COURT FILE NO.: CR-17-002740
DATE: 20190424
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GEORGE OTTO
Defendant
Geoffrey Roy and Amanda Hauk, for the Public Prosecution Service of Canada
Daniel Stein, for the Defendant
HEARD: February 12, 13, 14 and 19, 2019
RULING ON CHARTER SECTION 8 APPLICATION
DI LUCA J.:
[1] Dr. George Otto is charged with trafficking in fentanyl and possession of fentanyl for the purpose of trafficking. He has brought a number of pre-trial motions seeking the exclusion of various items of evidence. These Reasons address a Garofoli challenge to various search warrants, as well as a challenge to the manner of search of certain electronic devices that were seized by police.
[2] During the hearing of the motion, I granted the applicant leave to cross-examine the affiant on some limited issues. At the request of the Crown, I also engaged in a “Step 6” Garofoli proceeding that resulted in the production of a judicial summary of portions of the Information to Obtain (“ITO”) that were redacted to protect confidential informer privilege. Lastly, I heard evidence about the manner in which the electronic devices were searched.
[3] The applicant raises the following issues on this motion:
a. A challenge to the issuance of the global transmission data warrant, tracking data warrant and production order issued on December 9, 2015. This warrant/production order was in relation to Liridon Imerovik’s cell phone. Imerovik was also a suspect in the investigation and was also ultimately charged, though tried separately. The results of the warrant/production order on Imerovik’s phone provided police a link to the applicant;
b. A challenge to the issuance of a warrant to search the applicant’s home, medical practice and car, on March 24, 2016;
c. A challenge to the issuance of a “locker warrant” to search the applicant’s electronic devices on April 18, 2016. On this date, police obtained a warrant to search 15 electronic devices that had been seized incident to the applicant’s arrest and pursuant to the March 24, 2016 warrants;
d. A challenge to the manner in which police obtained a password for the applicant’s medical practice software; and,
e. A challenge to the breadth of the authorized search and the actual manner of search of the applicant’s electronic devices conducted pursuant to a warrant issued on April 18, 2016.
[4] In an earlier Ruling reported at R. v. Otto, 2019 ONSC 2473, I dismissed a challenge to the constitutionality of ss. 492.2 and 487.016 of the Criminal Code (the “Code”). I found that the “reasonable suspicion” standard was sufficient to support the constitutionality of both sections. During the hearing of the motion, the applicant conceded that the police had met the “reasonable suspicion” standard. As such, I found that the transmission data seizure under s. 492.2 of the Code was lawful. I also found that the police had not relied on s. 487.016 to obtain the transmission data production order, but rather had relied on general production order provisions of s. 487.014 of the Code which requires a “reasonable grounds” standard. As such, the validity of the balance of this warrant remains to be determined in this motion.
Background of the Investigation
[5] In September of 2015, the Greater Sudbury Police Service commenced an investigation into fentanyl trafficking in the Sudbury area following receipt of two confidential informant tips implicating Sean Holmes as a fentanyl trafficker. At the time, Holmes had a record for drug trafficking and had outstanding charges of possession of fentanyl for the purpose of trafficking. Police obtained his cell phone records and noted contacts with ten phone numbers in the Greater Toronto Area (the “GTA”). Police suspected these contacts were related to the fentanyl trade.
[6] On October 30, 2015, surveillance revealed that Holmes and his girlfriend drove from Sudbury to Vaughan and checked into a hotel for one night. Holmes then met with Imerovik at a coffee shop and handed him a black duffle bag. He then returned to the hotel and drove back to Sudbury the next day. Police believed the meeting was related to the fentanyl trade.
[7] Through further investigation, police obtained Imerovik’s phone number and noted that it was one of the phone numbers in contact with Holmes. On December 9, 2015, police obtained a General Production Order for transmission data related to Imerovik’s phone for the time period between October 1, 2015 and November 27, 2015. They also obtained a warrant for a transmission data recorder and tracking warrant, which would monitor Imerovik’s phone for a period of 60 days starting on December 9, 2015.
[8] The transmission data obtained under the production order and transmission data warrant provided a link between Imerovik and Dr. Otto’s cell phone and Imerovik and Holmes. It also provided a link between Imerovik and Shereen El-Azarak, a pharmacist in Toronto. This link was correlated with physical surveillance.
[9] On January 19, 2016, Imerovik was arrested for trafficking fentanyl after he completed a drug transaction with Holmes, exchanging 166 fentanyl patches for approximately $32,000. On arrest, Imerovik was in possession of several fentanyl prescriptions and two box tops with prescription labels attached. The prescriptions all listed Dr. Otto as the prescribing physician. The prescriptions had been dispensed by El-Azarak.
[10] The next day, police arrested Holmes, Shereen El-Azarak, a pharmacist implicated in the scheme, and two others. A search of a hotel room occupied by Holmes revealed 176 fentanyl patches, $1,300 in cash and some drug paraphernalia. Police found 88 fentanyl patches, $14,283 in cash, a prescription pad and medical records for another person at Imerovik’s home. At El-Azarak’s home police found $27,841 in cash, in addition to a small quantity of oxycodone and other items.
[11] Police obtained a warrant for El-Azarak’s cell phone and discovered text messages suggesting that Dr. Otto was involved in a joint enterprise to traffic fentanyl with El-Azarak and Imerovik.
[12] On March 23, 2016, the applicant was arrested and search warrants were executed at his home, medical practice and on his car. Police also seized certain electronic devices incident to his arrest. The search warrants executed on this date were based, in part, on seized text messages between El-Azarak and Imerovik which implicated the applicant in the drug trafficking scheme.
[13] On April 14, 2016, the police filed a Report to Justice under s. 489.1 for the items seized pursuant to the March 23, 2016 warrants.
[14] On April 18, 2016, police sought a warrant to allow for examination of the data found on the electronic devices. The warrant had an execution time of 1:00 p.m. to 8:59 p.m. on April 18, 2016. While the police removed the electronic devices from the property locker where they had been stored within this timeframe, the actual search of the data occurred in the weeks that followed. In order to search the applicant’s work computer, the police sought the assistance of the electronic medical records software provider. A civilian member of the police service, Jonathan Wu, worked with a person at the software provider in order to create a working copy of the applicant’s medical software populated by the applicant’s medical practice data. In doing so, the software provider provided assistance and also provided a password that was used to access the data.
[15] No further Report to Justice was filed in relation to the data seized, as police mistakenly believed that the initial Report to Justice filed on April 18, 2016 was sufficient.
[16] The Crown’s theory is that Holmes was purchasing fentanyl from Imerovik, who in turn was obtaining the fentanyl through El-Azarak and others. Dr. Otto is alleged to have been involved in providing false prescriptions in exchange for cash. At trial, the Crown will seek to tender evidence found on Dr. Otto’s work computer and the cell phone found inside his car. The Crown will also seek to tender certain documents that were found in Dr. Otto’s home and car, including patient labels, handwritten prescriptions and a list of patients who were prescribed fentanyl.
The Guiding Legal Principles
[17] Search warrants and production orders are generally issued on the basis of “reasonable and probable grounds.” This standard requires “credibly based probability,” see: R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (NSCA) and R. v. Debot, [1982] 2 SCR 1140 at para. 47. The ITO must disclose reasonable grounds to believe that an offence has been committed, and that evidence in relation to that offence will be found at the place to be searched, see: R. v. Sadikov, 2014 ONCA 72 at para. 81. As Paciocco J. (as he then was) explains in R. v. Floyd, 2012 ONCJ 417 at para. 9:
In sum, the “reasonable and probable grounds” or “credibly-based probability” concept requires that the grounds furnished must demonstrate that there is a probability as opposed to a suspicion that the relevant facts could be true, assuming the information to be true (the “sufficiency inquiry”), and that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant fact exists (the “credibility inquiry”).
[18] The inquiry has both a subjective and an objective component. The affiant must personally believe in the existence of reasonable and probable grounds and the belief must be objectively reasonable; see R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at p. 250. An officer is entitled to rely on training and experience in assessing grounds but must be careful to consider both evidence that supports the grounds and evidence that detracts from grounds; see R. v. Wu, 2015 ONCA 667 at paras. 55-57 and 64. An officer should only ignore what is believed to be irrelevant or unreliable; see R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 (ONCA) at p. 203. An officer has an obligation to make full, fair and frank disclosure in an ITO; see R. v. Land (1990), 1990 CanLII 10969 (ON SC), 55 C.C.C. (3d) 382 (Ont. H.C.) and R. v. Nguyen, 2011 ONCA 465 at para. 48.
[19] An ITO must contain a reasonable degree of precision about the items being searched for, assessed within the context of the case; see R. v. Church of Scientology and the Queen (No.6) (1987), 31 C.C.C. (3d) 449 (ONCA) at p. 509. The ITO must also establish a basis for the reasonable belief that those items will afford evidence in respect of an offence under investigation; see Canadian-Oxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743 at para. 15.
[20] The ITO should also precisely specify the location or place that is to be searched, including any computers or smartphones that may be found at the location, see: R. v. Ting, 2016 ONCA 57, R. v. Vu, 2013 SCC 60 at para. 2 and R. v. Fearon, 2014 SCC 77. As well, the ITO must provide grounds supporting the belief that the listed offence or offences have been committed, though exact precision is not required; see Morelli, 2010 SCC 8 at para. 50 and R. v. Ward, 2012 ONCA 660 at paras. 110-116.
