COURT FILE NO.: CJ-9373
DATE: 2019-08-02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. L.R. and J.J.T.
BEFORE: Justice D.A. Broad
COUNSEL: Jennifer Caskie and Katherine Enns, for the Crown
Harald Mattson, for the Applicant/Accused L.R.
Malcolm McRae, for the Applicant/Accused J.J.T.
HEARD: June 6 and 7, 2019
SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA
ENDORSEMENT re applications re alleged breaches of s. 8 of the Charter - production orders
Background and Nature of the Applications
[1] The applicants are jointly charged with uttering threats, assault, sexual assault, kidnapping, forcible confinement, and human trafficking in respect of a 15 year old complainant, G.C.
[2] Both accused have elected to be tried by judge alone with the trial currently scheduled to begin on October 7, 2019.
[3] G.C. provided a statement to police on August 6, 2017 in which she alleged that she was kidnapped on either July 31 or August 1 and was then assaulted, sexually assaulted and forced into the sex trade.
[4] G.C. told police that a group of four people were responsible for the offences, two females and two males. She advised that she had met the two females, the applicant Ms. R. and a fifteen-year-old, “E.R.”, a few months previously and that they had introduced her to that sex trade.
[5] G.C. told police that, during the week of her captivity, R. had arranged all the appointments by posting ads for her on a sexual services website and drove her to all of the appointments.
[6] G.C. did not know the names of the two males whom she alleged had assisted in the kidnapping and who had forced intercourse on her.
[7] As a result of the information provided by G.C., grounds were formed for Ms. R.’s arrest and she was arrested on August 14, 2017. The applicant, Mr. T., was arrested on August 23, 2017.
[8] On August 31, 2017, the Waterloo Region Police Service (“WRPS”) applied for and were issued two General Production Orders pursuant to s. 487.014 for the cell phone records of Mr. T. (directed to Rogers Communications) and Ms. R. (directed to Bell Canada) respectively. The data and information sought by police by virtue of the Production Orders consisted of subscriber information, phone call logs made by and received by each telephone number, as well as the text message history sent and received by each number. In addition, the police sought the cell phone tower site history for each phone number.
[9] The date range for which the data was sought was between May 1 and August 23, 2017.
[10] The applicants have brought applications challenging the Information to Obtain a Production Order (the “ITO’s”) filed by the WRPS support of each Production Order on the basis that the applicants’ rights under s. 8 of the Charter had been infringed and an order excluding all evidence obtained by virtue of the Production Orders pursuant to ss. 24(2).
[11] In the interests of judicial economy, the first phase of the applications respecting whether s. 8 of the Charter had been infringed by issuance of the Production Orders was argued on June 6 and 7, 2019. In the event that a s. 8 breach is found, the second phase of the application, dealing with whether the evidence obtained by virtue of the Production Orders should be excluded from the trial, will be argued on a later date in advance of trial.
Evidence in the Informations to Obtain
[12] In his ITO’s Detective Merrigan set forth various aspects of the investigation into the offences, as well as the summary of the reasonable grounds, to believe the various offences have been committed. Detective Merrigan stated that Ms. R. was arrested in front of a residential complex in the City of Kitchener on August 14, 2017 and that she was in possession of a cell phone at the time of her arrest which was seized and lodged into the WRPS evidence management repository.
[13] Detective Merrigan also deposed that a phone call was placed to a phone number that was linked to Mr. T. in NICHE and Detective DeMarte spoke to a male, asking to speak to “Jose,” and was given a number stated to be Jose’s phone number.
[14] The ITO’s further recited that Mr. T. attended at Central Division of the WRPS where he was arrested, following which he provided a statement to police. In the statement Mr. T. acknowledged that he had known Ms. R. for a while and that he had previously been in the rental car driven by her. T. initially stated that he did not have a cell phone. However, he eventually admitted that he did have one, that it was at his brother’s home, and admitted that the number given by the male referred to above was his cell number.
[15] Detective Merrigan deposed in the ITO’s that, based upon the facts recited, he had reasonable grounds to believe that the cell phone records to be seized will afford evidence of the offences. His stated grounds for believing that were that details of the account activity of the phone belonging to Ms.R. and the cellular number belonging to Mr. T. will provide investigators with valuable information in relation to the offences. He further deposed that he was seeking the account details including subscriber information and phone activity between the dates of May 1 and August 23, 2017, as those dates will cover the period of time from G.C. meeting Ms. R. and E.R. up until the arrest of Mr. T.. He stated that this time range will allow investigators to determine whether there was any pre-planning, as well as any communication between the accused parties, the victim and other involved parties prior to and involving the incidents.
