COURT FILE NO.: 14200/16
DATE: 20180410
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen Respondent
– and –
David Knight & Graham MacDonald Applicants
Paul T. Murray and Kristen Pollock, for the Crown
Victor Giourgas, for the Respondent, David Knight
Tyler T. Smith, for the Respondent, Graham MacDonald
HEARD: December 12, 2017
CHARTER SECTIONS 8 AND 24(2) APPLICATION
SOSNA J.:
INTRODUCTION
[1] The applicants, David Knight (“Knight”) and Graham MacDonald (“MacDonald”) (together, the “Applicants”), are charged with first degree murder, conspiracy to commit murder, and arson in relation to the death of Knight’s wife Carmela Knight (“Carmela”).
[2] It is alleged that Knight conspired with MacDonald to have Carmela murdered. It is alleged that on September 15, 2014, MacDonald murdered Carmela in her residence at 1164 Pebble Stone Crescent in Pickering, Ontario (the “Knight Home”). After the murder, it is alleged that MacDonald set fire to the garage where Carmela’s charred body was discovered.
[3] During the investigation culminating in Knight’s and MacDonald’s arrest on February 26, 2015, police sought and obtained several search warrants pursuant to s. 487 of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”). These warrants included production orders requiring that telecommunications providers deliver phone numbers and toll records related to Knight and MacDonald before, during, and after the homicide.
[4] The Applicants seek to exclude the evidence obtained in the warrants.
BACKGROUND
[5] On October 8, 2014, police obtained a “tower dump” production order (the “First Warrant”). This order authorized police to obtain data from four telecommunications providers specifically serving the homicide’s location—the Knight Home and the surrounding vicinity—and limited to September 15, 2014—the date of the murder.
[6] On November 20, 2014, police obtained another “tower dump” production order (the “Second Warrant”)—again, limited to the date of the murder—authorizing data collection from four telecommunications providers servicing the area of a hockey arena at 580 Finch Avenue West in North York, Ontario (the “Arena”). Knight advised police that he attended the Arena on the date and estimated time of Carmela’s murder.
[7] On January 31 and February 7, 2015, during a “Mr. Big” police investigation (outlined in my earlier reasons, R. v. Knight, 2018 ONSC 1846), MacDonald confessed to undercover officers (“UCOs”) that he murdered Carmela. He confessed to UCOs that he and Knight planned the murder together and in exchange for committing the murder, Knight would pay MacDonald $100,000 and provide him a job with his Florida construction company.
[8] To communicate with each other before, during, and after the murder, MacDonald advised the UCOs that he purchased two “burner” phones (the “Burners”). The Burners were registered under fictitious names and destroyed shortly after the murder. MacDonald gave the UCOs the Burners’ distinct phone numbers.
[9] On February 12, 2015, police obtained a further production order for the Burners’ toll records (the “Third Warrant”). The first telephone number, which Knight allegedly used (the “Knight Burner”), was activated in the Arena’s vicinity on September 15, 2014. The second telephone number, which MacDonald allegedly used (the “MacDonald Burner”), was activated in the Knight Home’s vicinity. The police determined that both numbers contacted one another seven times on September 15, 2014 between 4:44PM and 7:54PM; the date and estimated time of the murder.
[10] On February 26, 2015, police arrested Knight and MacDonald for murder, conspiracy to commit murder, and arson.
THE APPLICANTS’ POSITION
[11] The Applicants submit that police breached their Charter s. 8 right to be secure against unreasonable search and seizure, through the First and Second Warrants’ sheer scope and unbridled breadth.
[12] The Applicants also contend that the First and Second Warrants violated their s. 8 rights because police did not provide the issuing justice reasonable and probable grounds on which to grant them.
[13] The Applicants further submit that the Third Warrant could not have issued for want of reasonable grounds, once the information collected through the First and Second Warrants is excised from the information to obtain dated February 12, 2015, which sought the Burners’ toll records (the “February ITO”). Absent that information, police could not have discovered the existence of the Knight and MacDonald Burners, nor obtained any information regarding the Burners’ numbers, including their users’ geographic locations serviced by any particular tower.