[21] The issuing justice is required to make a judicial determination as to whether sufficient grounds exist for issuance of the warrant. The judicial determination is based on the facts conveyed in the ITO. Where an officer uses only boilerplate language or conclusory statements, an issuing justice may not be satisfied that the requisite grounds have been established, see: R. v. Harris (1987), 1987 CanLII 181 (ON CA), 35 C.C.C. (3d) 1 (ONCA) at p. 13-16 and Church of Scientology, supra, at p. 500. That said, an issuing justice is permitted to draw reasonable inferences from stated facts, see: R. v. Nero and Caputo, 2016 ONCA 160 at para. 71. The affiant need not underline the obvious, see: R. v. Vu, 2013 SCC 60 at para. 16.
[22] On a review, there is a presumption that the authorization in question is valid. The applicant bears the onus of establishing that the ITO was insufficient to justify issuing the warrant. The role of the reviewing judge is not to substitute his or her view for that of the issuing justice. Rather, the role is to assess whether, on the basis of the material before the issuing justice as amplified and excised on review, the authorizing or issuing justice could have issued the warrant, see: R. v. Sadikov, supra, at paras. 83-89, R. v. Ebanks, 2009 ONCA 851, R. v. Lao, 2013 ONCA 285 and R. v. Morelli, supra, at paras. 40-41. As Watt J.A. explains in R. v. Mahmood, 2011 ONCA 693 at para. 99:
A reviewing judge does not substitute his or her view for that of the justice who issued the warrant. Rather, the reviewing judge considers the record before the issuing justice, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant.
[23] The review is conducted based on the whole of the ITO, using a common sense approach sensitive to all the circumstances. The review is not an exercise in picking apart the drafting of the ITO looking for minor imperfections, misstatements or omissions. While the police are required to draft an ITO as precisely and clearly as possible, they are not expected to spell things out as clearly as counsel. They are also not required to include every detail, no matter how minute, of the police investigation. The question is ultimately whether the core substance of the ITO could support issuance of the warrant, see: R. v. Morelli at para. 167, R. v. Lubell and the Queen (1973), 1973 CanLII 1488 (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.) at p. 190, Re Chapman and the Queen (1983), 1983 CanLII 3587 (ON SC), 6 C.C.C. (3d) 296 (Ont. H.C.) at p. 297, R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.) and R. v. Persaud, 2016 ONSC 6815 at para. 64.
The Initial Warrant to Seize/Production Order to Obtain Transmission Data
[24] There is no issue that the police had reasonable suspicion to obtain the transmission data warrant in this case. Indeed, the defence concedes this point. As such, the seizure of Dr. Otto’s transmission data under the warrant was lawful.
[25] In terms of the production orders obtained in this case, the defence argues that the ITO fails to reveal a basis upon which the issuing justice could be satisfied that reasonable and probable grounds were established for the requested productions.[^1]
[26] The core issue raised by the applicant is that the redacted ITO falls short of meeting the Debot standard for reliance on information provided by confidential human sources. During argument of the motion, the Crown indicated, without conceding a s. 8 Charter violation on the face of the redacted ITO, that it was invoking Step 6 of the Garofoli procedure.
[27] Guided by the direction provided in R. v. Crevier, 2015 ONCA 619, I received in sealed form the complete unredacted ITO and related appendices. I reviewed this material in chambers, and then commenced a hearing in the presence of the accused to determine whether suitable judicial summaries could be crafted and disclosed to the defence. In terms of the process, the Crown proposed a judicial summary in relation to each redaction. I called for submissions in relation to each redaction and indicated in writing areas where I had questions or concerns. My written questions and concerns formed part of the sealed record.
[28] As part of the process, the Crown also disclosed portions of the ITO with fewer redactions. After hearing submissions on the issue, I indicated that I was satisfied that the proposed judicial summary, as modified during the Step 6 process, was sufficient to permit the defence an opportunity to make full answer and defence. After receipt of the judicial summary, the defence did not seek to call any additional evidence.
[29] The judicial summary was ultimately incorporated into the redacted confidential human source appendices and provided to the defence. The revised appendices were filed as Exhibit 8 on the motion.
[30] I also received viva voce evidence from Det. Ibbott on several narrow issues where leave to cross-examine was granted.
[31] I turn next to assessing the sufficiency of the ITO used to obtain the transmission data warrants and production orders. I note at the outset that the ITO used to obtain the warrants is not based solely on the two confidential informers’ tips. Rather, the tips are what started the investigation. The police built on those tips, conducted further investigation, including obtaining other judicial authorizations, and the results of these steps formed the basis for the warrant/production order now under review.
[32] In cases where police use informant tips, the issuing and reviewing courts must assess the reliability of the information provided. This involves asking three questions: is the information compelling? is the informer credible? and, was the information provided corroborated?; see R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, R. v. Hosie, [1996] O.J. No. 2174 (Ont. C.A.) and R. v. Shivrattan, 2017 ONCA 23. In Shrivattan, Doherty J.A. provided the following guidance on this issue:
The first question addresses the quality of the CI’s information. For example, did he purport to have first-hand knowledge of events or was he reporting what he had been told by others? The second question examines the CI’s credibility. For example, does he have a long record which includes crimes of dishonesty, or does he have a motive to falsely implicate the target of the search? The third question looks to the existence and quality of information independent of the CI that offers some assurance that the CI provided accurate information. The answers to each of the questions are considered as a whole in determining whether the warrant was properly issued in the totality of the circumstances. For example, particularly strong corroboration may overcome apparent weaknesses in the CI’s credibility: see Crevier, at paras. 107-108.
[33] In terms of the review process, I confirm that my role is not to decide whether I would have accepted the informers’ tips in combination with the balance of the investigation set out in the ITO as a sufficient basis for issuing the authorizations in question. Rather, the question is whether an issuing justice could have done so based on this record, as amplified with the permitted cross-examination.
[34] I turn next to reviewing the contents of the ITO. According to the ITO, the investigation started after the Greater Sudbury Police Service obtained two confidential informer tips identifying Holmes as a fentanyl trafficker in Sudbury.
[35] The first informer indicated that Holmes was a supplier of fentanyl in the Sudbury area and that he used a certain phone number. S/he also indicated that two other named individuals were distributing fentanyl on behalf of Holmes. The tip included certain non-criminal details about Homes and an indication about Holmes’ source for the drugs. This was all first-hand information and provided between 2014 and 2015.
[36] In terms of corroborating this tip, the affiant notes that in December 2014, Holmes and his girlfriend Alexandra Boudreau were arrested at their apartment and found to be in possession of fentanyl. The police were able to corroborate that the phone number provided was linked to Holmes. They did this using a tracking warrant and surveillance. Lastly, the police noted that in September of 2015, the two named individuals were arrested and found to be in possession of a large quantity of cash, 31 oxycodone tablets and 3 grams of cannabis.
[37] In the appendix to the ITO which set out this informer’s information, the affiant also included information that both detracted from and supported the informer’s credibility. While the informer had a motivation to come forward with the information, the informer had provided information on several occasions in the past both in relation to search warrants and arrests. The informer had not provided information that was proven to be false or inaccurate.
[38] The second informer indicated that Holmes was a fentanyl trafficker. The informer provided Holmes’ phone number and details about Holmes’ modus operandi when trafficking. This information was all first-hand and was provided in the fall of 2015.
[39] In terms of corroboration, the affiant indicates that police were able to corroborate aspects of the information provided using a tracking warrant and physical surveillance. The appendix to the ITO also included information that both detracted from and supported the informer’s credibility, including mention of the informer’s motivation for coming forward.
[40] In cross-examination, the affiant, Det. Ibbott, indicated that one of the informers had a criminal record but it was not for a crime of dishonesty. Det. Ibbott would not say whether the second informer had a record due to privilege concerns, but indicated that the answer was revealed in the ITO.
[41] Det. Ibbott also indicated what was meant by first-hand, second-hand and third-hand information. First-hand was based on direct observation or communication. Second-hand was based on being told that something occurred by the target and third-hand was essentially hearsay. In terms of corroboration, Det. Ibbott agreed that information that was corroborative would range from the general to the specific. He would not elaborate on whether the aspects of the informers’ information that was corroborated was general or specific.
[42] In addition to the tips as discussed above, the ITO also reveals the following:
a. Police discovered that Holmes has a criminal record for drug related offences dating back to 2007. The last conviction on his record was in 2010 for the offence of possession for the purpose of trafficking a Schedule 1 substance. His girlfriend, Boudreau, does not have a criminal record.
b. Holmes and Boudreau were before the courts charged with possession of fentanyl for the purpose of trafficking, following an arrest at their apartment where Homes was found smoking a fentanyl strip and Boudreau was found to have concealed fentanyl in her underwear.
c. Police obtained a production order for Holmes’ mobile phone and learned that he was in contact with 10 phone numbers in the GTA. Two of the numbers were later connected to Imerovik and Imerovik’s girlfriend, Sophie Zegas.
d. A tracking warrant on Holmes’ phone showed that his phone was in the GTA on a weekly basis.
e. On October 30, 2015, police surveilled Holmes and Boudreau as they travelled from Sudbury to Vaughan in a rented vehicle. They checked into a hotel room for one night. Police observed Holmes leave the hotel room carrying a duffle bag that did not appear to be full. Holmes went to a coffee shop where he met with Imerovik and handed Imerovik the bag. Holmes returned to the hotel room and the next day returned to Sudbury. Police believed that this meeting was related to a fentanyl transaction.
f. Police investigated Imerovik and discovered that he does not have a criminal record, although in July of 2015 he was investigated and arrested after he was found to be in possession of 30 patches of fentanyl, money and prescriptions. A search of a related apartment also revealed oxycodone tablets, a scale, debt lists and empty fentanyl packages in someone else’s name.
g. The charges against Imerovik were noted to have been withdrawn for unknown reasons. In cross-examination on this issue, Det. Ibbott indicates that he never learned the reason why the charges were withdrawn and he agreed that the charges could have been withdrawn for many reasons.
h. On November 9, 2015, police observed Imerovik using an Uber. Police contacted Uber and were informed Imerovik subscribed to their services using a certain phone number. Police learned that the phone number provided was registered to “Ram Bell” at a certain address. Det. Ibbott indicated his belief that “Ram Bell” was a fictitious name used to evade the police. In cross- examination on this issue, Det. Ibbott could not point to anything specific supporting this belief.
i. Police investigations revealed that a phone used by Imerovik’s girlfriend, Zegas, was also in contact with Holmes’ phone.
