COURT FILE NO.: CR-16-40000470
DATE: 20180306
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOEL ROBERTO
Applicant
A. MacPherson and K. Batoraska, for the Crown
K. Scott and C. Rudnicki, for the Applicant
HEARD: May 25, 2017
ruling on admissibility of cell-phone video
Ducharme J.
Overview of Application
[1] Mr. Roberto is charged with the first-degree murder of his son Jaelin Colley. He is co-accused with Jaelin’s mother, Ravyn Colley. He has brought an application to exclude the evidence of a video found on his cell phone based on a violation of his rights under s. 8 of the Charter to be secure against unreasonable search or seizure. In the further alternative, he submits that the video should not be admitted as its probative value is outweighed by its prejudicial effect. After outlining the relevant facts, I shall deal with these two arguments in turn.
Factual Context
[2] The video in question is 4 seconds long and was on Mr. Roberto’s iPhone. The time stamp on the video is 1:18 a.m. approximately 51 minutes prior to the time that Mr. Roberto called 9-1-1. The video shows Jaelin alive with the same injuries as observed by first responders. His mother is holding him by the chin and he is moving his arms in a manner that one of the pathologists suggests is consistent with neurological posturing, a behavior that can manifest itself in individuals when they are near death. Certainly, it is clear that Jaelin is gravely injured and is dying.
[3] On October 13, 2014, at 2:09 p.m., Mr. Roberto called 9-1-1 to report that his son was in physical distress after falling down some stairs but that he was still breathing. At 2:40 p.m., Mr. Roberto was arrested for failing to provide necessaries of life. At this time, P.C. Mayers conducted a pat down search of Mr. Roberto and his iPhone and a charger were seized along with other items and placed in a bag and transported to 32 Division.
[4] D.C. Wyard arrived at 32 Division at 7:35 a.m. and she was instructed to photograph the accused, to seize their clothing and to scrape their fingernails. At 10:06 a.m. she got a call from Det. Lioumanis who instructed her to seize the cell phones from the accused. Det. Lioumanis did not tell her to power the phone up, to see if the phone was unlocked or to search the phone. At approximately 10:17 a.m. she seized the phone from Mr. Roberto’s property bag. The screen was black so she hit the button and the screen lit up. The phone was unlocked and there was a picture of two children on the home screen.
[5] D.C. Wyard then hit the camera icon to see if there were other photos of the children. There was a matrix of photos and in the lower right-hand corner there was a thumbnail of a video that showed a picture of Jaelin’s face with the same injuries as she had observed when she had earlier looked at some photographs of Jaelin. She did not view the video or look into any other part of the phone. D.C. Wyard she did all of these things on her own initiative. She conceded that there was no pressing need to do this other than to ensure that the phone did not lock as this would make it difficult for the police to access it.
[6] D.C. Wyard testified that when she saw the photographs of the children that this gave her reasonable and probable grounds to search the phone. She said that she understood that the police could search a cell phone as part of a search incident to arrest in order to search for evidence relevant to the crime. On October 14, 2014, D. C. Wyard was not familiar with the decision of the Ontario Court of Appeal in R. v. Fearon.
[7] D.C. Wyard contacted Dt. Sgt. Gray who said that she would contact the tech crimes department of the MTPS. At 10:48 D.C. Wyard got a call from D.C. Adam Harker who advised her that she power up the phone. She then got a call from D.C. Choryguine who came to 32 Division and took the phone at 11:50 a.m.
[8] D.C. Choryguine took the phone to tech crimes and it was subsequently searched on October 21, 2014 pursuant to a warrant. The parties are agreed that if the evidence of D.C. Wyard is excluded that the information to obtain the search warrant for Mr. Roberto’s phone then there is no longer sufficient grounds for the warrant to issue with respect to the phone.
Section 8 – Unreasonable Search
[9] In R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621 the Supreme Court made it clear that the common law power to search incident to a lawful arrest permits the search of cell phones and similar devices found on the suspect. The Court held that prompt cell phone searches incident to arrest may serve important law enforcement objectives: they can assist police to identify and mitigate risks to public safety; locate firearms or stolen goods; identify accomplices; locate and preserve evidence; prevent suspects from evading or resisting law enforcement; locate the other perpetrators; warn officers of possible impending danger; and follow leads promptly.