[16] Detective Merrigan further stated that:
(a) phone call details will provide the following evidence:
(i) the history of phone calls made and received around the time that the offences were committed;
(ii) verification and corroboration of who Mr. T. was in contact with leading up to and following the offences;
(iii) communication between T. and other suspects prior to the assaults;
(iv) whether T. was in contact with an unidentified party for whom reasonable grounds exist to arrest; and
(v) whether T. contacted other potential witnesses to talk about R.’s arrest and his involvement ;
(b) text message details will provide the following evidence;
(i) identification of any other persons Mr. T. was in contact with prior to and following the offences and the phone numbers and identities of possible corroborating witnesses with whom Mr. T. had shared details of the offences;
(ii) whether Mr. T. contacted other potential witnesses to talk about Ms. R.’s arrest and his involvement; and
(iii) phone numbers associated to text messages may assist in identifying the outstanding accused party yet to be identified;
(c) cellular tower sites will provide the following evidence:
(i) the geographic area from which calls were made in text messages sent; and
(ii) comparison with the same information from the cell phone histories of the other involved suspects and will be used to link the suspects to the same geographic area at the time of the assaults.
[17] It is noted that the ITO did not set forth any evidence that the cell phones associated with the enumerated phone numbers were used in the commission of the offences, were in the possession of either applicant during the time of the offences, or that either applicant used a cell phone during the offence period.
Guiding Principles
[18] S. 487.014 of the Criminal Code provides that, before making a production order, the justice or judge must be satisfied by means of the information contained in the ITO that there are reasonable grounds to believe that:
(a) an offence has been or will be committed under the Code or any other Act of Parliament; and
(b) the document or data is in the person’s possession or control and will afford evidence respecting the commission of the offence.
(underlining added)
[19] The Supreme Court of Canada set forth the proper interpretation to be placed on the phrase “respecting the commission of the offence” in the case of CanadianOxy Chemicals Ltd. v. Canada (Attorney-General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743 at para. 15 as follows:
On a plain reading, the phrase "evidence with respect to the commission of an offence" is a broad statement, encompassing all materials which might shed light on the circumstances of an event which appears to constitute an offence. The natural and ordinary meaning of this phrase is that anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability falls within the scope of the warrant.
[20] There is no functional difference for this purpose between the phrase "evidence with respect to the commission of an offence" in the foregoing passage and the phrase “respecting the commission of the offence” in s. 487.014.
[21] The parties do not fundamentally disagree with respect to the principles governing the standard and scope of review applicable to the decision of the authorizing justice or judge in respect of a warrant or production order. The principles were very usefully summarized by Leach, J. in the recent case of R. v. Johnson, 2019 ONSC 1993 (S.C.J.) at para. 53. The pertinent principles for present purposes include the following:
(a) a production order issued by the justice is presumptively valid, and an accused alleging that the order was invalid bears the onus of demonstrating, on a balance of probabilities, the order’s alleged invalidity and any resulting s. 8 violation;
(b) the standard of persuasion to support issuance of a production order is one of credibly-based probability;
(c) mere suspicion, conjecture, hypothesis or “fishing expeditions” fall short of the minimally acceptable standard for issuing a valid production order. However, the standard of reasonable grounds is not to be equated with proof beyond a reasonable doubt or a prima facie case;
(d) an issuing Justice is entitled to draw all reasonable inferences from stated facts and the affiant of an ITO is not obliged to underline the obvious;
(e) it is necessary, but not sufficient, that the affiant of an ITO subjectively or personally believed in the accuracy and credibility of the grounds of belief. Reasonable grounds must also exist from an objective perspective;
(f) the inferences, conclusions and beliefs of the ITO affiant need not be the only reasonable wants to be drawn from the evidence. So long as the ITO affidavit contains reliable evidence that might reasonably be believed, on the basis of which the order could have issued, that is sufficient to confirm the validity of the warrant;
(g) the reviewing judge must not approach the question of the issuance of the order de novo simply substituting his or her view for that of the issuing justice. Rather, the test is whether there was reliable evidence that might reasonably be believed, on the basis of which the authorization could properly have issued;
(h) where the validity of the order is challenged on the basis of alleged “facial invalidity”, as is the case in this matter, the reviewing judge is required to examine the ITO affidavit and determine whether, on the face of the information disclosed within its four corners, the justice could have issued the search warrant. The record is not enlarged or amplified by any additional evidence;
(i) if, based on the record which was before the authorizing justice, the reviewing judge concludes that there was at least some evidence that might reasonably be believed, on the basis of which the order could properly have been issued, then he or she should not interfere;
(j) in assessing the sufficiency of grounds offered in the ITO, a reviewing court must assess those grounds in their totality; and
(k) if the applicant satisfies his or her burden of demonstrating the alleged invalidity of an order, a search carried out pursuant to the order will constitute a prima facie breach of section 8 of the Charter.