[43] Against this factual backdrop, I turn to the review analysis. The warrant and production orders were sought to obtain transmission and tracking data in relation to the phones used by Imerovik and Holmes. The police theory was that Holmes was selling fentanyl in the Sudbury Area, and was travelling back and forth to the GTA on a weekly basis to obtain fentanyl.
[44] The police obtained authorizations that revealed how Holmes’ phone was being used and where it was located. This information revealed that Holmes was in contact with a number of people in the GTA. It also revealed that his phone was travelling from Sudbury to the GTA, including Vaughan, on a weekly basis.
[45] Police conducted surveillance on Holmes, and watched him and his girlfriend drive in a rented car from Sudbury to Vaughan where they checked into a hotel for the night. Holmes met with a person named Imerovik, and was observed to transfer a bag to Imerovik and then return to Sudbury the next day. I agree with the defence that the transfer of a bag to someone might be indicative of many things other than drug dealing. However, the evidence of the bag transfer must be considered in concert with all the evidence, particularly the fact that Holmes and his girlfriend drove from Sudbury to Vaughan and then back to Sudbury in order to make the delivery, and the fact that police had evidence suggesting Holmes made weekly trips from Sudbury to the GTA.
[46] One contact on Holmes’ phone was a phone registered to a “Ram Bell.” Police were able to make a connection between “Ram Bell” and Imerovik. They also learned that Imerovik had been arrested for fentanyl trafficking, though those charges were ultimately withdrawn. I agree with the defence position that the affiant’s belief that the name “Ram Bell” was a false name used to avoid police detection is an unsupported conclusion, and I am prepared to excise that portion of the affiant’s opinion.
[47] In terms of the charges against Imerovik, I am not overly troubled by the failure to include the reasons why the charges were withdrawn. On this, I note that there is no suggestion that police withheld or misstated information that was placed before the issuing justice, though it would have been preferable if the reason for the withdrawal of the charges had been included.
[48] In terms of the informers, I note that both were known to police. One had provided information on a number of occasions, resulting in search warrants and arrests. Neither informer had provided information that was known to be false. Neither informer had convictions for crimes of dishonesty. The motivation of the informers was provided to the issuing justice. The first informer provided first-hand information that was detailed and compelling in terms of how Holmes was conducting his drug dealing business. The second informer provided information that was also first-hand, though less compelling. Lastly, the police were able to corroborate aspects of the information provided, including information relating to Holmes’ involvement with drugs and aspects of his modus operandi.
[49] When I examine the totality of the evidence, I find that an issuing justice could readily have been satisfied that there were reasonable grounds to believe that Holmes and Imerovik were engaged in drug trafficking, and further that the sought-after orders in relation to their phones would reveal evidence of the offences. The informer information revealed in the ITO was sufficiently compelling, credible and corroborated, to permit an issuing justice to conclude on reasonable grounds that Holmes was involved in fentanyl trafficking. When combined with the information obtained by the further police investigation and surveillance, the ITO presents a strong basis for concluding that reasonable grounds exist in relation to the cell phones belonging to Holmes and Imerovik.
[50] I find the warrant and production order were lawfully obtained in the circumstances.
The “Rocha” Issue in Relation to the Search of Dr. Otto’s Home
[51] Subject to excision due to the invalidity of the prior warrant/production order, which I have found is not required, the defence concedes that the global ITO to search Dr. Otto’s medical office, home and car dated March 23, 2016, reveals sufficient grounds upon which an issuing justice could conclude that Dr. Otto was engaged in a fentanyl trafficking scheme, and further that evidence of his involvement could be found in his medical office, his cell phone and his electronic patient records.
[52] However, the applicant challenges the sufficiency of the basis upon which the police sought to search the applicant’s home. In this regard, the applicant argues that the ITO reveals no connection between his home and anything to do with the fentanyl trafficking scheme.
[53] The ITO dated March 23, 2016 lists the following items as items to be searched for:
Handwritten or electronic medical records related to the prescribing of fentanyl that can be obtained in a computer system.
Handwritten or electronic patient appointment logs that could be contained in a computer system.
Currency that appears to be offence related property.
Debt lists.
Mobile phones and/or communication devices believed to be used by the subject of this investigation.
Mobile phone documents related to contract and subscriber information/incoming and outgoing calls, text messages and emails.
Safe and lock boxes.
Identification documents relating to occupancy.
Financial records relating to subjects of investigation.
[54] In terms of the structure of the ITO, it commences with an overview of the investigation including how the investigation commenced, who the key players are and what their roles are believed to be.
[55] The ITO describes the police had grounds to believe that Imerovik was obtaining fentanyl for Holmes through El-Azarak’s pharmacy based on results of the transmission data warrants and production orders, coupled with police surveillance.
[56] The ITO reveals that search warrants were executed on January 20, 2016, resulting in the seizure of large quantities of fentanyl patches, cash, prescriptions, debt lists, and other related documents. The warrants were executed at El-Azarak’s home and pharmacy, Imerovik’s home and a hotel room used by Holmes.
[57] The ITO reveals a degree of connection between Imerovik and Dr. Otto, and between Imerovik and persons who were prescribed fentanyl at El-Azarak’s pharmacy. The ITO reveals a number of meetings and connections between Imerovik and El-Azarak (as well as El-Azarak’s brother Omar). The ITO also reveals a degree of connection between Dr. Otto and El-Azarak, including five outgoing calls from El-Azarak to Dr. Otto in January 2016, and approximately 67 text messages, the majority of which were about meeting each other.
[58] Importantly, the ITO makes reference to certain text messages seized from El-Azarak’s cell phone. The texts are between her and Imerovik, and they provide a clear basis for finding the existence of a fentanyl trafficking scheme. The texts also reveal Dr. Otto’s involvement in the scheme, including a discussion about how much Dr. Otto is to be paid for his role in the scheme.
[59] In terms of the timing of the investigation, the ITO reveals that the investigation starts in October 2015 and results in arrests in January 2016.
[60] The ITO reviews Dr. Otto’s background and notes that he is a licensed doctor with no criminal record. It also notes that Dr. Otto was suspended from medical practice between October 5, 2015 and December 5, 2015.
[61] There is nothing in the warrant that directly implicates the use of the applicant’s home in the fentanyl trafficking scheme. This is unlike the case with El-Azarak, where police observed Imerovik attend at her apartment lobby and a nearby shopping mall on one occasion, for what they believed was a fentanyl related meeting.
[62] At paragraph 111 of the ITO, the affiant states:
It is reasonable to believe that during the course of his work day, the items being sought were at the medical centre, which is listed as his primary practice location on the Ontario College of Physicians website. Furthermore it is reasonable to believe that Dr. Otto would transport the items in the Lexus and had taken them to his residence for storage and security.
[63] In relation to the specific items sought, the ITO provides the affiant’s basis for believing the items sought will be at the various locations. At paragraphs 98-100, the ITO sets out the basis for believing that handwritten or electronic medical and/or patient records exist. There is no issue with these paragraphs.
[64] In paragraph 101, the affiant suggests that the texts indicating that Dr. Otto was to be given or paid $1,500 for his services, supports an inference that cash proceeds will be found. Again, there is no issue with this paragraph.
[65] In paragraphs 102 to 106, the affiant indicates that in his experience “drug traffickers” have debt lists, often more than one phone and use safes and lock boxes. As I discuss in relation to the search of the various electronic devices below, to the extent that these paragraphs purport to rely on what stereotypical “drug dealers” do or how they behave, they are of limited value in assessing whether the grounds to believe those items were present are made out in this case. Even if there is a stereotypical drug dealer profile, there is no basis for believing that Dr. Otto would fall within the stereotype.
[66] That said, there was a case specific basis revealed in the ITO for much, if not all, of these items. The evidence in the ITO reveals that the police had discovered a fentanyl trafficking scheme involving a significant quantity of drugs and cash. The evidence in the ITO supports the inference that Dr. Otto is being paid, likely in cash, for his role in the scheme. It would not be a stretch to believe that Dr. Otto would keep a “debt list” in this regard. It would also not be a stretch to conclude that Dr. Otto kept proceeds of this scheme in his house, car or medical office. Similarly, it would not be a stretch to conclude that he used a safe or lock box for that purpose.
[67] The police had evidence implicating Dr. Otto’s cell phone and they had a basis for finding that phone, even in the absence of an assumption that he might have multiple phones. The same applies to electronic medical records relating to his patients who were prescribed fentanyl.