[10] The Court held that four conditions must be met in order for the search of a cell phone or similar device incidental to arrest to comply with s. 8. First, the arrest must be lawful. Second, the search must be truly incidental to the arrest. This requirement should be strictly applied to permit searches that must be done promptly upon arrest in order to effectively serve the law enforcement purposes. In this context, those purposes are protecting the police, the accused or the public; preserving evidence; and, if the investigation will be stymied or significantly hampered absent the ability to promptly conduct the search, discovering evidence. Third, the nature and the extent of the search must be tailored to its purpose. In practice, this will mean that only recently sent or drafted emails, texts, photos and the call log will, generally, be available, although other searches may, in some circumstances, be justified. Finally, the police must take detailed notes of what they have examined on the device and how they examined it. The notes should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. The record-keeping requirement is important to the effectiveness of after-the-fact judicial review. It will also help police officers to focus on whether what they are doing in relation to the phone falls squarely within the parameters of a lawful search incident to arrest.
[11] At the time of the search, the Supreme Court of Canada had not decided R. v. Fearon, but it is the standard by which this search must be assessed. The first Fearon requirement is satisfied as the arrest of Mr. Roberto was lawful.
[12] The second Fearon requirement is that the search be incident to arrest. D.C. Wyard’s search of the phone occurred 7 hours and 37 minutes after Mr. Roberto’s arrest. This passage of time by itself does not mean that this cannot be a search incidental to arrest. As the Supreme Court stated in R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51 at para 24:
The temporal limits on search incident to arrest will also be derived from the same principles. There is no need to set a firm deadline on the amount of time that may elapse before the search can no longer said to be incidental to arrest. As a general rule, searches that are truly incidental to arrest will usually occur within a reasonable period of time after the arrest. A substantial delay does not mean that the search is automatically unlawful, but it may cause the court to draw an inference that the search is not sufficiently connected to the arrest. Naturally, the strength of the inference will depend on the length of the delay, and can be defeated by a reasonable explanation for the delay.
[13] The more problematic issue is whether D.C. Wyard’s actions actually served the law enforcement purposes outlined in Fearon. I do not think there is a problem with respect to her powering the phone on as this constituted a reasonable step to preserve evidence as she was concerned that the phone might revert to a locked status. The more problematic issue is her opening of the camera icon to discover whether it contained any relevant evidence. In Fearon at paragraph 80 the majority stated that:
The discovery of evidence, in the context of a cell phone search incident to arrest, will only be a valid law enforcement objective when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. Only in those types of situations does the law enforcement objective in relation to the discovery of evidence clearly outweigh the potentially significant intrusion on privacy.
[14] This sense of urgency is absent in this case. Once the cell phone was powered on and was unlocked, the police could have waited to get a search warrant to search the phone without any adverse impact on their investigation. Thus, I find the opening of the camera icon violated the second requirement in Fearon.
[15] The third requirement in Fearon that the extent of the search must be tailored to its purpose is satisfied in this case. While I find D.C. Wyard’s attempt to discover evidence was improper in the circumstances the minimal search she engaged in was tailored to this purpose.
[16] The fourth requirement in Fearon that the police keep careful records of the nature of their search was not done in this case.
[17] D.C. Wyard did not fully comply with the second and fourth conditions outlined in Fearon and it appears to me that she still does not understand the case as she wrongly seems to think it justifies a search of a phone in exigent circumstances. This means the search of the iPhone involved a breach of s. 8. While Fearon was not decided until later, the extent to which the law in this area was unsettled is a consideration for s. 24(2)
Section 24(2)
[18] The approach to s. 24(2) was reformulated by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.). At para. 71 of Grant the majority said the following:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
[19] I will consider each of the Grant factors in turn.
(1) The Seriousness of the Charter-Infringing State Conduct
[20] This first stage of the s. 24(2) analysis is explained at paras. 72 to 74 of Grant in the following terms:
The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.
This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.
State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.
[21] The Charter-infringing state conduct in this case flowed from D.C. Wyard’s search of Mr. Roberto’s iPhone. I find that D.C. Wyard did not deliberately set out to violate Mr. Roberto’s s. 8 rights. But at the same time, D.C. Wyard’s inadequate understanding of the law at the time relating to cell phone searches cannot be equated with good faith. But given the minor nature of this violation of s. 8, as will be discussed below, I find this branch of the Grant analysis favours the admission of the video at Mr. Roberto’s trial.
(2) The Impact of the Breach on the Charter-Protected Interests of the Accused
[22] This second stage of the s. 24(2) analysis is explained at paras. 76 to 77 of Grant in the following terms:
This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests.
[23] I find that the violation of s. 8 in this case involved only a minimal invasion of Mr. Roberto’s privacy. In this regard I note that at paragraph 54 of Fearon Justice Cromwell wrote:
First, while cell phone searches - especially searches of “smart phones”, which are the functional equivalent of computers - may constitute very significant intrusions of privacy, not every search is inevitably a significant intrusion. Suppose, for example, that in the course of the search in this case, the police had looked only at the unsent text message and the photo of the handgun. The invasion of privacy in those circumstances would, in my view, be minimal. So we must keep in mind that the real issue is the potentially broad invasion of privacy that may, but not inevitably will, result from law enforcement searches of cell phones. [Emphasis added.]
