ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 18-0552
DATE: 2019 04 18
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
RAJA DOSANJH Applicant
COUNSEL: E. Maguire and J. Forward, for the Crown B.J. Greenshields and J. Greenspan, for the Applicant
HEARD: January 11, 2019
BEFORE: LEMON J.
RULING RE: SECTION 8 STANDING
RESTRICTION ON PUBLICATION
A Non-Publication Order is made pursuant to ss. 645(5) and 648(1) of the Criminal Code of Canada that publication of this ruling is prohibited.
The Issue
[1] The narrow issue on this application is whether Mr. Dosanjh has standing to challenge the constitutionality of the search and seizure of electronic data stored within a vehicle. The Crown alleges that vehicle was used in the commission of a first degree murder and that this data will assist in the identification of Mr. Dosanjh as the murderer.
[2] The Crown’s position is that Mr. Dosanjh cannot have standing to challenge any evidence obtained from the vehicle because he obtained the vehicle through false pretenses. Further, Mr. Dosanjh does not have standing to challenge admission of phone data from the vehicle because that data came from his passenger’s phone – not Mr. Dosanjh’s phone.
[3] Because of the upcoming trial, I provided counsel with my decision that Mr. Dosanjh had standing and said that written reasons would follow. These are those reasons.
Background
[4] For the purposes of this application, Mr. Dosanjh relies upon the Crown’s theory of the case against him. The case of R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696 at para. 32, confirms that a s. 8 applicant may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him. The applicant is not required to provide additional evidence in order to make out those same elements.
[5] That Crown’s theory is that on March 1, 2016, Aly Sunderani was murdered. Mr. Dosanjh is charged with first degree murder.
[6] The Crown acknowledges that this is a circumstantial identification case. The Crown submits that the issue is not whether Mr. Sunderani was murdered, or whether that murder was planned and deliberate. That is clear from the fact that Mr. Sunderani was killed outside the Guelph Comfort Inn during daylight hours. The automatic weapon the killer used was left behind at the scene. However, the Crown accepts that it must prove beyond a reasonable doubt that it was Mr. Dosanjh who committed the murder.
[7] The Crown submits that a number of pieces of evidence, when viewed as a whole, point to Mr. Dosanjh as the murderer. While there are many pieces of evidence, some evidence is more important than others.
[8] One of the significant pieces of evidence pointing to Mr. Dosanjh as the killer is the “Infotainment Evidence” gathered from an Infiniti QX60 motor vehicle. There are two separate pieces of evidence that were gathered from the QX60; GPS tracklogs and a contact list from the cell phone of Mr. Dosanjh’s brother-in-law, Dalvir Passi.
[9] Shortly after the murder, Guelph police located the QX60 at a rental agency called Zoom Rental in Mississauga. Police obtained the rental agreement for the QX60 that governed the rental on March 1, 2016. That rental agreement set out that Jaspinder Nagra was the lawful renter of the QX60 between March 1 and March 2, 2016. An additional driver, Avtar Nagra, was also authorized to operate the QX60. The contract stated that only the renter and additional driver were authorized to drive the vehicle. The contract also prohibited the vehicle from being used for any crime or for any illegal trade or transport. There was a specific prohibition that anyone who had given the agency a false name, age, driver’s licence, etc. could also not drive the vehicle.
[10] Jaspinder Nagra opened and signed the rental agreement with Zoom Rental. He provided his credit card, email and phone number. It is the Crown’s theory that Mr. Dosanjh subsequently used that rental agreement and held himself out to be Mr. Nagra. In this way, he fraudulently obtained the QX60 to use in the murder of Mr. Sunderani.
GPS Track Logs
[11] The QX60 SUV is equipped with an “Infotainment” system. This system is a combination entertainment and information system located in the dashboard of the vehicle. The Infotainment system can be paired with a cell phone to allow for hands-free calling and to allow music on the phone to be played on the vehicle sound system.
[12] Every time the QX60 was turned on, a GPS system recorded the latitude and longitude while the vehicle was in motion. The Infotainment system automatically created GPS tracklogs independent of any use of the actual GPS system.
[13] The tracklogs show that on March 1, 2016, that QX60 travelled from the parking lot of Zoom Rental to Mr. Passi’s family home. The vehicle remained turned on in the driveway for a number of minutes before driving to Guelph, Ontario. In Guelph, the vehicle drove around the north part of the city and stopped twice in two locations close to the Comfort Inn.