[14] Lastly, the Applicants contend that the UCOs obtained MacDonald’s confessions in breach of the Charter’s s. 7, rendering them inadmissible. The confessions were incorporated into the February ITO. The Applicants argue that, absent the information about the Burners, the Third Warrant would not have issued.
THE CROWN’S POSITION
[15] The Crown denies any s. 8 breaches by issuance of the First and Second Warrants. The Crown also denies that subsequent call toll records were obtained in breach of a wanting warrant. The Crown seeks this application’s dismissal.
[16] In the alternative, if any breach is found, the Crown argues the evidence obtained should not be excluded pursuant to s. 24 (2) of the Charter.
THE LAW
[17] The relevant Charter sections read as follows:
Life, liberty and security of person
- Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Search or seizure
- Everyone has the right to be secure against unreasonable search or seizure.
Enforcement of guaranteed rights and freedoms
- (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Exclusion of evidence bringing administration of justice into disrepute
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
ISSUES
[18] The first issue is whether police breached the Applicants’ s. 8 rights after obtaining the First and Second Warrants that authorized the tower dumps.
[19] This first issue requires addressing two sub-issues:
a. What scope of search did the First and Second Warrants authorize?;
b. Did police have reasonable and probable grounds to collect the data authorized by the First and Second Warrants?
[20] The second issue is whether MacDonald’s confessions—if found inadmissible pursuant to s. 7—render inadmissible the toll and account data collected under the Third Warrant?
1. The section 8 issue
a. The searches’ scope
[21] Pursuant to the First Warrant, police sought and obtained all tower dump data from four telecommunications companies for a five-and-a-half hour period (3:30-9:00PM) taking place the date of the murder. Police gathered this data from 21 telecommunications towers in the Knight Home vicinity, and captured nearly 152,000 calls, texts, or data connections.
[22] Pursuant to the Second Warrant, police sought and obtained all tower dump data from four telecommunications companies during a four hour period (5:00-9:00PM) taking place the date of the murder. Police gathered this data from 12 towers in the Arena’s vicinity, and captured nearly 67,000 calls, texts, or data connections.
[23] The information obtained in both the above included the names and addresses of the originators and recipients of the call, text, or data connection. Other reports included the names, addresses, and service plans for thousands of customers whose cellular phones connected to one of the towers either as the originator or recipient when the cellular phone connected to the network via the tower. Some of the reports included activation dates.
[24] The tower records captured in the First and Second Warrants detailed approximately 220,000 calls, text, and data connections in total.
[25] The Applicants argue that the First and Second Warrants’ sheer scope and unbridled breadth—identifying records of all call, text, and data communications of users in the geographic areas of the Knight Home, and the Arena at the time of the murder—breached the Applicants’ s. 8 rights along with thousands of others. The Applicants seek exclusion pursuant to s. 24(2).
b. Reasonable and Probable Grounds
[26] The Applicants submit that the February ITO sworn in support of the First and Second Warrants did not provide reasonable and probable grounds from which a search warrant could issue.
[27] The Applicants contend that the only basis for issuing those tower dump warrants was the affiant’s general speculation that they may assist the police investigation. These warrants’ issuance therefore violates s. 8, absent reasonable and probable grounds. The Applicants seek to exclude the evidence obtained by both warrants pursuant to s. 24(2).
[28] The Applicants further submit that if the First and Second Warrants can be characterized as subfacially invalid, then the Third Warrant—for the Burners’ toll records—must also fail, since the unconstitutionally obtained evidence flowing from the tower dump warrants cannot provide informational basis for the subsequent toll records warrant.