[24] In this case, all D.C. Wyard did was turn on the phone, observe its home screen and open the camera icon and note the icons contained therein. She did not open any of the photos or the video and she did not look at anything else on the phone. This clearly is a minimal intrusion into Mr. Roberto’s privacy interests. Consequently, I find that this branch of the Grant analysis favours the admission of the video at Mr. Roberto’s trial.
(3) Society’s Interest in the Adjudication of the Case on its Merits
[25] The third branch of the s. 24(2) analysis is the least complex and is explained in Grant at paras. 79 to 84:
Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law”: R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20. Thus the Court suggested in Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.
The concern for truth-seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained (see R. v. Wray, 1970 CanLII 2 (SCC), [1971] S.C.R. 272) is inconsistent with the Charter's affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence.
This said, public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused's interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.
The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must therefore be weighed against factors pointing to exclusion, in order to “balance the interests of truth with the integrity of the justice system”: Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 57, per Iacobucci J. The court must ask "whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial”: R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 47, per Doherty J.A.
The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. ... The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.
It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. ... In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus. As pointed out in Burlingham, 1995 CanLII 88 (SCC), [1995] 2 S.C.R. 206, the goals furthered by s. 24(2) “operate independently of the type of crime for which the individual stands accused” (para. 51). And as Lamer J. observed in Collins, “[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority” (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.
[26] In this case, it appears that Mr. Roberto shot this video at a time close to the death of Jaelin Colley. There is no suggestion that the evidence is unreliable. The video is highly relevant as it serves to demonstrate what Mr. Roberto and Ms. Colley were doing at this time. It also demonstrates what state Jaelin Colley was in before he died. It is also relevant to post-offence conduct as in the video it appears that Jaelin is in different clothes than when the first responders found him; his hair is dry when it is later seen to be wet and the video seems to be shot in the basement of the home when Jaelin was found in the living room on the main floor of the house. Finally, the video is important evidence with respect to the culpability of both accused. Jaelin is obviously in distress and the failure to seek immediate medical treatment for him and the decision to shoot this video instead and then wait some 51 minutes before calling 9-1-1 may be powerful evidence with respect to the intentions of both accused.
[27] I find that excluding this video would significantly impair the truth-seeking function of this trial. Thus, for all these reasons, I find that this branch of the Grant analysis favours the admission of the video at Mr. Roberto’s trial.
Conclusion re s. 24(2)
[28] For the foregoing reasons, while I have found a violation of s. 8 of the Charter was involved in the search of Mr. Roberto’s iPhone, I would not exclude the evidence of this video on that basis.
Probative Value vs. Prejudicial Effect
[29] The applicant submits that this video has a significant potential to inflame or mislead the jury. The applicant submits that this video “shocks the conscience of the observer” and when coupled with the evidence of Dr. Cunningham, the forensic pathologist, that the child in the video is dying it is highly inflammatory. As such, the video has a high potential to encourage the jury to engage in both moral and reasoning prejudice. As well, the applicant submits that the video has low probative value particularly considering the other evidence in the case. The applicant also submits that the video invites the jury to improperly use evidence of post-offence conduct.
[30] I can deal with these submissions relatively briefly. This video is not pleasant to watch but similarly other aspects of the evidence in this case are not pleasant. Any case involving the death of a child will be difficult for, not just the jury, but for everyone involved. This is even more true when the accused are alleged to have killed their own child by starving him and beating him. But this does not mean that otherwise probative, relevant evidence must be excluded. This video displays in graphic terms what the two accused saw some 51 minutes before Mr. Roberto called 9-1-1. It is powerful evidence of the state that Jaelin was in and what the accused saw at the time. It may well be powerful evidence of what Mr. Roberto and Ms. Colley were thinking and doing. I entirely reject the applicant’s submission that this evidence is not probative in light of the rest of the evidence available to the Crown. As for the concern about moral prejudice or reasoning prejudice these concerns can be addressed by my closing charge to the jury. Similarly, while I do not share the applicant’s concern about the video’s possible impact with respect to post-offence conduct, that can also be dealt with in my charge to the jury. For these reasons, I would not exclude the video on these grounds.
DUCHARME J.
Released: March 6, 2018
COURT FILE NO.: CR-16-40000470
DATE: 20180306
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JOEL ROBERTO
Applicant
Ruling on admissibility of cell-phone video
DUCHARME J.
Released: March 6, 2018