2018 ONSC 5670 CR 16-7200 ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• v. – COURTNEY SALMON

RULING ON CHARTER APPLICATION

BEFORE THE HONOURABLE JUSTICE J. R. MCCARTHY On August 20th, 2018, at BARRIE, Ontario

APPEARANCES: V. Puls Counsel for the Crown R. Gregor Counsel for C. Salmon

August 20th, 2018

RULING ON CHARTER APPLICATION Mccarthy, J: (Orally)

Overview

THE ACCUSED COURTNEY SALMON (“SALMON”) APPLIES UNDER SECTION 8 (S.8) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOM (THE “CHARTER”). THAT SECTION READS AS FOLLOWS:

Everyone has the right to be secure against unreasonable search or seizure.

[1] Salmon alleges that he was the victim of unreasonable search and seizure when police conducted a search of his residence at 322 Hansen Road North in Brampton (the “premises”) with the accompanying seizure of personal items; when police conducted a search incident to arrest of a Chevrolet rental vehicle bearing licence plate number BYZB117 (the “vehicle”) with accompanying seizure of personal items; and the search and extraction of data from certain electronic devices seized during the premises and vehicle search.

[2] Salmon stands charged on nine counts for offences including human trafficking and uttering threats. The complainant for all counts is referred to as “AB”.

[3] Salmon seeks an order excluding any evidence obtained in these searches pursuant to s. 24(2) of the Charter.

The Impugned Warrants

[4] As part of an ongoing investigation, Staff Sergeant Yan of the York Regional Police (“Sgt Yan”) instructed Detective Constable Warren Owen (the “affiant”) to prepare and swear four informations to obtain (ITOs) in support of four different search warrants.

[5] The first warrant sought on September 19, 2016, was for a search of Salmon’s residence (the “first warrant”). It was denied by a justice the following day.

[6] The second warrant was a telewarrant (“the telewarrant”) for a search of that same residence. It was sought during the evening hours of September 20, 2016 and was authorized.

[7] The third warrant, granted on December 16, 2016 (“the devices warrant”) authorized the search and extraction of data from the various electronic devices seized during the investigation. This included the iPhone seized during the search of the vehicle incident to arrest of September 20, 2016. (the “iPhone”).

[8] The fourth warrant, authorized on September 22, 2017, was an assistance order (the “assistance order”) directing Cellebrite Inc. (“Cellebrite”) to provide assistance to police in extracting data from the iPhone.

Salmon’s Position

[9] Salmon submits that the search incident to arrest and the three executed warrants were unlawful. Any seizure of property during the searches was equally unlawful. Salmon submits that the telewarrant was unlawfully obtained. The subsequently obtained devices warrant and assistance order do not serve to remedy the prior unlawful gathering of evidence.

[10] Salmon argues that there were insufficient grounds to justify the issuance of any of the warrants. The supporting ITOs failed to set out reasonable and probable grounds upon which an issuing justice could have authorized them. They contained misleading and unreliable information. The affiant failed to disclose relevant evidence. These deficiencies go to the core of the reasonable and probable grounds necessary to issue the warrants.

[11] Salmon also challenges the telewarrant’s validity, arguing that it was non-compliant with the requirements of s. 487.1 of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”). No basis existed for pursuing a telewarrant. It was not impracticable to appear before a justice. Police had done so earlier that day seeking a warrant under essentially the same facts and circumstances. That warrant had been denied; the police acted unreasonably in seeking a telewarrant in those circumstances.

[12] Further, no legal basis existed to seek or grant a night time entry warrant; Salmon was in custody and could not have been released on bail until the next day.

[13] Finally, the searches conducted under the devices warrant and the assistance order were unreasonable. The permitted time frame designated by those warrants had expired when the searches were conducted.

[14] Salmon contends that police conduct during the investigation as a whole and the manner of obtaining and executing the search warrants amount to a pattern of systemic disregard for his Charter rights. The appropriate remedy under s. 24(2) is to exclude any evidence obtained pursuant to any of the warrants, including any evidence from the iPhone.

The Crown’s Position

[15] The Crown does not intend to rely on any of the evidence extracted from the electronic devices seized during the search of the premises. It remains the Crown’s intention to introduce evidence solely from the iPhone which was seized in a lawful, reasonable and proportionate search incident to arrest and whose data was extracted pursuant to the validly obtained devices warrant and assistance order.