[29] The Crown submits that reasonable and probable grounds do not involve a mathematical assessment of facts and circumstances; rather they involve a common sense, non-technical approach. It is necessarily a qualitative standard on which reasonable people can differ in some circumstances. The First Warrant’s ITO is 31 pages long. The Second Warrant’s ITO is 53 pages. Given the reasonable inferences that can be drawn, the Crown submits there was a credibly-based probability supporting the tower dump warrants’ issuance, and they were therefore constitutionally obtained.
c. Analysis
[30] Suffice it to say that the information acquired in the First and Second Warrants is extensive, capturing communication details involving untold thousands of callers, and in some cases acquiring detailed information like those callers’ activation dates, service plans, and addresses.
[31] In R. v. Mahmood, 2008 CanLII 51774 (ON SC), [2008] O.J. No. 3922 (Ont. S.C.), additional reasons [2009] O.J. No. 319—and later on appeal, 2011 ONCA 693—the court considered and found s. 8 violations occurring due to a tower dump production order’s sheer breadth and scope.
[32] In Mahmood, four accused were charged with conspiracy to commit robbery and possession of stolen property exceeding $5,000 arising out of a jewelry store robbery. Their identities were initially unknown. Police had no direct evidence of any cellular phone use or possession occurring during the robbery by anyone involved in it.
[33] Police sought and obtained tower dump production orders from telecommunications providers servicing the jewelry store’s vicinity on the date and at the time of the robbery. Police then obtained private records of and information about approximately 9,588 calls to and by 7,067 subscribers, including their names and addresses.
[34] Based on surveillance and further investigation, police obtained a second warrant for subscriber records to produce all cellular phone data for the accused. That data showed extensive communication between the parties six weeks before and on the date of the robbery. That data was cross referenced to the phone data obtained by the first tower dump warrant. Residential search warrants were executed and the stolen jewelry was found.
[35] Similar to the case at bar, the accused challenged the tower dump order’s admissibility, arguing that the seizure of data that included names and cellular phone records was an arbitrary, groundless, and wholesale invasion of their privacy rights and of thousands of others. It violated their s. 8 rights, and they sought exclusion of the evidence under s. 24(2).
[36] Also similar to this case, Mahmood’s accused submitted that, without the tower dump’s results, police had no reasonable and probable grounds to obtain the subsequent subscriber records; accordingly, they challenged their admissibility on grounds that the seizure of those records also violated their s. 8 rights. The accused submitted that those records also be excluded pursuant to s. 24(2).
[37] Justice Quigley in Mahmood held that “a seizure of many thousands of private records of persons not remotely suspected of being involved in the robbery” resulted in police casting a wide net and “systematically invad[ing] the s. 8 Charter rights of several thousand people, including these Applicants”: para. 95. He further found that the accused had a reasonable privacy expectation in the cellular phone data derived from the execution of the tower dump production order and the subscriber records warrant: para. 82. Applying s. 24(2) of the Charter, Quigley J. then excluded the tower dump records: para. 121.
[38] Finally, Quigley J. found that police obtained the subscriber records without reasonable and probable grounds and thus in breach of s. 8: para. 91. The court declined, however, to exclude the subscriber records under s. 24(2), holding that their exclusion would bring the administration of justice into disrepute to a far greater extent than the admission of that evidence at trial, considering their high relevance and probative value.
[39] On appeal, Watt J.A. held that, despite law enforcement’s breach of the appellant’s reasonable expectation of privacy via the tower dump records, that expectation of privacy is reduced given the isolation of customer name and location information from the biographical core of personal information, like intimate details of an individual’s lifestyle and personal choices: (C.A) paras. 98 & 131. These reasons apply to the matter at bar. (Justice Watt’s remaining s. 24(2) findings about the tower dump and subscriber records’ admissibility will be reviewed further below.)
[40] At bar, the affiant of the First Warrant’s ITO attested in the concluding paragraphs that the Knight Home would be unoccupied before Carmela’s arrival there after work. Rogers Home Security’s records revealed movement in the Knight Home before she indeed arrived. Moments before the 911 call reporting a fire in the garage, the security records noted activity at the Knight Home’s side entrance which suggested that someone left the residence at that time. This ITO stated the following:
If the person(s) who were at the residence during these time periods used a cell phone this will be found through these records. These phone numbers may provide the investigators with the phone number used by the murder(s) or person(s) who had direct knowledge of the murder of Carmela Knight.
