Court File and Parties

Court File No.: CR-17-002740 Date: 2019-05-30 Ontario Superior Court of Justice

Between: Her Majesty The Queen And: George Otto, Defendant

Counsel: Geoffrey Roy and Amanda Hauk, for the Public Prosecution Service of Canada Daniel Stein, for the Defendant

Heard: April 25, 2019

Ruling on Charter Section 24(2) Application

DI LUCA J.:

[1] Dr. George Otto is charged with trafficking in fentanyl and possession of fentanyl for the purpose of trafficking. In an earlier Ruling reported at 2019 ONSC 2514, I addressed a Garofoli challenge to various search warrants and production orders used in this case. I found a number of Charter violations in relation to the search of certain electronic devices. Following release of that Ruling I heard submissions on whether evidence seized pursuant to the various judicial orders ought to be excluded under s. 24(2) of the Charter.

[2] These reasons explain why I am satisfied that despite the various breaches, the evidence is admissible.

[3] To recap, in my earlier Ruling I found the following s. 8 Charter violations:

a. A breach in relation to the failure to provide grounds in the Information to Obtain (“ITO”) setting out a basis upon which the issuing justice could determine whether each electronic device seized from the home and from 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 the issuance of a second warrant authorizing a search of the data, assuming a second warrant to search the data was even required in view of R. v. Nurse, 2019 ONCA 260. 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 to obtain the password for access to the applicant’s medical practice software. e. A breach in relation to the failure to file a second Report to Justice following the search of the electronic devices, including the continued or second search of the applicant’s cell phone.

[4] In terms of the evidence obtained pursuant to the various judicial authorizations, I note the following:

a. The Crown seeks to admit some documents found inside Dr. Otto’s home, including; a single sheet of paper that contains the names of certain patients who were prescribed and dispensed fentanyl and, patient labels and prescription pads; b. The Crown seeks to admit evidence obtained from Dr. Otto’s medical practice computer, specifically electronic medical files for certain patients who were prescribed fentanyl; c. The Crown seeks to admit a cell phone found inside Dr. Otto’s car, as well as certain documents including hand written prescriptions in the names of persons who were dispensed fentanyl by Ms. El-Azarak; and, d. The Crown is not seeking to tender any evidence seized from any of the electronic devices found inside Dr. Otto’s home or on his person incident to arrest.

[5] The defence seeks to exclude all the evidence seized and proposed for admission by the Crown. While the defence acknowledges that much of this evidence is not causally connected to the Charter violations, the defence argues that in view of the temporal and contextual connections, exclusion is nonetheless warranted.

The Section 24(2) Framework

[6] Dr. Otto bears the onus of establishing on a balance of probabilities that the admission of the impugned evidence would bring the administration of justice into disrepute.

(a) Obtained in a Manner

[7] Section 24(2) of the Charter permits exclusion of evidence where that evidence was “obtained in a manner” that infringed a Charter right. While the “obtained in a manner” component of the s. 24(2) analysis is usually established where there is a causal connection between the evidence seized and the Charter right violated, that is not always the case. The courts have interpreted the phrase “obtained in a manner” to also include temporal and contextual connections. As Fish J. explains in R. v. Wittwer, 2008 SCC 33, at para. 21:

In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, at p. 1005. The required connection between the breach and the subsequent statement may be ‘temporal, contextual, causal or a combination of the three’: R. v. Plaha (2004), 2004 ONCA 21043, 189 O.A.C. 376, at para. 45.

[8] This generous and purposive approach to the consideration of the “obtained in a manner” component of s. 24(2) was more recently affirmed by the Court of Appeal in R. v. Pino, 2016 ONCA 389, where Laskin J.A. directed the courts to consider the entire “chain of events” between the accused and the police to assess whether the evidence seized and the Charter breach are part of the same transaction or course of conduct. As long as the court can discern a causal, temporal or contextual connection that is not too tenuous or remote, s. 24(2) of the Charter will be engaged.