[22] The Crown acknowledges, as a preliminary matter, that both applicants have standing on the basis that they had a reasonable expectation of privacy in respect of the phone records relating to each of the subject telephone numbers.
Position of the Applicants
[23] Both applicants take the position that the date range set forth in the ITO, namely May 1 to August 23, 2017 is overly broad. They argue that the incidents which comprise the subject matter of the offences are alleged to have occurred between July 31 or August 1 and August 6, 2017. They submit that the ITO does not set forth any evidential foundation for a reasonable belief that the cell phone records for any time prior to July 31 could assist in the investigation of the offences.
[24] In addition, the applicant Mr. T. takes the position that there were no grounds at the time the Production Orders were applied for to believe that there would be information found in the cell phone records relevant to the offences. Specifically, there was no evidence leading to a reasonable belief that the phones associated with either number were in the possession of either applicant at the time of the commission of the offences, that they used those phones to communicate with one another or anyone else relating to the offences, or that they had any information on those phones that might be relevant to the commission of the offences.
[25] Mr. McRae for Mr. T. submits that the law has not evolved, nor should it evolve, to a point where a reasonable belief that persons have acted in concert to commit criminal offences would, by itself, support reasonable grounds to believe that information relevant to the commission of those offences may be located on their cell phones.
[26] He argues that the evidence put forward by police in the ITO constitutes a mere suspicion that the cell phone records will afford evidence respecting the commission of the offences and therefore represents a “fishing expedition.”
[27] In support of the foregoing position, Mr. McRae relies heavily on the case of R. v. Mahmood, 2008 CanLII 51774 (ON SC), [2008] O.J. 3922 (S.C.J.), a decision of M. G. Quigley, J.
[28] The applicants in Mahmood were three accused charged with conspiracy to commit robbery and possession of stolen property in relation to the robbery of a jewelry store. The police obtained, among other warrants, a “tower dump” production order which required four cellular phone service providers to produce all records of all cellular phone traffic that had passed through two cellular phone towers located in the vicinity of the crime for the hour and a half that preceded the robbery. The warrant yielded detailed cellular phone data relating to over 7,000 separate cellular phone subscribers who had used their cell phones in the vicinity of the two towers at that time. It also placed two of the co-accused in the vicinity of the robbery and showed extensive communications between them and others in the time just before the store was robbed (see para. 3).
[29] At para. 85, Quigley, J. observed that courts have repeatedly held that “mere suspicion” does not amount to reasonable and probable grounds and that a warrant cannot authorize fishing expeditions. Moreover, the fact that evidence may be found in a particular location or in the possession of particular persons that could substantiate charges will nevertheless form an inadequate basis to justify the issuance of a search warrant in the absence of a reasonable belief or reasonable probability that amounts to more than mere possibility or hope of obtaining material evidence of the commission of a criminal offence.
[30] The Crown in Mahmood acknowledged that there was no direct evidence at the time of the ITO demonstrating cellular phone usage by the accused, but argued that the evidence of the manner in which the robbery was carried out circumstantially demonstrated the necessity for some communication between the first two robbers and the robber who subsequently arrived at the scene. On this basis the Crown argued that the authorizing justice could have concluded that reasonable grounds existed to believe that a record of cellular communications in the area of the jewelry store at the time of the robbery would afford evidence of the commission of the offence (see para. 89).
[31] Justice Quigley did not accept this submission.
[32] At para. 91 of his decision he noted that police had no credibly-probative evidence that a cellular telephone was used in the robbery, let alone evidence that the telephone records of the applicants or any other particular persons would provide evidence relevant to the offence. He observed that, at its highest, the facts set out in the ITO amounted to “a little more than somewhat educated guess work styled as an evidentiary foundation upon which a warrant could issue.”
[33] Mr. McRae argues that the case at bar is no different than the situation in Mahmood. As was the case in Mahmood, the ITO did not show any evidence that either applicant ever used the phones associated with the numbers in or around the time of the offences or to communicate with one another. The police simply rely upon an inference, or an assumption, that because the applicants are alleged to have acted in concert in the commission of the offences, they necessarily had the phones in their possession and used them to communicate with each other at the relevant times in relation to the commission of the offences. On the authority of Mahmood, this type of inference or assumption amounts to mere suspicion and cannot support the issuance of a production order.