[68] In short, I am satisfied that the inference regarding the presence of the sought-after items were available even in the absence of the stereotypical “drug dealer” assumptions.
[69] Against that backdrop, I turn to the “Rocha” issue. In R. v. Rocha, 2012 ONCA 708, the Court of Appeal looked at the validity of a search warrant that authorized a search of different locations, including a restaurant business and a residence. The warrant was based on confidential informers which set out grounds for the search of the restaurant business, but provided bald, conclusory statements in relation to the presence of drugs at the home. Writing for the Court, Rosenberg J.A. found that the ITO in that case failed to reveal any basis apart from the informer’s bald conclusion to support the search of the home.
[70] In this case, the applicant seeks to draw an analogy between Dr. Otto’s home and the facts in Rocha. A similar argument was rejected by my colleague de Sa J. in R. v. El-Azarak, 2018 ONSC 4450, a case arising from this same investigation. As de Sa J. notes:
In my view, the outcome in Rocha was largely based on its specific facts. In Rocha, the warrant was based entirely on CI information. Any grounds relied upon by the affiant pertaining to the search of Rocha’s home had been edited out. Accordingly, there was no evidentiary basis remaining in the ITO to support the search of the home. For the Court to have drawn the inference in law would be improper as it would make the inference available in every case. In my view, it is for this reason that Rosenberg J.A. made the findings he did. To suggest, however, that Rocha stands for the general proposition that an affiant cannot rely on common sense inferences in relation to a target’s home would be incorrect in my view. See R. v. Atkintunde, 2013 ONSC 2522 at para. 36.
[71] de Sa J.’s approach on this issue finds support in other cases where the courts have examined the common sense inferences arising from evidence supporting a person’s involvement in a criminal offence, and a belief that evidence of the offence will be found in the person’s residence, see: R. v. Clairoux, 2018 ONCA 629 at para. 10, R. v. Chen, 2019 ONCJ 103 at paras. 39-50.
[72] When I assess the evidence that was put before the issuing justice in this case, I conclude there was a basis upon which the issuing justice could come to the conclusion that the items sought would be at Dr. Otto’s home. I reach this conclusion for the following reasons:
a. First, there was abundant evidence establishing the existence of a sophisticated fentanyl trafficking scheme involving the participation of a pharmacist, a doctor, purported “patients” and others. The scheme involved a significant quantity of cash and fentanyl.
b. There was evidence supporting the inference that Dr. Otto was a doctor involved in the scheme. There was a basis to believe that his cell phone and work computer contained evidence relating to the scheme. A cell phone and a work computer are items that can be readily moved from one location to another.
c. There was a basis to believe that Dr. Otto was being paid for his role in the scheme, presumably in cash.
d. There was evidence that Dr. Otto was suspended from the practice of medicine for a time period overlapping the time period of the investigation.
e. There was evidence that Dr. Otto was seen travelling by car from his home to his medical practice.
f. While I accept that in the El-Azarak case, the affiant revealed that Imerovik attended at the El-Azarak residence for what was believed to be a drug related meeting, I don’t find the absence of that type of evidence in relation to the use of Dr. Otto’s house to be fatal.
g. On the totality of the evidence, including the available common sense inferences, I am satisfied that one could conclude that there was a reasonable probability that Dr. Otto would have the evidence sought in his home.
The “Locker Warrant” and the Search of the Electronic Devices
[73] The applicant argues that the police violated his s. 8 rights when they examined the data on his electronic devices pursuant to the warrant issued on April 18, 2016. First, the applicant argues that the scope of the search was impermissibly broad. Second, the applicant argues that actual search of the data occurred outside the nine hour window for execution provided on the face of the warrant. Last, the applicant argues that the police violated his rights by failing to obtain prior judicial authorization to secure his password from the software provider.
[74] The use of a second warrant to search the contents of the electronic devices stems from the developing jurisprudence around computer searches; see for example, R. v. Vu, 2013 SCC 60. The police initially seized the various devices using the warrants obtained on March 23, 2016. Those warrants did not specifically authorize the actual search of the devices, merely their seizure. The seized devices were placed in an evidence locker at the police station, and then police obtained what is colloquially known as a “locker warrant” to search the data on the devices.
[75] The locker warrant dated April 18, 2016 states in Appendix A that the item being searched is in the York Region Police property room. However, Appendix A goes further and states the search is for “[t]he data contained within” the various devices seized, and it includes a list of the particulars of each device to be examined. The Appendix particularizes data sought as including “contact/address book, messages, chats, dialed/received/missed calls, photographs, videos, audio, calendar/appointment logs, patient records and/or charts, medicine prescribing records, billing records.”
[76] The locker warrant does not require that police create a forensic image of the seized devices within the time for execution of the warrant. The locker warrant also includes no search protocols other than the particularized list of items to be searched for.
(i) The Scope of the Warrant Authorizing the Search of the Devices
[77] The applicant challenges the April 18, 2016 warrant on the basis that it fails to provide reasonable grounds supporting a search of all 15 devices listed in the warrant. The thrust of the applicant’s submission is that the affiant essentially relied on generic assumptions about how “drug dealers” operate, in order to support a request to examine the contents of 15 electronic devices seized from the applicant’s home, car and medical office.
[78] The applicant argues that the police conducted a very expansive and intrusive search, effectively combing through 15 electronic devices that had the capacity to contain virtual mountains of information. The applicant does, however, accept that police had sufficient grounds to search his cell phone found in his car following his arrest, and his medical practice computer based on the grounds articulated in the ITO. Nonetheless, the applicant asserts that the affiant failed to articulate any specific basis to search the other devices.
[79] The applicant argues that the warrant to search the electronic devices is not severable and as such, the entire warrant should be quashed. The applicant also argues that the manner of the search of the devices was overly broad in view of the articulated basis for the search in the ITO.
[80] I start with a brief review of the articulated grounds to search the devices as set out in the ITO dated April 18, 2016. In this ITO, Det. Ibbott sets out the history of the investigation up to that point in time. There is no issue that the ITO contains ample grounds supporting the existence of a fentanyl trafficking scheme involving Holmes, Imerovik, El-Azarak, Omar El-Azarak (Shereen El-Azarak’s brother) and Dr. Otto.
[81] The grounds articulated support a reasonable probability that Imerovik is engaged in obtaining fentanyl from El-Azarak using prescriptions from Dr. Otto. The evidence reviewed in the ITO shows a degree of interconnectivity between Imerovik and Holmes, Imerovik and Dr. Otto, and Imerovik and a number of Dr. Otto’s patients who had been prescribed fentanyl by Dr. Otto. Some of the contact between Dr. Otto and Imerovik occurred when Imerovik was at El-Azarak’s pharmacy.
[82] The police also interviewed the patients identified. All but one of these patients provided statements which the police believed were not truthful. In relation to the one patient, police came to believe that his identity had been used in the scheme without his knowledge.
[83] The ITO also relates a number of text messages between Imerovik and El-Azarak. These are set out at paras. 59-65 of the ITO. Taken together, these text messages strongly support the conclusion that Dr. Otto was an integral part of the fentanyl trafficking scheme and was paid for his involvement.
[84] Turning to the grounds for searching the actual devices, I note that the ITO does not differentiate as between the devices. In other words, the ITO does not give grounds to believe that evidence of the offences will be found in each specific device. Rather, the ITO gives general grounds to believe that a search of all of the devices found will reveal evidence of the offences.
[85] At paragraphs 67 to 71, the affiant notes that Dr. Otto was observed driving his motor vehicle from his home to his medical office. The affiant notes that Dr. Otto was suspended from practice for reasons unrelated to this investigation from October 6, 2015 to December 6, 2015. The affiant also notes a number of phone contacts between Dr. Otto’s phone and Imerovik’s and El-Azarak’s phones.
[86] At paragraphs 101 to 111, the affiant details his specific grounds for believing that the devices will reveal evidence of the offences under investigation. At paragraph 102, the affiant notes that a transmission data warrant revealed a connection between Imerovik’s cell phone and Dr. Otto’s cell phone. He notes that a number of mobile phones were found during the execution of the warrants. Three phones were in Dr. Otto’s home and one was in his car.
[87] At paragraph 104, the affiant notes that in his experience persons involved in the distribution of drugs such as fentanyl use mobile phones to arrange drug transactions. He also notes “[d]rug dealers use mobile phones to arrange meeting locations using text messages, phone calls, emails and other means” [Emphasis added.]
[88] At paragraphs 105 and 106, the affiant states:
From my experience, it is also common for drug dealers to have debt lists, either digital or hand written, which contain names and monetary amounts. These debt lists are used by drug dealers to keep track of money owed by the drug customers, and what customers have bought in the past. This information can be document [sic] on a calendar or other storage database within the cellular phone. I believe that Dr. Otto was receiving money for prescriptions of fentanyl patches. It is reasonable to believe that Dr. Otto was keeping a list to keep track of these transactions.
From my experience, it is also common for drug dealers to photograph hand written debt lists, contact information, drug paraphernalia, drug use and cash to keep a digital record. [Emphasis added.]
[89] The affiant then notes the following in paragraphs 107-110:
Furthermore, I have detailed that IMEROVIK was in contact with Dr. OTTO and patients known to be prescribed fentanyl and having it dispensed at Weston PharmaChoice. I know from my experience as a police officer and my personal experience dealing with family doctors that records are kept with respect to patient diagnosis, medicine prescribed, billing, appointments, billing [sic] and other pertinent information related to a patient visiting the doctor. In this digital age and paperless office business atmosphere, much of these records are contained in computer systems and portable media storage devices such as portable hard drives and USB drives.