[16] The Crown argues that all of the warrants are presumptively valid. Salmon has failed to discharge his burden of establishing that there was no basis upon which the warrants could have issued. The devices warrant and the assistance order were executed reasonably and efficiently under the circumstances. The fact that the assistance order was acted upon outside the time frame on the order is irrelevant since an assistance order is not technically a warrant. The telewarrant and the night search were entirely justified. Accordingly, Salmon has not established any infringement of his s. 8 rights.

[17] If any s. 8 breach is established, however, Salmon has failed to establish that admitting the iPhone data into evidence would bring the administration of justice into disrepute under s. 24(2).

The Evidence

[18] Salmon was granted leave to cross-examine the affiant on his four ITOs. The court also heard the evidence of York Police Detective Constable Jeff McKercher (“DC McKercher”) and Sgt Yan.

DC McKercher

[19] DC McKercher assisted the human trafficking unit. On the morning of September 20, 2016, he was briefed by Sgt Yan and received information that Salmon was “arrestable”. DC McKercher’s objective that day was to locate Salmon at the premises. While police were observing the premises, Salmon drove away in the vehicle.

[20] DC McKercher followed the vehicle to a parking lot in Oakville. Considering this a safe location to take Salmon into custody, DC McKercher exited his police vehicle and advised Salmon he was under arrest.

[21] After turning Salmon over to another officer, DC McKercher made a search of the vehicle and photographed the items he had found inside of it. DC McKercher considered this a search incident to arrest, with the twin goals of ensuring both officer and public safety and obtaining evidence of the offences. He found the iPhone on the front dashboard. He discovered business cards and a laptop computer with a carrying bag. These items were seized and taken to a property locker. The photographs of both the vehicle and the non-seized items (bags of clothing, condoms, make-up, a curling iron, and Advil) were not preserved as evidence.

[22] I found DC McKercher credible and his testimony reliable. While conceding that the iPhone could have been used for any purpose, he expressed the belief that it could also be used in committing the offences in question, for example accessing websites associated with prostitution like www.backpage.com (“Backpage”). He applied the same rationale to the laptop. At the time of the arrest and vehicle search, DC McKercher had certain information about Salmon from his profile sheet, but could not recall when the alleged offences had taken place.

Sergeant Yan

[23] I found Sgt Yan credible. He led the briefing of the surveillance and arrest team on the morning of the search. The team’s objectives on September 20, 2016 were to monitor Salmon’s movements, arrest him, and seek a search warrant for the premises.

[24] At the time of that morning’s briefing, Sgt Yan remained unaware of the status of the first warrant. Sgt Yan learned later that day that the first warrant had been denied on the basis that there were insufficient grounds to believe that the enumerated items it listed would be found at the premises.

[25] When he learned that Salmon was in custody, Sgt Yan directed that the vehicle search be “treated like a search warrant.” By this, he meant that photographs should be taken both before and after the physical search and—as a common law search incident to arrest—that its scope should be limited to locating weapons and evidence of the offence. Sgt Yan was concerned that the condition of the rental vehicle should be documented both before and after the search.

[26] Sgt Yan updated the affiant about what had been seized from the vehicle. He also informed the affiant that the first warrant had been denied.

[27] In Sgt Yan’s experience, cellphones are routinely used in human trafficking: as a means of communication between the pimp and the sex worker; as a means to preserve and display information; and to retain contact numbers for clients.

[28] Sgt Yan could not explain why Salmon was not arrested when he was first spotted outside of his residence that morning; nor could Sgt Yan recall the exact time when he learned that the first warrant had been denied. Upon learning of the denial, however, Sgt Yan instructed the affiant to keep working on the ITO. The direction taken from that point was towards seeking the telewarrant.

[29] The affiant updated the ITO for the telewarrant to include Salmon’s arrest and a list of the items seized in the vehicle search. The telewarrant was submitted for consideration at 7:50 pm on September 20. Unlike the first warrant, the ITO for the telewarrant did not seek authorization to seize any electronic devices.

[30] The execution team entered the residence at 10:55 pm, and left at 11:31 pm. Sgt Yan’s decision to seize the electronic items found there was taken under s. 489 of the Code. He understood that the first warrant had likely been denied because there was an insufficient basis to believe that the listed items would be found at the residence. Sgt Yan conceded that AB provided no evidence about any of the following:

a. that Salmon used the electronic devices; b. that the electronic devices were used to commit the offence; c. who had purchased the electronic the devices; or, d. who owned the electronic devices.