[14] Prior to the shooting, the tracklogs shows that the QX60 was parked in the Comfort Inn parking lot close to where Mr. Sunderani was shot. At the time of the shooting, the vehicle began to move and the tracklogs show its route out of Guelph. In particular, the QX60 then went to Mississauga, to a mosque, a strip mall, and then to the residence of Mr. Passi. The QX60 remained parked in the driveway of that residence overnight. The next day the tracklogs show that the QX60 was returned to Zoom Rental.
Phone Contact List
[15] Unlike the GPS tracklogs, the QX60 did not automatically record the contact list from Mr. Passi’s phone. The police extracted a contact list from the QX60 that included all of the contacts listed in Mr. Passi’s cellular phone. Mr. Passi’s contact list contained several contacts for Mr. Dosanjh, listed in different ways.
[16] The Crown’s theory is that Mr. Passi uploaded his contact list to the QX60.
[17] At the preliminary hearing, Mr. Passi testified that he “paired” his cell phone with the QX60 so that he could listen to his music on the vehicle’s stereo, as was his usual practice. This process of pairing would cause the contact list to be uploaded.
[18] At the time the contact list was added to the QX60, there is video surveillance of Mr. Dosanjh inside Zoom Rental. Mr. Dosanjh drove the QX60 from the Zoom Rental lot and Mr. Passi was the passenger. Later, Mr. Passi became the driver and Mr. Dosanjh the passenger.
[19] The Crown’s theory is that Mr. Passi drove the QX60 to the Comfort Inn in Guelph and Mr. Dosanjh executed Mr. Sunderani. Mr. Passi then drove the two back to Mississauga.
Analysis
[20] Both counsel rely upon R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608 and Chief Justice McLachlin’s analysis at paras. 10-12:
Section 8 applies “where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access.” To claim s. 8 protection, a claimant must first establish a reasonable expectation of privacy in the subject matter of the search, i.e., that the person subjectively expected it would be private and that this expectation was objectively reasonable. Whether the claimant had a reasonable expectation of privacy must be assessed in “the totality of the circumstances.” This approach applies to determining whether there is a reasonable expectation of privacy in a given text message conversation.
In considering the totality of the circumstances, four “lines of inquiry” guide the court’s analysis:
What was the subject matter of the alleged search?
Did the claimant have a direct interest in the subject matter?
Did the claimant have a subjective expectation of privacy in the subject matter?
If so, was the claimant’s expectation of privacy objectively reasonable?
Only if the answer to the fourth question is “yes” – that is, if the claimant’s subjective expectation of privacy was reasonable – will the claimant have standing to assert his s. 8 right. If the court so concludes, the claimant may argue that the state action in question was unreasonable. If, however, the court determines that the claimant did not have a reasonable expectation of privacy in the subject matter of the alleged search, then the state action cannot have violated the claimant’s s. 8 right. He will not have standing to challenge its constitutionality. [Citations removed.]
[21] A careful consideration of each of these factors is warranted but before that, I note that there is a significant difference between the text messages in Marakah and the circumstantial evidence gathered in a rental car. Some of the cases referred to by counsel are applicable to personal or employer’s laptop computers: see R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34. Others relate to computers within the home: see R. v. Reeves, 2018 SCC 56. The amount of information and privacy to be considered in those cases are quantitatively different than what we are dealing with here.
[22] In R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, Cromwell J. said at paras. 17-18:
We assess whether there is a reasonable expectation of privacy in the totality of the circumstances by considering and weighing a large number of interrelated factors. These include both factors related to the nature of the privacy interests implicated by the state action and factors more directly concerned with the expectation of privacy, both subjectively and objectively viewed, in relation to those interests. The fact that these considerations must be looked at in the “totality of the circumstances” underlines the point that they are often interrelated, that they must be adapted to the circumstances of the particular case and that they must be looked at as a whole.
. . . The reasonable expectation of privacy standard is normative rather than simply descriptive. Thus, while the analysis is sensitive to the factual context, it is inevitably “laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy.” [Citations removed.]
[23] The evidence that the Crown wishes to enter at Mr. Dosanjh’s trial is one round trip of a rental vehicle from Mississauga to Guelph and return. The other evidence is the contacts list from a third party’s use of the third party’s phone. Counsel submitted that there may be a different result depending on which source of evidence is considered. For the reasons that follow, I find that both sources of evidence support standing for Mr. Dosanjh.
What was the Subject Matter of the Alleged Search?
[24] Again, referring to Marakah, Chief Justice McLachlin said at paras. 14-15:
The first step in the analysis is to identify the subject matter of the search. How the subject matter is defined may affect whether the applicant has a reasonable expectation of privacy. Care must therefore be taken in defining the subject matter of a search, particularly where the search is of electronic data.