From my experience, the data obtained with respect to patient diagnosis, medicine prescribed, billing, appointments, billing [sic] and other pertinent information related to a patient visiting the doctor will allow investigators to identify the progression of pain management by Dr. OTTO, if any. The data will provide investigators with information related to when the patient attended and what was prescribed, cross referring that data with Weston PharmaChoice dispensing records and other documents seized. The data will be used to corroborate or disprove statements from those who have been interviewed, including statements that have been taken by the accused persons.
As noted with this Affidavit, ten people were identified as a result of being prescribed fentanyl patches and those prescriptions were filled at Weston PharmaChoice. Those same people had contact with IMEROVIK during the time period of the TDR. Additionally, Omar EL AZRAK was prescribed fentanyl from Dr. OTTO and the empty box of fentanyl was found on IMEROVIK at the time his arrest.
As noted with this Affidavit, fentanyl patches are being prescribed by Dr. OTTO. It is my understanding from my own experience that when a patient books an appointment with a doctor, a log is created for billing purposes. These logs will provide investigators will corroborate [sic] evidence when compared to the Drug Usage Report and prescriptions seized from Weston PharmaChoice. In the case of Mr. MOUSTAPHA, who advised that he did not know Dr. OTTO or had ever attended his practice, the lack of logs will provide evidence and corroborate his statement.
[90] The paragraphs excerpted above set out the basis for the affiant’s belief as to why a search of the electronic devices will yield evidence of the offences under investigation. Again, the applicant does not suggest that the police lacked grounds in relation to his cell phone and work computer. This concession is appropriate. In my view, the affidavit provides ample grounds supporting a belief that the applicant’s work computer and cell phone contained evidence of the offences under investigation.
[91] The applicant argues that certain portions of the affidavit contain boilerplate stereotype assumptions about how a “drug dealer” typically acts. Even assuming that there is a stereotypical set of assumptions about how a drug dealer would typically act, the defence further argues that Dr. Otto would not have fit that stereotype.
[92] I agree. While police officers are permitted to base their beliefs on experience, caution must be exercised so to not confuse “experience” with reliance on generalized or stereotypical assumptions about how certain types of people are expected to act. In my view, the use of the stereotypical assumptions about “drug dealers” adds very little to the grounds for belief in this specific case. In this regard, there exists an apt analogy to the stereotypical assumptions about pedophiles discussed by Fish J. in R. v. Morelli at paras. 76-79, where he states:
Perhaps even more troubling than the paucity of information as to the basis for the officers’ opinions is the fact that the class of persons to whom specific proclivities are attributed is defined so loosely as to bear no real significance. Both officers speak about the propensities of undefined “types of offenders” or simply “offenders”.
While it is clear from the context that the officers are referring to some variety of child pornography offenders, it cannot be assumed, without evidence, that broad but meaningful generalizations can be made about all persons who commit (or are suspected of committing) child pornography offences. For example, a person with an exclusive interest in child pornography is surely of a different “type” than a person who is primarily or exclusively interested in legal adult images, but has nevertheless downloaded a small number of illegal images. Similarly, a person who seeks out pornographic images of young children or infants is likely a different “type” than a person who views images of teenagers under the age of 18.
These people all commit child pornography offences, but the “propensities” of one type may well differ widely from the “propensities” of others. There is no reason to believe, on the basis of the information in the ITO, that all child pornography offenders engage in hoarding, storing, sorting, and categorizing activity. And there is nothing in the ITO that indicates which specific subset of these offenders does generally engage in those activities.
To permit reliance on broad generalizations about loosely defined classes of people is to invite dependence on stereotypes and prejudices in lieu of evidence.
[93] When I examine the paragraphs from the ITO excerpted above, I have some concerns about the usefulness of the underlined sentences. These sentences appear to be nothing more than generalized conclusions based on stereotypes of “drug dealers.” Assuming there exists a profile for a typical “drug dealer”, Dr. Otto would not fit that profile. As such, I am prepared to excise those portions of the ITO.
[94] However, even in the absence of the impugned portions, there exists, in my view, an ample basis for the general conclusion that Dr. Otto’s cell phone and computer would contain evidence of the offences. The police had specific evidence as to how this particular drug trafficking scheme was working. They had evidence of text communications supporting the inference that payments were being made to Dr. Otto for his role in the scheme. Leaving aside how any “drug dealer” would act, it was reasonable for the police to believe that Dr. Otto would likely or probably keep track of monies owed to him under the scheme. It was also reasonable for the police to believe that Dr. Otto was communicating with the others involved in the scheme by way of text, email or phone. Lastly, the police had a clearly articulated basis for believing that relevant evidence would exist on Dr. Otto’s medical practice computers. On this last issue, I reject the suggestion the grounds are undermined because the police did not know whether Dr. Otto had a “paper practice” that did not use computers. In my view, it was reasonable to assume that his medical practice created and maintained electronic records as set out in the ITO.
[95] I turn next to assessing the grounds in relation to the specific devices seized. As a starting point for this issue, I note again that the police had reasonable grounds to believe that Dr. Otto’s computer and cell phone contained evidence in relation to the offences under investigation. The question remains, which computer and which cell phone? And what about other devices, like the USB keys?
[96] As part of the evidentiary record on this motion, I was provided with a chart setting out the various locations where items were seized. In terms of the search of the house, police mainly retrieved items from the master bedroom and from a home office. Two electronic devices were found in a separate boy’s bedroom. The police also seized a cell phone from Dr. Otto’s car, three USB keys on his person and three computers from his medical office.
[97] In his evidence before me, Det. Ibbott indicated that in his experience both as a police officer and as parent, electronic devices are often handed down to children or other family members. Since the data on electronic devices can often be retrieved even after the initial user “deletes” it, the device remains a potential source of evidence even if it has been handed down to another user. Det. Ibbott agreed that this information should have been provided to the issuing justice in support of the request to search all the devices.
[98] In terms of the ITO, I note that there is no mention of why each device might contain relevant evidence. That is, the affiant does not relate grounds to believe in relation to the specific devices seized. There is no mention as to the officer’s belief about the possibility of a device being handed down from person to person. There is no attempt to correlate the location of the seized devices with other evidence so as to give rise to potential inferences regarding the presence of evidence on the devices. The ITO on its face purports to justify the search of any and all electronic devices found in Dr. Otto’s home, car or office, or seized incident to arrest.
[99] In assessing this issue, I remind myself that I am not the issuing justice. My role is not to simply substitute my opinion for that of the issuing justice. My role is to determine whether there was a basis upon which the warrant could have issued.
[100] There may be cases where it is obvious that any and all electronic devices seized will contain evidence of the offence in question. There may also be cases where the police only have grounds to search a particular device and no others. However, there may also be cases where police have grounds to believe that evidence will exist on a device, but two such devices are seized and the police are unable in advance of the search of the devices to determine which device contains the evidence, though they believe that evidence will be on one or the other. In such a case, the police will likely have sufficient grounds to search both devices as the standard for the search only requires reasonable probability that evidence will be found. If the standard required that police believed on a balance of probabilities that evidence would be found in each device, they would be unable to get a warrant for either device. This nuance is well captured in Hutchison’s Search Warrant Manual 2015: A Guide to Legal and Practical Issues Associated with Judicial Pre-Authorization of Investigative Techniques, 2014 Thomson Reuters Canada Limited, where the learned author states at p. 59:
The importance of the exact nature of this standard can be seen in the problem of simultaneous searches. There are circumstances where investigators have grounds to believe that an item they wish to seize may be in one of a number of different locations. For example, suppose an investigator has learned that the owner of a business keeps a secret set of records with the true affairs of the company in a notebook computer which he or she moves between two business locations and the home, but nowhere else. The investigator may wish (or more likely, need) to obtain three different search warrants to search simultaneously these three separate locations for the notebook. If the requirement of reasonable grounds means that the investigator had to be at least 51% satisfied that the notebook was at one of these locations as opposed to the others, the investigator would probably not be able to get even one warrant, let alone successive warrants, as there is simply no evidence suggesting that it is any more likely that the secret records are at one location over the other. However, as noted, the weight of the authorities to date states that reasonable and probable grounds does not require this type of certainty or probability.
[101] On the basis of the grounds set out in the warrant, the police had a solid basis for searching the three computers seized from Dr. Otto’s medical office. They also had a solid basis for searching the cell phone found in his car. The presence of that phone in the car left open a reasonable inference that it was the cell phone that was being used by Dr. Otto at the time of his arrest, and also at the time of the offences some months earlier.
[102] In terms of the search of the house, the location of certain electronic devices within the home office and master bedroom of the home suggests a proximity to Dr. Otto and a reasonable basis for believing that the devices had been used in a time frame proximate to the offences in question. These electronic devices were also found proximate to other items of evidence. For example, the master bedroom closet contained a number of cell phones and USB keys. It also contained a prescription in the name of “Omar El-Azarak”, medical records, a client list, a paper with codes and various mortgage and property documents. Similarly, the electronic devices in the home office were found near prescription pads in Dr. Otto’s name, suggesting that the home office was being used by Dr. Otto.
[103] The same may not be true in relation to the two portable hard drives that were located in the closet of the boy’s bedroom. There is nothing in the evidence before me that supports a particular inference regarding the presence of evidence on these two devices.