[41] The affiant of the Second Warrant’s ITO attested in the concluding paragraphs that Knight reported his attendance at the Arena on the date and estimated time of the murder. It confirmed that the investigation revealed Knight’s use of multiple phones:
[Knight] has used multiple phones and it is possible that the investigators are unaware of all of [Knight]’s phone numbers. Through [the records sought by the production order] investigators will be able to determine if [Knight] was using a different phone number, other than what was already known....These records will assist the investigators in finding out [who Knight] may have been speaking to prior to and after the murder of [Carmela].
[42] As in Mahmood, the ITOs sworn in support of the First and Second Warrants did not provide reasonable and probable grounds from which a search warrant could issue. At the time of swearing both ITOs, police had no credible probative evidence that any unknown cellular phone was used by the perpetrator near the Knight Home. Police had no information that any person involved in Carmela’s death used a cell phone before, during, or after the murder and arson. Nor did police have similar credible evidence about Knight, let alone evidence that his or any other particular person’s phone records would provide evidence about the investigation.
[43] I find at best that the First Warrant’s ITO speculated that a cell phone may have been used by an individual(s) present in the Knight Home when the murder occurred. Further, it merely speculated/suspected that the phone numbers sought under the warrant may provide the investigators with phone numbers used by the perpetrators or individual(s) holding direct knowledge of Carmela’s murder.
[44] Similarly, the Second Warrant’s ITO speculated that, since Knight used multiple phones in the past, the tower dump would help determine if Knight used another phone other than those known to the police at the time of Carmela’s murder, and would further assist the investigation to determine who Knight was speaking to before and after the murder.
[45] I adopt Quigley J.’s observations in Mahmood at para. 91:
At its highest, the ‘facts’ set out in the ITO prepared in support of the Tower Dump Warrants amounted to little more than somewhat educated guesswork styled as an evidentiary foundation upon which the warrant could issue.
2. Section 24(2)
[46] Having found s. 8 breaches arising from both the scope of the data obtained pursuant to the First and Second Warrants and from their ITOs’ lack of reasonable and probable grounds for the warrants’ issuance, the resulting evidence’s admissibility requires s. 24(2) review.
[47] R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 provides the framework for assessing and balancing the effect of admitting evidence on society’s confidence in the justice system when the Charter is breached. There are three branches to the inquiry, as summarized in R. v. Dhillon, 2010 ONCA 582, [2010] O.J. No. 3749 at para. 41:
a. The seriousness of the Charter infringing state conduct (admission may send a message the justice system condones serious state conduct);
b. The impact of the breach on the Charter protected interests of the accused (admission may send the message that individual rights count for little);
c. Society’s interest in the adjudication of the case on its merits.
i. Seriousness of the Charter-infringing state conduct
[48] This first branch requires evaluating the Charter breach’s seriousness in terms of police action and whether the admission of the evidence would bring the administration of justice into disrepute. The more severe or deliberate the breach, the greater the need for the court to disassociate itself from that breach.
[49] The Applicants submit that the s. 8 breaches in the First and Second Warrants are serious when assessed individually and collectively: (1) because of the breadth and scope of the data released by their authorized tower dumps; and, (2) because the ITOs supporting both warrants lacked reasonable and probable grounds for their issuance.
[50] The Applicants submit that the tower dumps revealed extensive private information that included subscribers’ names and addresses, callers’ approximate geographic locations, the times and durations of specific calls, and the phone numbers dialed and received by thousands of account holders, from which the identity of the other party to the call could be ascertained through further investigation.
[51] The raw data generated from the tower dumps could be—and was in this matter—readily translated into more meaningful biographical information. The information obtained under the First and Second Warrants invaded not only the Applicants’ informational and personal privacy rights, but also the rights of thousands of other people. The vast amount of personal information seized significantly adds to the seriousness and impact of the Charter breach.