[9] In this case, the defence argues that there are sufficient causal, temporal and contextual connections between the evidence sought to be admitted and the Charter violations such that the court should find the “obtained in manner” test has been satisfied.

[10] I agree. In my view, there exists an arguable causal connection between the unlawful obtaining of the computer password and the seizure of the medical files on Dr. Otto’s work computer. The password was needed to gain access to the data on the medical practice software. There is no evidence before me suggesting that in the absence of the password, the police would have been able to access that data. Even in the absence of this causal connection, the obtaining of the password is temporally and contextually connected with the otherwise valid search of the work computer.

[11] The unlawful searches of the contents of the various devices found in Dr. Otto’s home and on his person, as well as the unlawful search for photos across all devices (except his work computer), are also temporally and contextually connected to the searches that resulted in evidence that the Crown seeks to tender. Lastly, the failure to file a Report to Justice is temporally and contextually connected to obtaining evidence from the seized devices.

(b) The Three Lines of Inquiry in R. v. Grant

[12] As the Supreme Court of Canada sets out in R. v. Grant, 2009 SCC 32, the focus of the s. 24(2) analysis is on the overall repute of the administration of justice and the public’s confidence in the justice system in view of the long term consequences of admission of unlawfully seized evidence.

[13] The analysis is necessarily prospective in nature. The various breaches of s. 8 of the Charter have already damaged the administration of justice. The issue is whether further damage to the administration of justice will be occasioned by the admission of the evidence.

[14] The focus of the analysis is not a case specific administration of punishment on the police or compensation for the accused. The analysis is objective. It asks whether a reasonable person informed of Charter values would find that the admission of the evidence in question would bring the administration of justice into disrepute.

[15] The analysis is comprised of three lines of inquiry. The first line of inquiry addresses the seriousness of the Charter-infringing state conduct. In this regard, I note the guidance of the Supreme Court in R. v. Grant, 2009 SCC 32, at paras. 74 and 75:

State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, 1995 SCC 89, [1995] 2 S.C.R. 297, per Cory J. ‘Good faith’ on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, 1989 SCC 109, [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, 1990 SCC 55, [1990] 3 S.C.R. 3, at pp. 32‑33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[16] The second line of inquiry assesses the impact of the violation on the accused’s Charter-protected interests. This line of inquiry requires an assessment of the nature of the Charter-protected interests engaged and the degree to which the Charter violation impacts those interests. In R. v. Morelli, 2010 SCC 8, at paras. 104 and 106, Fish J. provides the following guidance:

I turn in that light to the second factor set out in Grant: The impact of the breach on the Charter-protected interests of the accused. The intrusiveness of the search is of particular importance in this regard. Our concern here is with the search of the appellant’s home, in itself a serious breach of the appellant’s rights under s. 8 of the Charter. But there is more. The infringement in this case involved a search of the appellant’s personal computer — and his wife’s laptop computer as well. In passing, I recall here the Informant’s failure to mention that the appellant lived with his wife. This not only cast a dark light in the appellant’s presence alone with their child — perfectly understandable in the circumstances — but may also explain why the laptop, which was in fact not his, was seized and presumably scrutinized as well.

As I mentioned at the outset, it is difficult to imagine a more intrusive invasion of privacy than the search of one’s home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet.

It is therefore difficult to conceive a s. 8 breach with a greater impact on the Charter-protected privacy interests of the accused than occurred in this case.

[17] The third line of inquiry assesses the societal interest in an adjudication on the merits. This line of inquiry recognizes that society generally has an interest in having criminal charges adjudicated on their merits. In this regard, the court must ask whether vindication of a Charter violation exacts too great a toll on the truth-seeking function of the trial process: see R. v. Kitaitchik (2002), 2002 ONCA 45000, 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 47.

