rights is not the result of any “wilful disregard” for those rights, if the Charter violation constitutes a significant departure from the standard of conduct expected of police officers, such conduct cannot be condoned by the courts, and this aspect of the inquiry will lean in favour of the exclusion of the evidence. See R. v. Taylor, at para. 39.
[48] The comments of Hourigan J.A. in R. v. Dunkley, 2016 ONCA 597, at para. 56, equally apply in this situation:
There is no evidence of wilful misconduct on the part of the police officers; they had a reasonable suspicion sufficient to detain the appellant. That said, the officers were negligent in not waiting to obtain the warrant before beginning the search. Clearly, they understood this because after they began the search they stopped and made arrangements to obtain a warrant. This conduct cannot be categorized as inadvertent. It falls closer to the more serious end of the spectrum. Accordingly, it militates in favour of exclusion of the evidence.
Impact of the Breach on the Charter Protected Interests of the Accused
[49] While acknowledging that cell phones attract a high degree of privacy, the Crown argues that the information that was extracted from Jenkins’ cell phones was restricted to information arising out of communications involving alleged drug trafficking. In its written factum, the Crown argues that while the search of a cell phone can be a serious breach of an accused person’s Charter protected interest, in this case - because Jenkins was on parole with conditions not to possess more than one mobile communication, the impact on Jenkins’ Charter protected rights to privacy is “severely attenuated”. As such, the Crown argues that the admission of the contents of Jenkins’ cell phones would not send the message to the public that Charter rights are of little avail, nor would it bring the administration of justice into disrepute.
[50] As I have already indicated, the fact that Jenkins was on parole at the time of these alleged offences does not detract from his privacy interest in his cell phones. At its highest, Jenkins had agreed to provide the billing statement for his cell phone, a billing statement which would not have revealed, on its face, any of the information that was obtained as a result of the search conducted of his cell phones.
[51] The Crown argues that the actual search conducted by Forrest was limited to conversations involving Jenkins and alleged customers in connection with potential drug deals. As such, it is argued that the search was not a blanket search of his cell phones. While Forrest may have, in fact, limited his actual search of the cell phones, the fact still remains that a complete data dump search was conducted by Pelan, such that the police essentially had a complete duplicate of Jenkins’ cell phones. The Supreme Court of Canada observed in Fearon, at para. 78, that a search warrant does not give the police a licence to “scour” the accused’s cell phone “indiscriminately”. The Supreme Court of Canada went on in Fearon to note that “the search of the entire contents of a cell phone or download of its content is not permitted”.
[52] Viewed from the perspective of an accused who has had his or her entire contents downloaded onto a police computer, there has been a complete privacy breach with respect to the entirety of those contents even if the actual search is restricted to case-specific information as it was in this case.
[53] Section 8 of the Charter has a purpose, and that is to prevent unreasonable searches before they take place. The absence of a valid search warrant, when a search warrant is legally required, constitutes a “significant infringement” of an accused’s right to privacy. Where there is a high expectation of privacy, as there clearly is in a cell phone, there has been a significant intrusion into the privacy interest of an accused. As such, I reached the conclusion that there has been a significant impact on Jenkins’ Charter protected interest that weighs against admission of the evidence from the search of his cell phone.
Society’s Interest in the Adjudication on the Merits
[54] The Crown, quite rightly, argues that the evidence seized from Jenkins’ cell phones is real evidence that is directly relevant to the issue of whether or not he was trafficking in drugs. The Crown argues that society has a competing interest in seeing that this matter is tried on its merits, and that if the cell phone evidence is excluded the public may be deprived of a trial on the merits of what is a very serious charge. As the evidence from the cell phone search is reliable and important to the Crown’s case, this consideration weighs in favour of admitting the evidence.
[55] The importance of the evidence to the Crown’s case is, of course, a factor that this court must consider under this third aspect of the Grant enquiry. The Crown, however, concedes in this case, that if the court does exclude the evidence generated from the search of Jenkins’ cell phones, it will not completely “gut” the Crown’s case as the Crown will still have the circumstantial evidence from the surveillance evidence of the various police officers that lead up to Jenkins’ arrest on January 20, 2017. This is, therefore, not a case where to disallow the evidence will prevent the Crown from pursuing the charges against Mr Jenkins, a factor that this court is required to consider in the Grant analysis (see Grant at paras. 79-84).
[56] In dealing with the third part of the Grant analysis, I was referred to the following comments of Doherty J.A. in R. v. McGuffie, at paras. 62 and 63:
The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.
[57] In this case, I have come to the conclusion that under the first two inquiries, i.e. the seriousness of the Charter-infringing state conduct and the impact on the Charter protected interests of Jenkins, that society’s interest in an adjudication on the merits will seldom - if ever, tip the balance in favour of admissibility. This is particularly so in this case, in a situation where the Crown’s case will not die with the exclusion of the evidence from Jenkins’ cell phones.
[58] In the result, the evidence from the warrantless search of Jenkins’ cell phones is excluded.
Mr. Justice M.L. Edwards
Released: March 12, 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
NICHOLAS JENKINS
CELL PHONE SEARCH PRETRIAL RULING
Justice M.L. Edwards
Released: March 12, 2018