[31] In Sgt Yan’s view, the seizure of those electronic devices was no fishing expedition—these were communication devices which could both access the Backpage site and send and receive messages.

The Affiant

[32] The affiant was tasked with preparing the first ITO on September 16, 2016. The affiant understood that AB had last seen Salmon in April 2016.

[33] Although Appendix A of the first ITO sworn September 19, 2016 lists only a “cellphone”, the affiant intended that all electronic devices should be seized. The affiant believed that the cellphone would contain evidence of the offences: messages, contact names, and other information. The affiant based this belief on AB’s description of the means of communication between her and Salmon and how he helped her create Backpage advertisements. The affiant had no information to confirm that any cellphone Salmon owned or possessed in September 2016 would have been the one he used during the commission of the alleged offences months before.

[34] In none of the ITOs does the affiant point out that five months had passed since AB and Salmon had last been in contact. Nevertheless, police had formed the belief that Salmon maintained a residence at the premises. Police knew that AB had attended the premises and had listed some of the personal items that Salmon kept with him. Based on AB’s description of the premises, the affiant set out his belief that the items sought would be found in “the first room on the left after entering the garage door and ascending a few steps”.

[35] The affiant learned that the first warrant had been denied at approximately 12:15 pm on September 20. He then proceeded to pursue the telewarrant under s. 487.1(4) of the Code. The affiant was advised that Salmon was in custody at 2:42 pm. Because he learned that a cellphone was found in the vehicle during the search incident to arrest, the affiant omitted cellphones from the list of items to be searched for. The affiant updated his ITO with the new information: that Salmon was in custody; that certain items had been seized during the vehicle search; that the remaining items to be searched for were not discovered during the vehicle search; and that through observations made that day, Salmon had been positively linked to the premises. The affiant believed that these updates constituted a substantial change in the chronology of events.

[36] The affiant neglected to provide reasons why it was impracticable to appear before a justice. The affiant believed that a telewarrant was appropriate partly because Salmon’s girlfriend Courtenay had been released from custody. Even though Peel Regional Police were not going to allow Courtenay to enter the residence, the affiant was nonetheless concerned that evidence at the premises could be compromised.

[37] In December 2016, the affiant was tasked with obtaining the devices warrant. Although police were seeking specific information to corroborate AB’s statement from several months before, the affiant’s Appendix B sought only the broadly worded “any data” and set out no time parameters. The affiant agreed that his wording was not ideal; obtaining such a broad authorization would give police limitless access to data on those electronic devices.

[38] At paragraph 17 of that devices warrant, the affiant deposed that a Samsung Galaxy tablet was seized during the search incident to arrest. At paragraph 18, the affiant stated that the authorized telewarrant had included electronic devices. Both of these statements were inaccurate. The affiant conceded that it would have been significant for the issuing judge to understand that no previous authorization was given to seize these electronic devices. The electronic devices named in the devices warrant were taken to the Cyber Crime/Data Recovery Unit for analysis. These devices were examined between January 18 and 20, 2017 during which time it was discovered that the iPhone was locked.

[39] The affiant sought the assistance order through a further ITO dated September 22, 2017. In that ITO, the affiant proposed that Cellebrite be permitted to provide certain unlocking services as described in Appendix “A” thereto. The affiant requested 30 days to facilitate analysis of the locked iPhone. Cellebrite was expected to complete its work by October 21, 2017. Cellebrite performed this function on October 26, 2017.

[40] In the ITO for the assistance order, the affiant repeated his previous misstatement that a Samsung tablet was seized during the search incident to arrest. When referring to the previous premises warrant, he failed to mention that it was specifically a telewarrant; he again misstated that the telewarrant had authorized the seizure of electronic devices.

[41] I found the affiant generally credible and his evidence to be reliable. He was candid and did not shy away from admitting that his ITOs contained some errors and minor misstatements. The affiant was not defensive or combative during cross-examination. I find that he understood his duties and obligations as an affiant. I find that he did provide full, frank and fair disclosure in his ITOs.