[104] The difficulty in this case is that on the basis of the ITO, there is no way for the issuing justice to assess why the affiant’s belief that all the devices contain evidence of the offences under investigation was objectively reasonable. I accept that once police establish grounds to believe that a cell phone or a computer belonging to a target will contain evidence of a criminal offence, it may not take much more to establish that all cell phones or all computers found at a certain location will afford evidence, but that is a step that should be taken in order to maintain the constitutionality of the search. Similarly, the police should be required to provide a basis for extending that search into other electronic devices, such as USB keys and portable hard drives. Again, it may not take much to establish the connection, but there should be something.
[105] In this case, the affiant should have set out grounds for believing why the search of the specific devices would reveal evidence of the offences under investigation. This should have included a description of the location where the items were seized, their proximity to other items of evidence, a correlation to the dates of the offences under investigation and any other relevant facts that could support an inference as to the presence of evidence on the device. It could have included some mention of the officer’s belief that devices are handed down within a family and that data from an initial user might still be available on a handed down device. It could also have included some grounds to believe that the mere presence of a device in a child’s bedroom might not mean that the device was not used by the target. In relation to the three USB devices that were seized on Dr. Otto incident to arrest, the ITO should have provided some reasons supporting an inference that evidence would be found on these devices. On this issue, I note that Dr. Otto was arrested some time after his alleged confederates were arrested and, as such, the timing of the commission of the alleged offences predates his arrest by approximately two months.
[106] My concern is that in a case like this, while the police had grounds to search Dr. Otto’s cell phone and also computers that Dr. Otto was using in relation to his medical practice, the police did not automatically also have grounds to search every device found in the home or on his person at the time of arrest. Put another way, this is not one of those cases where the grounds for the initial search that resulted in the seizure of the devices necessarily also supports the conclusion that all the devices should be further searched for evidence.
[107] While I am prepared to find a s. 8 breach on this basis, I note the following:
a. The search of Dr. Otto’s medical practice computers and the cell phone seized from his vehicle are not tainted by the breach. In my view, the warrant in relation to these devices is not only well supported but also severable.
b. Had the affiant properly articulated his beliefs and the facts supporting those beliefs, the police had a clear and supportable basis for searching the contents of the various laptops and cell phones that were found in the master bedroom and home office.
c. It is not clear that the police would have been able to demonstrate a basis for searching the two portable hard drives found in the boy’s bedroom and the USB keys found incident to arrest. That said, I cannot state with certainty that no issuing justice could conclude that an examination of these devices would have been warranted. Ultimately, it would depend on what the affiant articulated as the basis for the search of these devices.
[108] While I find a breach of s. 8 on this issue, I find that this breach only taints the search of the devices found in the home and the USB keys found on Dr. Otto incident to his arrest. I also note that the Crown is not seeking to tender any evidence seized from any of these devices.
[109] In terms of the authorized breadth of the search, the defence argues that the search of the devices authorized by the warrant in this case was unconstitutionally broad. The defence also argues that the manner of search was impermissibly broad.
[110] I disagree. In in accordance with R. v. Vu, supra, search protocols are not required in order to safeguard the constitutionality of the search of an electronic device. However, the Supreme Court has also made it clear that the police are not permitted to indiscriminately scour the entire contents of a computer searching for evidence of criminal offences.
[111] In this case, the police sought to search the electronic devices for specific types of data as set out on the face of the warrant. To repeat, the data sought was particularized as including “contact/address book, messages, chats, dialed/received/missed calls, photographs, videos, audio, calendar/appointment logs, patient records and/or charts, medicine prescribing records, billing records.” The warrant did not restrict the data sought by reference to its relevance to the fentanyl trafficking investigation, nor did it restrict the search of data to a specific time period linked to the offences in question. That said, the warrant is clear that the offences under investigation are related to fentanyl trafficking within a defined date range.
[112] In relation specifically to photographs, paragraph 106 of the ITO advances the generalized proposition that “drug dealers” photograph things such as debt lists, drug use and paraphernalia and the like.
[113] The Crown called two witnesses in relation to the computer searches, Mr. Wu and Det. Ibbott. Mr. Wu’s main work was in relation to accessing the data from Dr. Otto’s medical office computer system. While Mr. Wu could not recall whether he had been given specific search terms, his role was essentially to assist in setting up the data for review by investigators. Det. Ibbott indicated that he used search terms gleaned from patient names and phone numbers that surfaced in the investigation. He indicates that he would have given these search terms to Mr. Wu and then would have reviewed the search results produced.
[114] Det. Ibbott also indicated that forensic search tools were used on the various devices to search for photographs, documents and other files relevant to the investigation. While the evidence on this point was not well developed, it appears that the searches of the devices were related mainly to patient names and details that were obtained from prescribing records obtained in the investigation. That said, it is also clear that Det. Ibbott went beyond patient related search terms in conducting his searches of the devices. For example, he was able to determine that a certain cell phone had been used by Dr. Otto while he was out of the country in Ghana, and another phone had been used by Dr. Otto in China. Det. Ibbott did not have a great recollection about how he searched the cell phones, apart from noting that most of the searches produced no relevant results.
[115] As well, Det. Ibbott confirmed that he searched for photographs on most of the devices, though not the computer which contained the medical practice software. None of the photographs searched produced relevant results.
[116] On the evidence before me, I am not concerned that Det. Ibbott engaged in an indiscriminate search of the electronic devices. To the contrary, the evidence suggests that the searches of the devices were generally tied to specific aspects of the investigation.
[117] The only area that causes some concern is the search of the photos. In this regard, I have two concerns. First, the search of the photographs was premised on the affiant’s belief that “drug dealers” take photographs of their debt lists, drug use and paraphernalia. As indicated above, the reliance on the “drug dealer” stereotype is not helpful in this case. Even assuming there is a stereotype, it is hard to see how Dr. Otto would fit it. Apart from the suggestion that “drug dealers” like to photograph debt lists, drug paraphernalia, et cetera, there is no other basis revealed in the ITO to support a conclusion that photographs would be of potential relevance to the investigation.
[118] My second concern is that according to Det. Ibbott, he searched most of the devices for photographs. The only device that was not searched for photographs was Dr. Otto’s work computer. This was not done because once it was discovered that this computer contained the data base for the medical practice, steps were taken to access the data base using the same medical practice software used by Dr. Otto. As such, the search that was ultimately completed on this device was only in relation to the medical practice data.
[119] The manner in which searches for data on electronic devices are framed is a developing issue that lacks clear guidance. Indeed, there does not appear to be a standard or accepted practice on how to describe the items sought when it comes to electronic evidence. At times, when a warrant is obtained to seek data, the police will simply provide a list of the types of data they will be searching for on electronic devices. This might include Word documents, pdf files, emails, photographs, videos, calendar entries, personal contacts, internet search history, et cetera. There is a legitimate issue as to whether the police need specific grounds in relation to each type of file or data they are searching for. Indeed, depending on the context and nature of the search, it is arguably artificial to require police to set out grounds to believe each specific type of file will contain evidence of the offences under investigation as long as there are grounds to believe that evidence will be found in the device. In other words, the issue is whether the grounds establish that the evidence sought will be on the device, even if the evidence can take more than one form. To provide an example, a police officer may have grounds to believe that a person’s cell phone will reveal evidence of communication with another party. The officer might not know what specific form the communication takes, it could be an email, a text, a video note, or a photograph attached to a text or email. If the issuing justice is satisfied that the phone contained evidence of such communication, a warrant could issue permitting an officer to examine the device for, inter alia, emails, text message, photographs, videos, contacts and calendar entries. It would not matter that the officer lacked the specific grounds to believe that text messaging as opposed to email was the actual means of communication.
[120] On the other hand, it is also clear that some degree of specificity is required. A search for evidence that can take any form in an electronic device may result in an indiscriminate scouring of the device sufficient to warrant constitutional scrutiny. As such, it will generally be safest if the warrant is restricted to certain types or categories of files and backed by sufficient grounds, and that the search be conducted in an organized and focussed fashion.
[121] In this case, I need not finally decide whether each type of electronic file sought to be searched needs to be backed by reasonable grounds. I will assume that the police were required to provide grounds that photographs on the devices would reveal evidence of the offences. The affiant did not do so in paragraph 106 of the ITO, nor did he do so anywhere else in the ITO.
[122] As well, the warrant could have been, and perhaps should have been better drafted in terms of the precise nature of the electronic data that was being sought. Nonetheless, apart from the failing in relation to the search for photographs, I am not satisfied that the warrant authorized an indiscriminate or overly broad scouring of Dr. Otto’s various electronic devices, nor am I satisfied that what the police did amounted to an indiscriminate scouring of the devices. The police had a valid basis for seeking access to data on the devices in relation to the offences under investigation. The search of the devices was tailored by types of files authorized to be searched and the nature of the search undertaken by the officer involved.
[123] In terms of the remedy, I quash the portion of the warrant that authorizes the search of the photographs. I find the balance of the warrant is supportable. On that basis, while the search for photographs was unauthorized and resulted in a Charter violation, no photographs were seized from any device. While I do not know what evidence the Crown seeks to tender from the applicant’s cell phone, it does not appear my finding on this issue calls into question the search that was conducted on the cell phone.[^2] Moreover, I find that the search of Dr. Otto’s medical practice computer did not include a search for photographs, and as such that search was not tainted by the unauthorized search for photographs.
(ii) The Timing of the Search
[124] In the recent decision of R. v. Nurse, 2019 ONCA 260, the Court of Appeal addressed the issue of locker warrants and searches of electronic devices. The decision is dispositive of the arguments raised in this case.