[18] The factors assessed in this line of inquiry include the reliability of the evidence, the importance of the evidence to the Crown’s case and the seriousness of the offence. On this last factor, the Supreme Court in Grant, 2009 SCC 32, at para. 84 has noted that the seriousness of the offence is a factor that cuts both ways:

It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. Indeed, Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society’s interest in its prosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus. As pointed out in Burlingham, the goals furthered by s. 24(2) ‘operate independently of the type of crime for which the individual stands accused’ (para. 51). And as Lamer J. observed in Collins, ‘[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority’ (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

[19] Once the various lines of inquiries have been determined, the role of the court is to assess whether on balance the admission of the evidence would bring the administration of justice into disrepute.

(c) Analysis

The Seriousness of the State’s Charter-Infringing Conduct

[20] The first line of inquiry looks at the seriousness of the state’s Charter-infringing conduct. The Crown’s overarching submission is that the police conduct in this case does not fall at the serious end of the spectrum. The police acted in good faith throughout the investigative process. While mistakes were made, the mistakes were honest and they were made in the context of searches involving modern technologies and evolving legal standards and procedures.

[21] The defence correctly notes that the absence of bad faith does not automatically give rise to a finding of good faith. In this regard, the defence notes that the police repeatedly failed to observe Charter standards, acted carelessly in crafting the various ITO’s and demonstrated a symptomatic lack of due care and concern given the serious nature of the Charter rights implicated. The defence argues that on the whole, while the police conduct may not be deliberately egregious, it nonetheless is serious, especially in view of the multiplicity of failings.

[22] I will start my analysis by assessing the nature of the police conduct in relation to the specific violations established on the evidence.

[23] In relation to the failure to specify sufficient grounds to search the various devices found inside Dr. Otto’s house, I find that the nature of the Charter-infringing state conduct is of moderate seriousness. While the police had a valid basis for initially searching the home to find the electronic devices, they essentially made no effort to provide the issuing justice with a basis for determining whether there were specific grounds available to search the contents of each device seized. In effect, the police proceeded as though the grounds presented applied to any and all devices found within the home, the car and on Dr. Otto. While in some cases it may be that officers will have grounds to search any and all devices found at a location based on the particular factual matrix presented, that was not the case here.

[24] The affiant should have offered some basis upon which the issuing justice could authorize the search of specific devices, or alternatively an explanation as to why the affiant believed the grounds applied to all devices located. Given the vast amount of deeply personal information that is available on electronic devices, the failure to do so in this case is serious. However, the failure is moderated in part because the police had sufficient grounds to search Dr. Otto’s work computers and his cell phone. While not articulated in the ITO, the police more than likely also had sufficient grounds to search the devices found inside the master bedroom and home office, though perhaps not the hard drives found in Dr. Otto’s son’s bedroom or the USB keys found on Dr. Otto incident to arrest.

[25] The failure is, subject to one issue, also moderated by the fact that the search conducted on the devices did not amount to an indiscriminate scouring. It was generally tailored to search for items authorized by the warrant, using search terms that related to the nature of the investigation. The one issue with the nature of the search conducted was that the police did not have sufficient grounds to search for photos on all the devices. That said, the warrant itself authorized them to search for photos and they conducted the search under the authority of the warrant as issued. The search for photos, while intrusive, did not result in any evidence. As well, Dr. Otto’s work computer was not searched for photos.

[26] In brief, I find that despite the failings of the ITO in relation to the search of the data on the various devices, the police did not set out to undermine the warrant process. To the contrary, they respected the warrant process and proceeded in stages of judicial authorization, first by getting a warrant that resulted in the seizure of the devices and then in getting a further warrant to search the content of the devices. The police demonstrated no bad faith in doing so.

[27] In terms of the technical breach in relation to commencing the data scan of Dr. Otto’s cell phone prior to obtaining the further warrant to search its contents, I find that the police conduct is not at all serious. It is a minor good faith breach that is readily understandable. As an aside, in view of the decision in R. v. Nurse, 2019 ONCA 260, it is arguable that the police did not require a second warrant to search the data. Nevertheless, they believed they needed one and indeed obtained one. This course of action is demonstrative of a police investigation that was undertaken with a view to respecting as opposed to ignoring Charter rights.