Analysis

(A) Search Incident to Arrest

[42] I find that the iPhone was seized from the vehicle during a lawful search incident to arrest on September 20, 2016.

[43] A vehicle may be searched incident to arrest with the valid objective of obtaining evidence which can be used in support of the identified charges. All of the prerequisites set out in R. v. Caslake, [1998] 1 S.C.R. 51 were met to justify this search incident to arrest. DC McKercher had a reasonable basis upon which to the search the vehicle and seize the iPhone. At the morning briefing on the day of the arrest, DC McKercher gained an understanding of the charges, the nature of the investigation, Salmon’s profile, and his history of firearms and weapons possession.

[44] I accept that DC McKercher held a genuine belief that the iPhone might contain evidence of the offences. I find that his belief was an objectively reasonable one: an iPhone is a modern and common means of communication which is used to access, download, display, post and store information. It is entirely logical and foreseeable that an iPhone would contain evidence of the offences in question.

[45] I find no malice on the part of police in effecting the arrest and conducting the search. DC McKercher was tasked with performing the arrest well before it was learned that the first warrant had been denied. He could not explain why an arrest was not directed earlier that day at the premises; but he was not the officer in charge. He simply followed Salmon to a parking lot where he judged it safe to make an arrest. I find that he understood both the charges and his authority to conduct a reasonable and proportionate search of the vehicle for reasons of safety and to uncover evidence of the offences. I am unable to find that Sgt Yan’s direction to treat the situation “like a search warrant” meant seizing everything in sight: I am satisfied that public and officer safety and a search for items that might realistically serve as evidence of the offences were the sole factors motivating police. I find that police acted in good faith and used their authority purposefully, responsibly, and carefully.

[46] Finally, I find that the search was conducted reasonably. Police took photographs of the vehicle and the non-seized items. I find that Salmon could not have maintained even a modest expectation of privacy given that he was operating a rental vehicle. No personal property was lost or destroyed. Police conducted the search within 30 to 40 minutes.

[47] The photographs missing from the evidence do not dissuade me from these findings. DC McKercher was up front and candid about this failure to preserve that evidence. I am not able to find any mal fides or bad faith on the part of the police. Nor am I prepared to speculate or infer that the photographs would have revealed something inconsistent or contrary to what DC McKercher described during his testimony.

(B) The Telewarrant

[48] I am unable to find that the method, conduct or manner by which police obtained the telewarrant infringed Salmon’s Charter rights. Rather, I find that once police learned of the denial of the first warrant, they responded promptly, properly and responsibly to regroup, reassess and pursue a telewarrant.

[49] I would not infer that the police intended to delay the investigation process so that the telewarrant route could be used as a path of least resistance. Part of the plan for September 20 was to conduct surveillance and arrest Salmon. The denial of the first warrant did nothing to alter that course. The affiant learned of the denial within about twenty minutes of Sgt Yan’s receipt of that information. That was not an unreasonable delay: it was not until 2:42 pm that the affiant first learned of Salmon’s arrest and the results yielded by the vehicle search. That important information was properly incorporated into the ITO in support of the telewarrant.

[50] A telewarrant may be sought under s. 184.3(1) of the Code where it is impracticable in the circumstances for the applicant to appear personally before a judge. “Impracticable” in this context is a relatively low bar which imports a large measure of practicality and common sense. It requires that personal attendance before a judge be more than just inconvenient for the affiant. Personal attendance need not be impossible; it must be very difficult or not practical: see R. v. McKenzie, 2016 ONSC 245, [2016] O.J. No. 294 at paras. 20-21. In the case at bar, I find that seeking a telewarrant authorization was the most practicable option given the new developments, the time of day and the need to update the ITO with the events and results of the day’s investigation, arrest and searches. The telewarrant was submitted at 8:17 pm, and authorized at 9:35 pm. It was acted upon promptly once issued.

[51] The affiant did omit to set out the specific reasons why it was impracticable to appear before a justice. This constituted a failure to comply with subsection 182.3(2) of the Code. I am unable to find, however, that this constituted a Charter infringement in the circumstances of this case. Viewed in context and given my above findings, the telewarrant was the most practical and common sense path to pursue. As well, it lay within the power of the issuing justice to reject the telewarrant on the basis that the explanation called for in the Code subsection had not been provided. The issuing justice must be presumed to have known the law and to have been satisfied that the basis for the request was inherent in the materials he/she reviewed.