Position of the Crown
[34] With respect to the date range on the Production Order, the Crown argues that the applicants interpret the requirement that the phone records provide evidence “in respect of” the commission of the offence too narrowly. Although content in the phone records prior to the alleged offence is unlikely to be evidence in and of itself to form part of the Crown’s prima facie case, communication and relationship between some or all of the parties is evidence “in respect of the offence” and, taken with the statements of the various parties, could reasonably be believed to be evidence of the commission of the alleged offences. Information derived from cell phone records prior to the dates of commission of the alleged offences is therefore relevant and rationally connected to the offences charged.
[35] In response to Mr. T.’ submission based upon the lack of evidence of cell phone possession or use by the applicants at the time of the commission of the offences, Ms. Caskie for the Crown, relies heavily on the case of R. v. Canadian Broadcasting Corp., 1992 CanLII 12752 (ON SC), [1992] O.J. No. 2229 (Ont. Ct. Gen Div.), a decision of Moldaver, J., as he then was.
[36] In C.B.C. the police, in the course of investigating a riot which erupted in downtown Toronto, obtained warrants for production by media outlets of unpublished videos and photographs of the event in order to secure evidence of persons committing specified criminal offences and also to secure evidence of the identity of those responsible for the various crimes.
[37] The applicant media outlets challenged the validity of the warrants executed upon them, on the basis that the information failed to set out reasonable grounds upon which the issuing judge, acting judicially, could be satisfied that the material seized would afford evidence with respect to any of the unsolved offences specified in the warrants and information.
[38] The applicants argued that (1) there was no indication as to where the cameramen or photographers were during the disturbance, (2) the informant did not point out what was in the material that would cause him to believe that the unpublished on broadcast material would contain evidence of the commission of any of the offences, (3) with two exceptions, there was no indication for any basis for believing that the applicants’ representatives were present during any of the specified offences, and (4) the ITO was devoid of any indication that the applicants’ photographers or cameramen took pictures or videos of the commission of any offence.
[39] The Crown submits that Mr. T.’ position in the case at bar is similar to the arguments unsuccessfully advanced by the applicants in CBC.
[40] At page 8 of C.B.C., Moldaver, J. agreed that the information failed to set out reasonable grounds upon which the judge, acting judicially, could be satisfied that the material seized would afford evidence of persons actually committing any of the specified offences. However, he noted that that analysis does not accurately reflect that the scope of s. 487(1)(b) of the Criminal Code, citing Re Bell Telephone Company of Canada, (1947) 1947 CanLII 374 (ON SC), 89 C.C.C. 196 (Ont. H.C.) in which it was held that “it is not necessary that the thing in itself should be evidence of the crime, but it must be something either taken by itself or in relation to other things, that could be reasonably believed to be evidence of the commission of the crime.”
[41] Moldaver, J. made specific note that, according to the information, representatives of the applicants were present during the entire period of the rioting. He stated that “in view of this, I am satisfied that it was open to the issuing judge to believe on reasonable grounds, that some of the photographs or videos would capture at least some of the persons responsible for some of the crimes, albeit perhaps at locations distant from scene (sic) of the actual crime.”
[42] Ms. Caskie submits that Mahmood takes too narrow of a view of what evidence respecting the commission of the offence is.
[43] Ms. Caskie also points to the case of R. v. Lattif, 2015 ONSC 1580 (S.C.J.) a decision of Nordheimer, J., as he then was. The applicant was charged with weapons and other offences. He sought to exclude his cell phone records that the police obtained in relation to an unrelated investigation into a series of bank robberies in which the applicant was believed to have been involved.
[44] Justice Nordheimer noted at para. 16 that the police had already obtained cell phone records for another perpetrator which revealed that that perpetrator’s phone had contact with the applicant’s phone on multiple occasions in the hours leading up to each of the bank robberies. The police knew that the other perpetrator’s phone was in the area of the bank robberies, knew that both of them had criminal records for bank robberies and knew that the robberies that had been committed by both of them in the past had a similar method or pattern.
[45] At para. 19 and 20, Nordheimer, J. held that the police had sufficient information to sustain a reasonable belief that both the applicant and the other perpetrator were involved in the bank robberies. The applicant’s cell phone records would supply relevant evidence regarding the offences in the sense that they would either put him in the area of the bank robberies or they would not. In either event, the information would assist the investigation. The relevant section of the Criminal Code requires that the information “will afford evidence respecting the commission” of the offence. The information may inculpate or may exculpate the person. In either event, the information provides evidence respecting the commission of the offence.