[52] The breach’s gravity is compounded by the lack of reasonable and probable grounds—at the time the ITOs were sworn—to believe that the homicide’s perpetrator(s), the Applicants, or thousands of other persons captured within the search’s ambit communicated with one another around the date of the murder.
[53] As reviewed above, a reasonable expectation of privacy indeed exists in telecommunications towers’ records, but such privacy is significantly reduced. In Mahmood’s appeal, the Court ultimately admitted the subscriber records evidence which relied on earlier cell tower warrants issued but lacking in reasonable and probable grounds: (C.A.) paras. 128-9.
[54] In the case at bar, police acted in good faith seeking and obtaining judicial authorization to acquire the telecommunications towers’ records and the later detailed Burners’ records. I find no flagrant disregard of Charter standards, nor any deliberate conduct by police contrary to those standards that would lead to undermining public confidence in the rule of law. Given that the conduct of the police was at the lowest end of seriousness, this branch favours the records’ inclusion.
ii. Impact on the Applicants’ Charter-protected interests
[55] This second branch focuses on how seriously the Charter breach impacted the Applicants’ interests. It calls for an evaluation of the extent to which the breach actually undermines the interest protected by the infringed rights. Where the violation is less egregious and the intrusion is less severe in privacy terms, reliable evidence should be admitted: Grant at paras. 76 & 111).
[56] The discoverability doctrine remains useful to assess the actual impact of any breach on the Applicants’ protected interests. Contrary to the Applicants’ submission that MacDonald’s confessions during the Mr. Big investigation were obtained in violation of s. 7, so their exclusion from the Third Warrant’s ITOs seeking the Burners’ toll records would have negated that warrant’s issuance, my earlier reasons cited above found that s. 7 had no application and MacDonald’s confessions were admissible.
[57] MacDonald’s confessions included the Burners’ distinct numbers. The Applicants’ contention that, absent the information obtained in the tower dumps, police would have been unable to discover the existence of those distinct numbers nor obtain any information relating to those numbers (including the users’ geographic location serviced by any particular telecommunications tower) is not supported by the evidence and this court’s findings. I find that the evidence obtained by the Third Warrant does not derive from any Charter violation.
[58] The discovery of the Burners’ call detail records was inevitable, given MacDonald’s confession; they would have been obtained regardless of the First or Second Warrants, and with no impact on the Applicants’ interests. Even had a minor breach in the First or Second Warrants occurred, the evidence would have been subsequently obtained from a fulsome investigation of the confession’s details. No connection was made between the Burners’ numbers as resulting from the First and Second Warrants, until MacDonald’s confession provided the context.
[59] For these reasons, this branch favours the evidence’s inclusion.
iii. Society’s Interest in Adjudication on the Merits.
[60] This matter involves the planned and deliberate murder for hire of a woman in her own home. The evidence obtained is highly reliable and highly probative. It demonstrates communication between the Applicants before, during, and after the murder. The communication’s documentary evidence was kept in the telecommunications providers’ ordinary course of business. The evidence is extremely important to the prosecution as direct evidence of the Applicants’ collusion during the murder’s commission.
[61] This is a heinous offense which cries out for adjudication on the merits. As Watt J.A. concluded in Mahmood at para. 138:
The evidence gathered is reliable and relevant to the proof of guilt. It assists, to confirm Malik, or with other evidence, to establish contemporaneous communications among the alleged participants in what is said to be a planned armed robbery. Its exclusion would tend to undermine the truth-seeking function of the criminal trial. This documentary evidence is real, largely impervious to cross-examination.
[62] All three branches of Grant’s analysis favour inclusion. The Applicants failed to meet their onus in s. 24(2) to establish that the evidence should be excluded. The application is dismissed.
The Honourable Mr. Justice Alexander Sosna
DATE RELEASED: April 10, 2018