(C) The Premises Search

[52] I find no Charter breach in the police’s decision to seize electronic devices during the premises search. I am not prepared to infer that, in using the powers afforded to them under s. 489.1 of the Code, police were attempting to circumvent the previously denied first warrant.

[53] I accept the affiant’s explanation that he may have omitted the electronic devices from the telewarrant authorization because certain electronic devices had already been seized in the search incident to arrest. It may also be that he simply omitted those devices due to oversight. Either way, the seizure of those devices at the premises was legally permissible under the s. 489.1.

[54] I am satisfied that Sgt Yan turned his mind to the connection between the charges and the electronic devices, and formed a belief that those devices might yield evidence in respect of the charges in question. Again, I find this belief to have been reasonable: it was entirely foreseeable that electronic devices like laptops, cellphones, and tablets—capable of storing, posting, and exchanging communication—would contain evidence of human trafficking crimes. This was no fishing expedition. Police had information that both Salmon and AB had been inside the premises; that they had communicated with each other using electronic devices; and that Salmon had assisted AB in setting up Backpage advertisements. AB had provided a precise description of the room occupied by Salmon. Police had located Salmon outside the residence the very day of the premises search; it was entirely logical that electronic devices found at the residence would belong to Salmon and would contain evidence of the offences in question.

(D) The Presumptively Valid Warrants

[55] The warranted searches of the premises and the electronic devices are presumptively valid. Salmon bears the onus of demonstrating that his s. 8 rights were breached.

[56] Section 487 warrants can be issued if the justice is satisfied that reasonable grounds exist to believe: (1) that an offence was committed; (2) things to be seized are in an identified building, receptacle, or place at the time the warrant is being issued; (3) the things to be seized have a physical existence; and, (4) the things to be seized will either afford evidence regarding the commission of the offence, or reveal the whereabouts of the person believed to have committed the offence, or are offence related property.

[57] The determination to make on this application is whether the ITOs contain any basis upon which the issuing justice could have granted the warrants. As the Supreme Court of Canada explained in R. v. Garofoli, [1990] 2 S.C.R. 1421 at para. 68:

If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[58] The reviewing court must make its assessment based upon the record, excised of erroneous and misleading sections and amplified by relevant evidence not properly disclosed in good faith. The reviewing judge must then determine if the statutory conditions for the authorization continue on the basis of the sufficient independently verifiable information which was not affected by the errors and inaccuracies. The applicant bears the burden of displacing the presumption of the authorization’s facial validity: see R. v. Crevier, 2015 ONCA 619, [2015] O.J. No. 5109 at para. 74; R. v. Morelli, [2010] 1 S.C.R. 253, 2010 SCC 8 at paras. 41 and 44.

[59] The legal obligation on anyone seeking an authorization is to provide full, frank, and fair disclosure of material facts. An ITO need not, however, include every minute detail of investigation: see R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65 at para. 46.

[60] While a material misrepresentation, or a deliberate error or omission is never acceptable, ITOs are not expected to be entirely error-free. Courts should consider the nature of the errors and their underlying purpose: see R. v. Pham, [2009] O.J. No. 4689 (Ont. S.C.) at para. 86.

[61] The ITOs in this case certainly contained some problems:

a. the affiant misstated that the telewarrant authorized the seizure of electronic devices; b. the affiant did not specify that alleged offences in question took place five months before the date the warrants were first sought; c. the affiant overstated AB’s evidence of Salmon’s cellphone use—AB simply advised police that Salmon had taught her how to post Backpage ads, whereas the ITOs for the telewarrant and devices warrant suggest that Salmon was himself posting ads on that website; d. the devices warrant and the assistance order suggest that a Samsung Galaxy tablet was seized during the search incident to arrest when in fact that tablet was seized in the premises search without specific authorization; e. the affiant failed to limit the scope of his proposed devices search to data that might serve as evidence of the specific crimes—ideally he should have limited his request to the dates on which it was suggested that Salmon was involved in criminal behaviour.