Analysis
(a) Reasonable and Probable Grounds
[46] I propose to deal first with the argument advanced by Mr. McRae, on behalf of Mr. T., that there was no evidence in the ITO upon which reasonable grounds to believe that information respecting the commission of the offences may be located on the applicants’ cell phones or in cell phone records
[47] I am not persuaded that C.B.C. and Lattif are determinative of the issue. Nor am I persuaded that Mahmood adopts too narrow an approach to of what evidence respecting the commission of the offence constitutes.
[48] As noted above, Moldaver, J. in C.B.C. founded his observation that it was open to the issuing judge to believe on reasonable grounds that some of the photographs or videos would capture persons responsible for the crimes, on the evidence that representatives of the applicants were present during the entire period of the rioting. It therefore is not analogous to the situation at bar where there was no evidence at all that the applicants were in possession of the phones, or used them during the commission of the offences or during the time surrounding the offences.
[49] Moreover, Moldaver, J., at p. 9 of the decision, emphasized that it was very fact specific and was also “dependent upon the fact that representatives of the applicants were present throughout the course of the riotous conduct and that many of the victims were certain that they can identify those responsible are given the opportunity.”
[50] Similarly, the evidence in Lattif demonstrated that the police knew that the applicant had been in contact, via his cell phone, with the other perpetrator in the hours leading up to the bank robberies. It was not a case where there was no evidence of cell phone use by the applicant at the relevant time.
[51] Counsel was unable to assist with respect to whether Quigley, J.’s reasoning in Mahmood has been applied in subsequent case-law.
[52] Of note is the recent case of R. v. Knight, 2018 ONSC 2327 (S.C.J.), a decision of Sosna, J., which followed Mahmood.
[53] The two applicants in Knight were charged with first-degree murder, conspiracy to commit murder, and arson in relation to the death of one of the applicant’s spouse. During the investigation, and culminating in the applicants’ arrest, police sought and obtained several search warrants including a production order requiring telecommunications providers to deliver phone numbers and toll records related to the accused before, during and after the homicide. The applicant sought to exclude the evidence obtained in the warrants.
[54] Sosna, J. applied the reasoning of Quigley, J. in Mahmood, noting that the ITO’s sworn in support of the warrants did not provide reasonable and probable grounds from which a search warrant could issue. The police had no credible probative evidence that any unknown cellular phone was used by the perpetrator near the victim’s home and had no information that any person involved in the victim’s death used a cell phone before, during or after the murder and arson.
[55] Sosna, J. found that, at best, the ITO speculated that a cell phone may have been used by an individual or individuals present in the home when the murder occurred and also speculated/suspected that the phone number sought under the warrant may provide the investigators with phone numbers used by the perpetrators or individuals holding direct knowledge of the murder.
[56] Sosna, J. found s. 8 breaches arising from the ITO’s lack of reasonable and probable grounds, adopting at para. 45 Quigley, J.'s observations at para. 91 of Mahmood as follows:
At its highest, the 'facts' set out in the ITO prepared in support of the Tower Dump Warrants amounted to little more than somewhat educated guesswork styled as an evidentiary foundation upon which the warrant could issue.
[57] In my view, the same observation can be made about the evidence put forward in the ITO’s in the case at bar. Although, as set forth above, the phrase "evidence with respect to the commission of an offence" has a very broad meaning, it is equally clear that mere suspicion will not suffice to support issuance of the Production Order. In my view, the evidence in the ITO in this case falls on the side of mere suspicion.
[58] On the basis of the foregoing I find that the applicants have discharged their onus of showing on a balance of probabilities the invalidity of the Production Orders and the resulting s. 8 violation.
(b) Alleged Overbreadth
[59] I am not persuaded that the Production Orders were over broad in reference to the time period covered by them. The rationale for selection of the length of time specified was set forth in the ITO, as referred to above. I do not find the period to be objectively unreasonable. Moreover, I accept the Crown’s submission that there is no requirement that the phone actually be used as an instrument of the offence or indeed at the time of the offence for it to contain “evidence in respect of the offence.” The applicants’ were unable to point to any authority for the proposition that the period covered by the Production Order must match the charge period for the alleged offences.
Generally
[60] Having found a s. 8 breach on the basis of the ITO’s lack of reasonable and probable grounds, a s. 24(2) review is necessary to determine whether the evidence obtained by virtue of the Production Orders is admissible at trial.
[61] My reasons for decision in respect of the s. 24(2) review at the second phase will, together with my reasons set forth above on the first phase related to the breach of s. 8, constitute my reasons for disposition of the application.
D.A. Broad, J.
Date: August 2, 2019