[28] Returning to the nature of the breach, the context is important. First, a warrant for the contents of that phone had already been obtained, but due to technological limits the police were unable to gain access to the data on the phone prior to the warrant’s expiry. After this initial failed search attempt, the police learned of certain technological advances which they believed would allow them to access the data on the phone. The police tested this belief and learned that data could be obtained from the phone. Upon this discovery, the police obtained a further warrant to review the results of the data scan. In order to safeguard the analysis, instructions were given to the technician conducting the data scan that no data was to be examined prior to obtaining the warrant. That is precisely what occurred.

[29] Viewed in this context, the nature of the Charter violation is technical at best. This is not a case where in so doing, the police demonstrated a disregard for Charter rights or established practices. Quite the contrary, the police were aware of and respected the need to search the contents of the phone under authority of a valid warrant.

[30] I turn next to the breach relating to the failure to obtain an assistance order or production order to obtain the password for Dr. Otto’s work computer. On this issue, I find that the police misconduct was not serious. The police sought and obtained the voluntary assistance of a software provider in order to devise a process for gaining meaningful access to data on the computer. As part of that voluntary assistance the police learned of the need for a password, and obtained a password from the software provider who was eager to assist the police with the investigation.

[31] In assessing the seriousness of this violation, it is important to note that the police had a valid warrant authorizing access to the data on Dr. Otto’s work computer. In order to access that data, the police would have been well within their authority to attempt to crack or circumvent the password on their own if they saw fit to do so.

[32] The password obtained from the software provider was used for the limited purpose of gaining access to the data on the work computer and for no other or improper purpose. This is not a scenario where the police improperly obtained a password and then used it to gain access to data beyond the scope of the warrant.

[33] Lastly, the police could readily have obtained an assistance or production order to compel the software provider to assist in precisely the fashion it did. While I accept that as a matter of law, the fact that the police could have obtained judicial authorization potentially cuts both ways, in this case, I am satisfied that the fact the police could have obtained an assistance order does not make the nature of the misconduct more serious. This issue is novel and has not been the subject of judicial consideration and/or direction. There is no hint or suggestion that the police were trying to circumvent the judicial authorization process.

[34] I turn next to the failure to file a Report to Justice following the search of the contents of the electronic devices. I do not find the conduct of the police on this issue to be serious. Again, the context is important. Following the initial seizure of the electronic devices, the police filed a Report to Justice on April 14, 2016. The Report to Justice accurately details the fruits of the search, including the fact that the various electronic devices were seized.

[35] Unfortunately, the police did not file a second or follow-up Report to Justice following the execution of the warrant that authorized the search of the contents of the devices. The officer responsible for filing the report indicated that he mistakenly assumed that as a Report to Justice had already been filed in relation to the initial seizure of the physical devices, a follow up Report to Justice was not required in relation to the search and seizure of the data on the devices. I accept the officer’s evidence on this point. There is no suggestion before me that this was anything other than an honest mistake.

[36] The case law has recognized that the Report to Justice performs an important role in the search warrant process. It not only provides a method of feedback to the court to assess the outcome of judicially authorized searches, but it also engages the provisions of s. 490 of the Criminal Code which provide for the continued custody of seized items and the return of seized items to interested parties as circumstances may warrant; see R. v. Garcia-Machado, 2015 ONCA 569, at paras. 48-55, R. v. Canary, 2018 ONCA 302, at para. 45 and R. v. Reeves, 2019 SCC 56, at para. 63.