[125] There has been a divide in the case law for some time, as to the precise mechanics of getting a second warrant to search the contents of electronic devices following an initial lawful seizure of those devices. In the absence of clear guidance, police have been tasked with structuring search requests for the data contained in electronic devices which are themselves found somewhere, usually in a police evidence locker. Part of the difficulty in properly structuring the warrant is based on the historical conception of a warrant as a tool for searching a place, such as a home, office or car. One approach has been to obtain a warrant to search the physical space where the devices are held, i.e. the police evidence locker, and to indicate that the search is for the purpose of obtaining the actual data contained on the device found inside the locker. Another approach has been to obtain a warrant to simply search the actual device for the data. While there are arguments in favour of both approaches, it appears that the Court of Appeal has effectively endorsed a functional approach that seeks to assess what it is that the issuing justice actually authorized, and what the impact on the accused’s privacy interest is.
[126] In Nurse, the police seized some Blackberry devices. They then obtained a locker warrant, which provided for a 15 hour window within which to seize the devices. Days and weeks later, the police created forensic images of the Blackberry devices and attempted to view the data with limited success. A year later, owing to developments in forensic software, the police were able to better analyze the images and secure incriminating evidence. At trial, the defence challenged both the initial search as imaging was outside the time period in the warrant, and also challenged the further search as falling far outside the scope of the warrant. Those arguments were rejected by the trial judge: see R. v. Nurse and Plummer, 2014 ONSC 1779 and R. v. Nurse and Plummer, 2014 ONSC 5989.
[127] On appeal, the only issue raised was whether the second search of the forensic images required a fresh warrant. The Court of Appeal, per Trotter J.A., rejected this argument stating at paras. 133-137 and 141-143:
In analyzing this issue, it is important to consider the essential nature of computers and other digital devices. They challenge traditional definitions of a ‘building, receptacle or place’ within the meaning of s. 487 of the Criminal Code. In R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 698, McLachlin C.J. said, at para. 27: ‘The factor of ‘place’ was largely developed in the context of territorial privacy interests, and digital subject matter, such as an electronic conversation, does not fit easily within the strictures set out by the jurisprudence.’ See also R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 45-52. Similarly, in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, Cromwell J. said, at para. 39: ‘…computers are not like other receptacles that may be found in a place of search. The particular nature of computers calls for a specific assessment of whether the intrusion of a computer search is justified, which in turn requires prior authorization.
Because of these conceptual differences, arguments by analogy to traditional (i.e., non-digital) search scenarios will not always be helpful. For example, the trial judge was right to reject the ultraviolet light testing scenario advanced by trial counsel. It does not work in this context because the second ultraviolet light analysis would require re-entry into the premises resulting in a separate invasion of privacy.
The re-inspection or re-interpretation of the raw data harvested from the appellants’ devices did not involve a further invasion of privacy. It is not necessary in this case to identify precisely when the appellants’ privacy rights were defeated in favour of law enforcement. Nevertheless, their privacy rights were “implicated” when their devices were seized upon arrest. In R. v. Reeves, 2018 SCC 56, 427 D.L.R. (4th) 579, Karakatsanis J. held at para. 30: “When police seize a computer, they not only deprive individuals of control over intimate data in which they have a reasonable expectation of privacy, they also ensure that such data remains preserved and thus subject to potential future state inspection” (emphasis in original). The same would hold true for the seizure of a cell phone or BlackBerry device.
Beyond the privacy implications triggered by the seizure of the devices, the appellants’ privacy interests in the data on their devices were subjugated to law enforcement interests upon the issuance and execution of the warrant to search the data on these phones: see Vu, at paras. 3, 49; and Reeves, at para. 30.
The appellants do not contend that it was improper for the police to image the data on their devices. Once this was done, there was no restriction, on the face of the warrant or at law, as to when or how often the police were permitted to examine or inspect this lawfully seized and copied data.
In this case, the right balance was struck. Conducting a second interpretation of the data files did not further defeat the appellants’ privacy interests. This was complete at the time the search warrant was issued and the police retrieved the phones from the police locker. It may not always be the case that a re-analysis or re-inspection of lawfully obtained evidence will not constitute a “new search”. The inquiry must consider the specific circumstances in which the analysis is conducted. In this case, the second analysis was conducted in the course of an ongoing police investigation, the substance of which had not changed between the first analysis and the second analysis. The data was extracted from the devices at a fixed point in time, and remained frozen in time at this fixed point. That is, the second analysis was conducted on the very same BIN files that the police had already examined. Finally, there were no search protocols imposed by the warrant. In such circumstances, even if the appellants had a subjective expectation of privacy in relation to the BBM chats, it was objectively reasonable for the police to conduct the second analysis.
Similarly, the timing of the second inspection had no impact on the appellants’ privacy interests. Indeed, I consider the timing issue to be a distraction. Had the police commenced running the data but were interrupted, they would not have needed to obtain a new warrant to commence the analysis again. If the updated version of Cellebrite became available a month after the first analysis, instead of a year later, there could be no complaint. During the oral hearing, counsel for Plummer acknowledged as much. I fail to see how Charter protection is engaged because of the extended length of time. It had no impact on privacy rights in the context of this case. Consequently, this variable is not constructive in analyzing the lawfulness of using the Cellebrite software on a second occasion.
[128] The approach approved in Nurse reflects the approach taken in a variety of earlier cases, including: R. v. Barwell, [2013] O.J. No. 3743, R. v. Neill, 2018 ONSC 5323 (ONSC) and U.S.A v. Viscomi, 2016 ONSC 5423. There are other cases where the courts have found a violation of s. 8 where police conducted the forensic examination of devices outside the time frames set out in the warrant, but those cases generally involved instances where the issuing justice provided a specific time frame for the actual forensic examination; see R. v. Little, 2009 CanLII 41212 (ONSC) and R. v. D’Souza, 2016 ONSC 5855.
[129] The facts here are very similar to the facts in Nurse. The police seized various electronic devices and kept them in an evidence locker. They then obtained a warrant that explicitly authorized the search of the data on those devices. The search was particularized and listed the types of data the police were interested in. While the warrant did not specifically authorize the creation of a forensic image of the various devices, the devices were forensically imaged and there is no suggestion that this was improper. Det. Ibbott’s evidence on this issue was that, in his view, the warrant authorized the removal of devices from the evidence locker, the creation of a forensic image and the return of the devices back to the locker.[^3] The later investigation of the devices was related to the specific investigation that resulted in the initial seizures. In other words, this is not a scenario where the police were conducting a further forensic examination for a purpose unrelated to the initial issuance of the warrant. In these circumstances, I find no breach of s. 8 of the Charter in relation to subsequent searches for data on the various devices.
(iii) Obtaining the Password
[130] The defence challenges the fact that police obtained a password for the applicant’s medical practice computer software from the software provider, without any prior authorization or other lawful authority.
[131] On March 24, 2016, the applicant was arrested and interviewed. During the interview, the police attempted to obtain the password to his work computer system directly from him. They told him quite explicitly that they did not need his consent, and that if he did not provide the password they would be “seizing it anyways.” On the advice of counsel, Dr. Otto did not provide the password.
[132] The police never obtained a separate warrant or assistance order for the password. Instead, they contacted the software provider and sought its assistance in gaining access to the computer system. Mr. Wu, a civilian computer expert employed by the police, testified that he was involved in setting up a police computer system that could operate as a platform for Dr. Otto’s medical practice software. In order to perform this task, Mr. Wu was in contact with Steven Christiansen, an employee of the software company that licensed the medical software in use by Dr. Otto. As I understand it, the software in question is essentially medical practice management software that contains information relating to patients, billing and the like.
[133] Mr. Wu and Mr. Christiansen worked together to set up the platform, with Mr. Christensen providing technical advice on which operating and data files were required in order to have system operating in a manner that mirrored what Dr. Otto’s computer would have looked like at his medical practice. In doing so, it was discovered the data was password protected.
[134] Mr. Wu was provided a username and password, though the details of his recollection on this issue are not clear. The username was “GO”, ostensibly for “George Otto”, and the password was “hs” followed by the year, month and day. The password appeared, at least to Mr. Wu, to be generic in the sense that the software was called HS Practice and the password was simply “hs” followed by the date. Mr. Wu indicated that software systems often have “backdoor” passwords that permit access even in the absence of a specific user password. That said, he did not know whether the password provided in this case was a “backdoor” password or Dr. Otto’s personal password. He did not know the criteria used by the software provider for creating passwords. He also did not know whether the police had any authority for obtaining this password.
[135] Det. Ibbott testified that when he first contacted the software provider, the person he spoke with was “gung ho” about assisting the police. Det. Ibbott asked for assistance in setting up the computer platform and the provider agreed to assist. Det. Ibbott testified that if the service provider had declined to assist, he could have sought either an assistance order or a production order. In the circumstances, Det. Ibbott felt he had done nothing wrong by asking the service provider for assistance.
[136] Against this factual backdrop, I turn to assessing whether the police violated Dr. Otto’s s. 8 rights in the manner by which they obtained the password for his medical practice software.
[137] I note at the outset that the police had a warrant that specifically authorized them to the search the data relating to his medical practice. That warrant authorized the police to access his computer for that purpose. Much like entering a secured premise the police would have been permitted to use reasonable efforts to enter his computer, including cracking or circumventing his password on the computer. If this was not the case, the warrant for the data would be meaningless.
[138] However, the fact that the police were implicitly authorized to circumvent or crack a password, does not automatically give rise to the proposition that there is no separate reasonable expectation of privacy in a password.