[62] I am not persuaded that the excised and amplified record would result in insufficient grounds upon which a justice could issue a warrant. There remains persuasive and reliable evidence that there were reasonable and probable grounds to believe that offences had been committed, that the things being sought would be in the place or thing sought to be searched (for the iPhone, some record of communication between Salmon and AB) and that the communication would serve as evidence of the crimes in question. Even taking into account the misstatements and errors which need to be excised and the omissions which need to be considered, the following is undeniably clear: that AB had reported to police the nature and extent of her relationship with Salmon, the manner in which the parties communicated and a general idea of how electronic devices were used to post Backpage ads. Police had determined that Salmon maintained a residence at the premises. Once the electronic devices and the iPhone were seized from a vehicle or from a residence occupied or used by Salmon, the conclusion became irresistible that the seized electronic devices had been used in the commission of offences and that data from those devices would yield evidence of those offences.

[63] Salmon’s s. 8 rights were not infringed by either the content of the ITOs or by the authorizations and warrants issued on the strength of those ITOs.

(E) Systemic Denial of s. 8 Rights

[64] I am not persuaded that police conduct during the investigation as a whole amounted to a systemic denial of any s. 8 Charter rights.

[65] First, I am not persuaded that the arrest in the parking lot was unreasonable or unwarranted. An earlier arrest could have been effected at the premises, but this does not render unreasonable the character and location of the actual arrest. I find that the arrest was measured, minimally intrusive, effective, and reasonable.

[66] Second, I find that the decision to seek a telewarrant was entirely reasonable and justified when viewed in the context of the fluid and dynamic events unfolding on the day of Salmon’s arrest. I am not prepared to find or infer any element of delay, prevarication, subterfuge, or deceit on the part of police. Nor do I find that the failure of the affiant to set out the reasons why it was impracticable to appear before a justice was deliberate, designed to mislead or to avoid having to appear before a justice.

[67] Third, I am not persuaded that the failure of the affiant to specify parameters for searching internal data in the devices warrant was unreasonable. The dates on which the alleged offences took place are clearly set out in the description of the charges; the authorizing justice would have fully understood the background upon which the requested authorization was being made. As well, the type of data being sought was to include ownership information, contacts, emails, call logs, text messaging, text based communications applications, photographs and web based history. It was not unreasonable to request a search under these sub-categories; each and every one of them could reasonably be seen as a location on an iPhone for evidence of these types of offences.

[68] Fourth, I do not find that the night time entry into the premises was unreasonable or unwarranted. There was a sufficient basis upon which a night time entry could be authorized and justified. The police had a legitimate concern about potential destruction of evidence and a legitimate concern that Salmon, who had a record of weapons possession, might be released the next day and be looking to return to his residence. Also, conducting night time entry was less intrusive than keeping Courtenay out of the apartment while a warrant was executed during daytime hours.

[69] Fifth, I find that the affiant’s misstatements and errors were committed in good faith. He prepared the ITOs in a thorough, focused, and measured way. I am not prepared to find or infer an intention to mislead. I find that the majority of misstatements are cosmetic in nature: the fact that a Samsung tablet was found at the premises as opposed to in a vehicle hardly matters in the context of this case since the item was seized during a fluid investigation in which the premises and vehicle searched occurred within hours of each other and in spaces both occupied or controlled by Salmon. Also, the misstatement that the seizure of the electronic devices was authorized by the telewarrant is of little significance; Sgt Yan’s seizure of the devices during the telewarranted search of the premises was both objectively reasonable and permissible under a provision of the Code. Police had lawfully seized the electronic devices; by which lawful means this had occurred was irrelevant to whether the devices warrant and assistance order should have issued.

Finally, where the affiant repeated a mistake or misstatement, I find that he did so inadvertently while cutting and pasting similar mistakes from previous ITOs. It is understandable that a small error contained in one ITO would carry over into a subsequent one and that such an error would go as unnoticed in a subsequent version of an ITO as it had in the one in which the original error was first made.

(F) The Execution of the Devices Warrant and Assistance Order Outside of the Authorized Time

[70] There is no doubt that the execution of the devices warrant and the assistance order took place outside the strict time periods granted by the authorizing justice. The Crown argues that the assistance order of September 2017 is not itself a warrant and did not form part of the devices warrant.

[71] Section 487.02 of the Code provides authority for an assistance order respecting an authorization already granted. It reads as follows:

Assistance order

487.02 If an authorization is given under section 184.2, 184.3, 186 or 188 or a warrant is issued under this Act, the judge or justice who gives the authorization or issues the warrant may order a person to provide assistance, if the person’s assistance may reasonably be considered to be required to give effect to the authorization or warrant.