[37] In this case, the failure to file a second Report to Justice is not overly significant. The original Report to Justice already satisfied the central goals of s. 489 of the Code. The court was made aware of the fact that the electronic devices were seized and their continued detention was authorized. Dr. Otto was also made aware of what was seized, and through his counsel he was able to arrange for the quick return of four computers related to his medical practice. While it obviously would have been preferable if the second Report to Justice had been filed, in my view the failure to do so when viewed within this context does not suggest an indifference to Charter rights.

[38] When I assess this line of inquiry cumulatively, I find that the police conduct was neither deliberate nor flagrant. The police did not set out to defeat Charter standards, nor did they demonstrate indifference to the Charter standards. Mistakes were made, but in context, they were not overly serious. This line of inquiry tips towards inclusion of the evidence.

The Impact of the Violations on Dr. Otto’s Charter Protected Interests

[39] In order to assess the impact of the violations on Dr. Otto’s Charter protected interests, it is important to keep in mind the scope of those violations. In this regard, I note the following. First, the police had a valid and proper authorization to search the contents of Dr. Otto’s work computers and cell phone. Second, the police had a valid authorization to search his home, car and medical office.

[40] The Charter breaches involve an unlawful search on a number of electronic devices that yielded no evidence. While the fact that the devices ultimately yielded no evidence does not in and of itself lessen the impact of the violations, the context of the searches is important. Dr. Otto was subjected to a number of significantly intrusive searches that directly yielded evidence. Those searches were causally untainted by Charter violations.

[41] Nonetheless, the search of electronic devices involves a significant impact on a person’s Charter protected interests. While Dr. Otto’s expectation of privacy may have been attenuated in relation to the devices found in the children’s bedroom, it was not attenuated in respect of the remaining devices.

[42] In terms of the password for the work computer, I am satisfied that Dr. Otto’s Charter protected interests were impacted. Assuming the password was specific to Dr. Otto and not a generic “backdoor” password, there is an obvious impact on Dr. Otto’s privacy interests. It goes without saying that passwords act as a gateway limiting access to potentially vast amounts of electronic data.

[43] Lastly, the failure to file a second Report to Justice has minimal impact on Dr. Otto’s Charter protected interests. Those interests were essentially protected by the filing of the first Report to Justice, as demonstrated by the return of his work computers a short time after their initial seizure.

[44] On the whole, this line of inquiry supports exclusion of the evidence.

Society’s Interest in Adjudication on the Merits

[45] Dr. Otto is alleged to have been a key player in a fentanyl trafficking scheme involving his medical practice, a pharmacist and a number of either complicit or unknowing “patients”. The scheme involved a significant quantity of fentanyl. It bears mention that the illicit fentanyl trade is responsible for hundreds, if not thousands of unfortunate deaths. There can be no issue that there is a significant societal interest in having this case tried on the merits.

[46] That said, I acknowledge that the seriousness of the charges does not always tip towards admission. In some cases, the seriousness of the charges demands a high degree of Charter compliance in order to ensure the long term repute of the administration of justice. This is not that case. In my view, the police did not treat the seriousness of the charges as a justification for failing to observe Charter rights. This is not a scenario where admission of the evidence impacts the long term repute of the administration of justice by sending the message that in serious cases, Charter rights can be safely ignored.

[47] The evidence sought to be admitted is reliable evidence and its exclusion will significantly, if not terminally impact the Crown’s case.

[48] When I consider the importance of the truth seeking function in this case, I find that excluding the evidence in order to vindicate the specific breaches of Dr. Otto’s Charter rights will exact too great a toll on the administration of justice. In my view, this line of inquiry tips towards admission.

Final Balancing

[49] In my view, the first line of inquiry supports admission of evidence. The second line of inquiry supports exclusion. The third line of inquiry also supports admission. When I balance the three lines of inquiry, I am not satisfied that admission of the evidence will bring the administration of justice into disrepute. To the contrary, I am satisfied that excluding the evidence in this case will bring the administration of justice into disrepute.

[50] The evidence is admissible.

Justice J. Di Luca Release Date: May 30, 2019