[139] In the digital age, there can be no argument that a reasonable expectation of privacy exists in a password that protects access to information. A cottage industry of security consciousness has developed around the need to adopt proper practices relating to passwords on all forms of electronic devices, and all forms of electronic communications and interactions. Indeed, it has become commonplace for a person’s digital or electronic presence to be governed by a number of passwords for various types of online activity, from shopping to email to Netflix, and also for access to devices from cell phones to computers.
[140] The defence argues that in this case, the software provider was not statutorily authorized to provide the information to the police. In this regard, the defence suggests that s. 6 of O.Reg. 329/04 in combination with the Personal Health Information and Protection Act, S.O. 2004 C.3, Schedule A, creates a duty on a software provider who is providing software to a “Health Information Custodian” as that term is defined in the Act, to safeguard and protect health information. In this case, the software provider was “gung ho” to help the police gain access to Dr. Otto’s medical practice software which obviously contained confidential medical information. While I do not know what the provider’s privacy policy consists of, I doubt that it freely permits the release of passwords granting access to medical records.
[141] While I need not finally determine whether the software provider violated any regulation or act by doing what it did in this case, I am satisfied that the regulatory backdrop does not suggest an absence of an expectation of privacy in the password. In this regard, I am guided by the analysis in R. v. Spencer, 2014 SCC 43, at paras. 60-65 where Cromwell J., speaking for the court, assessed the implication of PIPEDA in relation to whether a reasonable expectation of privacy arose in relation to a subscriber name for internet service.
[142] In this case, the police had a warrant to access the data but hit the roadblock of needing a password. In my view, had the police known about the need for a password when they obtained the April 18, 2016 warrant to examine the data, they should have obtained an assistance order under s. 487.02 compelling the software provider to assist by providing the password. While not squarely on point, reference to the use of an assistance order for this purpose can be found in other cases, see: R. v. Millard and Smich, 2016 ONSC 348 and R. v. Shergill, 2019 ONCJ 54.
[143] An assistance order is not a free-standing judicial authorization. It is an order that is available in combination with a wiretap authorization or search warrant, and can be issued where the justice is satisfied that the proposed assistance is reasonably required to give effect to the authorization or warrant. When exercised in combination with an authorization or warrant, the standard for judicial authorization, usually “reasonable grounds” found in the authorization or warrant, provides the core constitutional protection and the discretionary nature of the assistance order provides a secondary layer of protection. A justice “may” issue an assistance order even where satisfied that it is reasonably required.[^4]
[144] In this case, the police did not seek an assistance order because they did not know of the need for a password at the time of the warrant. However, when Det. Ibbott learned of this issue, instead of simply calling the software provider to obtain the password, he should have obtained a production order directed to the software provider. Indeed, on his evidence he acknowledged that had the software provider declined to assist, this is essentially what he would have done.
[145] In terms of gauging the nature of this breach, I note the following features. First, the police were lawfully authorized to get the password protected data. The password simply gave them access to what they were entitled to get. There is no suggestion that the password was linked to any other devices, or gave the police access to materials beyond the scope of the locker warrant. Second, had the police sought an assistance order it would have been readily authorized. There is no reason believe that the issuing justice would have concluded otherwise. Similarly, given the grounds set out in the ITO buttressed by further information from the software provider regarding the availability of a password, a production order would have also been readily authorized. Third, on this record it is possible that the password provided was a generic password or even a “backdoor” password. However, in view of the fact that the username is comprised of the applicant’s initials, it may be that there is some degree of specificity or uniqueness to the combination of the username and password. Unfortunately, the state of the record prevents me from finally determining this issue, especially as I received no evidence from the software provider. As such, I will treat the password that was provided to the police as being the applicant’s password.[^5]
(iv) The Failure to File a Report to Justice
[146] The Crown concedes a s. 8 Charter violation in relation to the police failure to file a Report to Justice in relation to the April 16, 2016 locker warrant, and in relation to the further warrant dated December 12, 2017 used to search Dr. Otto’s cell phone. Det. Ibbott’s testimony was that he did not believe that a Report to Justice was required, as one was filed when all the devices were initially seized under the warrants dated March 24, 2016. That Report to Justice was filed on April 14, 2016.
[147] In R. v. Barwell, supra, Paciocco J. (as he then was), discussed the interplay between a Report to Justice and a “locker warrant.” He explained at para. 18:
The flaw in this Charter challenge is that it fails to recognize that the law treats the initial search and seizure and subsequent forensic examinations separately. There are provisions authorizing the initial search and seizure of the item, such as Section 487 of the Criminal Code of Canada, relied upon to secure the warrant in this case. There are other separate and distinct provisions dealing with the detention of items, including detention "for the purposes of any investigation." Specifically, Sections 489(1) and 490 of the Criminal Code of Canada together require that when things have been seized pursuant to a warrant, the police officer shall, as soon as practicable, either bring the seized items before a Justice or file a report identifying the thing being detained and the reason for detention. And the Justice shall order that the thing be released or detained, including for the purposes of investigation. In other words, the search warrant provision deals with the time required for the initial search for an item and with its seizure. The detention provisions address how long the item can be kept for forensic analysis after the search is made for the item and it is seized. In my view, if there's a relevant breach that occurred here, it would have occurred if Detective Pelletier had failed to bring the items seized or a report before a Justice to be dealt with according to law and secure authority to detain the hard drives for forensic examination.
[148] A Report to Justice fulfills an important role in the judicial authorization process. As Fairburn J.A. recently noted in R. v. Canary, 2018 ONCA 304, at para. 45:
Section 489.1 should not be conceptualized as a meaningless exercise in paperwork. Filing the initial report under s. 489.1(1) is the act that places the property within the purview of judicial oversight. It provides for a measure of police accountability when dealing with property seized pursuant to an exercise of police powers. This provides an important measure of protection to the party who is lawfully entitled to the property, but also provides a measure of protection to the police who become the custodians responsible for the property seized.
See also: R. v. Garcia-Machado, 2015 ONCA 569 at para. 15, R. v. Townsend, 2017 ONSC 3435 at para. 72 and R. v. Neill, supra, at para. 80.
[149] The seriousness of the breach here is attenuated by the fact that the police filed an initial Report to Justice in relation to all the seized devices, and the fact that they undertook quick efforts to return a number of the devices to Dr. Otto through coordination with his counsel.
Summary of Findings
[150] In summary, I find the following s. 8 Charter violations:
a. A breach in relation to the failure to provide grounds in the ITO setting out a basis upon which the issuing justice could determine whether the devices seized from the home and on Dr. Otto incident to arrest would contain evidence of offences under investigation.
b. A minor or technical breach in relation to commencing the data scan of the applicant’s cell phone prior to issuance of the second warrant authorizing a search of the data. This is based on the assumption that the police needed the second warrant despite R. v. Nurse, supra.
c. A breach in relation to whether the ITO set out sufficient grounds to search the electronic devices for “photos.”
d. A breach in relation to the failure to seek an assistance order or production order in relation to obtaining the password for access to the applicant’s medical practice software.
e. A breach in relation to the failure to file a Report to Justice following the search of the electronic devices, including the continued or second search of the applicant’s cell phone.
[151] The application is allowed in accordance with these Reasons.
Justice J. Di Luca
Release Date: April 24, 2019
[^1]: The applicant does not directly challenge the grounds for the tracking warrant as he does not have standing to do so. On this issue, nothing produced by the tracking warrant engages Dr. Otto’s expectation of privacy. Dr. Otto does, however, have standing to challenge the transmission data warrant and production order as his data was seized pursuant the warrants/production orders.
[^2]: For the purposes of s. 24(2) of the Charter, while a causal connection is not required, it remains open to the defence to tender further evidence, if it is available, establishing a causal connection between the unlawful search for photographs on the cell phone and the discovery of the evidence sought to be tendered by the Crown.
[^3]: Det. Ibbott was cross-examined in relation to why he obtained a further warrant for one of the seized cell phones that was not initially searched. His evidence was to the effect that the police had attempted to image the phone initially but were unsuccessful so the phone was returned to the locker. Later, Det. Ibbott learned that a new process was available to attempt a further imagining of this phone. He instructed his technical assistants to see if the new process would work and discovered that it did. Once he learned that a forensic image could be obtained, he decided it was best to get a further warrant. In cross-examination, Det. Ibbott took the view that he needed a new warrant because the phone had been returned to the locker without a forensic image being completed. Assuming Det. Ibbott was correct, the Crown concedes that there was a violation of s. 8 of the Charter to the extent that the attempt to image the phone was commenced before the further warrant was obtained. That said, Det. Ibbott’s evidence on this point was that once he learned that the new process would work, he instructed his staff not to look at the results until a warrant was obtained. In view of R. v. Nurse, it is likely that Det. Ibbott did not need this further warrant in any event. Even if the warrant was required, the breach in this case would be at very best minor or technical. More importantly, I do not find that the fact that Det. Ibbott obtained a further warrant to take a forensic image of this phone supports the suggestion that the forensic imaging of the other devices was unlawful or improper.
[^4]: There is also a discretionary element read into the Code’s warrant and authorization provisions, see: Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 SCR 416.
[^5]: Even if the Crown had tendered sufficient evidence from which I could conclude that the password was purely a “backdoor” password, there may still be a live issue as to whether there is a reasonable expectation of privacy that attaches to the backdoor password based on a normative privacy analysis discussed in Spencer, Gomboc and other cases.