[72] The Crown contends that the wording of this section makes it clear that an assistance order is not a warrant, but rather a discrete and distinct order that allows a third party to lend assistance for the carrying out of a warrant.

[73] In the absence of authority on the point, I am not persuaded by the Crown’s argument. First, an assistance order by its very nature is part of a search authorization; it is directly connected to a warrant or authorization previously given and its sole purpose is to “give effect” to that authorization or warrant.

[74] Second, an assistance order is equally as intrusive as a warrant or authorization, since it involves a third party gaining access to the accused’s personal information.

[75] Third, the fact that an assistance order is granted with a window of time during which it must be carried out renders it akin to a warrant. If it was meant to be a limitless and open-ended order, there would be no time frame placed on it.

[76] There was nothing in the evidence to explain why the devices warrant and assistance order were acted on outside the prescribed time periods. It would have been open to police faced with the pending expiration of an authorization period to seek a fresh judicial authorization or assistance order. It appears that police simply failed to act on the authorizations in a timely and responsive manner.

[77] I am persuaded as was my brother Conlan J in R. v. D’Souza, 2016 ONSC 5855, [2016] O.J. No. 4995 that the police decision to search the iPhone and give effect to the assistance order outside of the authorized time period constituted an unreasonable search and a violation of the subject’s s. 8 rights. And, as in D’Souza, I would distinguish R. v. Nurse, 2014 ONSC 1779, [2014] O.J. No. 5004. In that latter case, the face of the warrant indicated an extraordinarily short time period; the actual search commenced within the prescribed time, and the face of the documents created some ambiguity about whether the authorized search period was intended to relate to the search of the data itself. None of these factors are present at bar.

[78] I find that the police failure to search the iPhone and ensure that the assistance order was carried out within the prescribed time led to an unreasonable search of Salmon’s iPhone and a breach of his s. 8 rights.

S. 24(2) Analysis

[79] Due to my finding above that an unreasonable search occurred of Salmon’s iPhone, I must make a section 24(2) analysis regarding the evidence derived from that search. Also, for the sake of completeness and in the event I am wrong in my findings that the balance of the searches and seizures did not infringe Salmon’s Charter rights, I will conduct a separate s. 24(2) analysis. I will engage in the latter exercise first.

[80] For the following reasons, I have determined that the evidence extracted from Salmon’s iPhone should be admissible at trial.

[81] First, any breaches of Salmon’s rights were not serious and certainly fall at the minor end of the spectrum. The search of Salmon’s vehicle, although warrantless, was done in good faith; it was quick, reasonable, and focused. Salmon’s expectation of privacy could not have been very high given that he was in possession of a rental vehicle. The items seized could all be reasonably considered to have contained probative evidence of the charges in question. I am unable to find any mal fides, unreasonable behaviour or any systemic flouting of Salmon’s s. 8 rights.

[82] Second, the omissions, misstatements, and irregularities in the ITOs were clearly not intended to deceive, misinform, or misdirect; the fact that the Samsung tablet was seized on the strength of s. 489.01 of the Code during a warranted search of the residence rather than during the search incident to arrest does not change the fact that the tablet was seized as part of a fluid and dynamic investigation during which Sgt Yan made a decision based on his honest and reasonable belief that the devices might contain relevant and probative evidence.

[83] Third, I find that the affiant’s misstatement in support of the devices warrant that the electronic devices had formed part of the telewarrant is wholly immaterial: those devices—including the iPhone—were already in the hands of police via legal means when the devices warrant was sought. In my view, it would hardly have mattered to any justice by what legal means the police took possession of the property; what mattered was whether there was reasonable and probable grounds to believe that the devices would contain probative evidence. The simple repeating of a misstatement on that issue constitutes a lack of attention to detail, not a serious Charter breach.

[84] Fourth, if I am wrong that the failure to explain why the attendance before a justice was impractical does not constitute a Charter breach in and of itself, then I find it constituted a mere technical irregularity. I am satisfied that police had proper grounds to seek a telewarrant as it would have been impracticable to wait until the next day to seek a regular warrant. The police had genuine and compelling reasons to execute the premises search before evidence within the residence could be compromised. It was also very much open to the justice to reject the authorization for the telewarrant on the grounds that the request did not strictly comply with the Code; the justice chose to grant it.

[85] Fifth, it is certainly understandable that the telewarrant did not specifically seek electronic devices. The affiant explained this to the court’s satisfaction: having been apprised that several electronic devices were seized in the vehicle search, the focus shifted back to the balance of the specific items listed in the first warrant which had not been found to date. I see nothing deceptive or misleading on the part of the police.

[86] Finally, some measure of proportionality is called for in the case at bar. The Crown does not seek to introduce any evidence derived from the electronic devices seized during the telewarranted search of the premises. Rather, we are concerned here only with the data extracted from the iPhone which I have found to have been lawfully seized during a justified and reasonable search of a vehicle incident to arrest. I do not see how it would be fair, reasonable or proportionate to exclude evidence recovered from the lawfully seized iPhone when that seizure took place outside of the scope of a telewarrant, even if that telewarrant was unlawful. Put another way, I do not see how it would bring the administration of justice into disrepute under s. 24(2) to afford treatment to evidence which was lawfully obtained which is distinct from evidence which was unlawfully obtained simply because the two categories of evidence were gathered during the same investigation.

The Failure to Search within the Prescribed Timeframe

Seriousness of the Charter-infringing State Conduct

[87] I classify the infringing state conduct here as minor or inadvertent.

[88] First, the devices warrant and assistance order were acted upon just outside of the respective prescribed time frames. There was no wanton, egregious or excessive over-holding. The iPhone remained in the possession of police from the date of its seizure until the date the devices warrant was granted. Once the affiant discovered that the iPhone was locked, he sought assistance from one source only. There is no evidence that police were careless, flippant, or irresponsible in handling the iPhone or that it was placed in unreliable or incompetent hands.

[89] Second, Appendix A to the assistance order contained practical, limited and responsible terms and conditions. The relevant data sought was identified with as much specificity as necessary; the relevant charges facing Salmon were set out accurately and in sufficient detail; and the proposed order was thoughtful and specific in directing Cellebrite to bypass security features, access, extract, and decrypt the iPhone’s contents before returning it to police.

[90] Third, there is no indication that the police went beyond that which was authorized in the devices warrant. In January 2017, the affiant inspected the device and determined that it was locked. He did not tamper with or compromise the device. He did not subject it to anything beyond a cursory inspection.

[91] Fourth, had police sought a fresh judicial authorization or assistance order, I cannot imagine a justice declining such a request. This is not a situation where the evidentiary landscape had changed or where the iPhone was used or tampered with to Salmon’s prejudice while it remained in police possession.

The Impact of the Breaches on Salmon’s Charter-Protected Interests

[92] There is no evidence that any serious impact on the accused’s Charter rights occurred. There is no suggestion that he asked for, was entitled to or would have received the iPhone back while it was in the police locker. As I stated above, there cannot have been a high expectation of privacy in an iPhone. Postings, messages, texts and emails are capable of being preserved, archived, forwarded, printed, and otherwise disseminated by third parties. The identity of the owner of electronic devices is readily ascertainable. The iPhone was not destroyed or compromised in any way.

Society’s Interest in Truth-Seeking and Adjudication of the Case on its Merits

[93] Society holds an interest in the proper adjudication of this case. Human trafficking is a despicable crime which has no place in a peaceful and law abiding society. The data extracted from the iPhone contains text messages exchanged between Salmon and AB during the time period when the alleged offences took place. This will undoubtedly serve as probative, reliable, and relevant evidence which will form an integral part of the Crown’s case and will assist the trier in determining whether the charges brought against Salmon have been proven.

[94] I conclude that the administration of justice would not be brought into disrepute by the admission of the extracted data from the iPhone.

[95] For the foregoing reasons, I would dismiss this application. The Crown is permitted to adduce evidence of the iPhone and the data extracted from it at the trial of this matter.

FORM 2 Certificate of Transcript Evidence Act, Subsection 5(2)

I, Cathy Knelsen, certify that this document is a true and accurate transcript of the recording of R. v. Salmon made in the Ontario Superior Court of Justice, held at 75 Mulcaster Street, Barrie, Ontario, taken from Recording No. 3811-15-20180820-085401 which has been certified in Form 1.

October 21st, 2018

Cathy Knelsen, CCR/ACT cathytheartist@sympatico.ca