The subject matter of a search must be defined functionally, not in terms of physical acts, physical space, or modalities of transmission. As Doherty J.A. stated in R. v. Ward, a court identifying the subject matter of a search must not do so “narrowly in terms of the physical acts involved or the physical space invaded, but rather by reference to the nature of the privacy interests potentially compromised by the state action”. In Spencer, Cromwell J. endorsed these words and added that courts should take “a broad and functional approach to the question, examining the connection between the police investigative technique and the privacy interest at stake” and should look at “not only the nature of the precise information sought, but also at the nature of the information that it reveals”. The court’s task, as Doherty J.A. put it in Ward, is to determine “what the police were really after.” [Citations removed.]
[25] The Crown’s principal submission is that Mr. Dosanjh cannot have a reasonable privacy interest in a vehicle that is “stolen” or obtained by some criminal act, nor can he have a reasonable privacy interest in his brother-in-law’s phone. However, here, the topic is Mr. Dosanjh’s electronic information not the rental company’s vehicle or his brother-in-law’s phone. The Crown seeks to use information about Mr. Dosanjh and his connection to the murder as collected by the vehicle’s technology without his consent.
[26] The Crown is seeking to use the GPS data and the phone downloads to very directly connect Mr. Dosanjh to the murder. That is what the police are really after.
[27] In Reeves, the information in issue was within a computer seized from the residence of the accused’s estranged spouse. Karakatsanis J., at para. 31, found that “the police were not after the physical device (to collect fingerprints on it, for example), but rather sought to preserve and permit access to the data it contained.” Similarly, the subject matter is not the vehicle; the defence acknowledges that Mr. Dosanjh gave up any rights to the vehicle when he returned it to the rental agency. In my view, the subject matter is the electronic information that relates to Mr. Dosanjh, not simply a single trip of a rental vehicle and some random numbers unrelated to Mr. Dosanjh location and connections. While Mr. Dosanjh’s privacy interests may be diminished in these circumstances, I cannot find, on a balance of probabilities, that his interest is eliminated.
Does Mr. Dosanjh Have a Direct Interest in the Seized Information?
[28] Here, I look again to Spencer, at para. 50:
. . . .In the circumstances of this case, the police request to link a given IP address to subscriber information was in effect a request to link a specific person (or a limited number of persons in the case of shared Internet services) to specific online activities. This sort of request engages the anonymity aspect of the informational privacy interest by attempting to link the suspect with anonymously undertaken online activities, activities which have been recognized by the Court in other circumstances as engaging significant privacy interests.
[29] The information sought here is not much different than the subscriber information in Spencer; it connects Mr. Dosanjh to the murder when seen in the context of the other pieces of circumstantial evidence. I have no doubt that he has a direct interest in this information.
Did Mr. Dosanjh Have a Subjective Expectation of Privacy in the GPS Data and Contact List?
[30] In R. v. Jones, Côté J., writing for the majority, said :
[20] To begin, the subjective expectation requirement has never been “a high hurdle.” And for good reason. Overemphasizing the presence or absence of a subjective expectation of privacy cannot be reconciled with the normative nature of the s. 8 inquiry.
[34] . . . Further, as the application judge found, Mr. Jones and his co-accused used third-party names so as to “avoid detection or association with” the Text Messages. This suggests they intended their communications to remain private. Accordingly, we may infer that Mr. Jones had a subjective expectation of privacy in the subject matter of the search. [Citations removed.]
[31] The Crown submits that the steps taken by Mr. Dosanjh to hide his identity by using a false name, paying cash and deleting the calls on the phone show that he had no subjective expectation of privacy. The defence submits that those steps, as discussed by Côté J., show that Mr. Dosanjh expected that the electronic information connecting him to the offence would remain private. I agree. Mr. Dosanjh may have been incorrect in his belief, but I find that to be his belief.
Was Mr. Dosanjh’s Subjective Expectation of Privacy Objectively Reasonable?
[32] This is the real issue between the parties. As can be seen from Moldaver J.’s dissent in Marakah, reasonable people may differ on this important factor.
[33] In Marakah, the majority declared:
[24] The claimant’s subjective expectation of privacy in the subject matter of the alleged search must have been objectively reasonable in order to engage s. 8. Over the years, courts have referred to a number of factors that may assist in determining whether it was reasonable to expect privacy in different circumstances. The factors that figured most prominently in the arguments before us are: (1) the place where the search occurred; (2) the private nature of the subject matter, i.e., whether the informational content of the electronic conversation revealed details of the claimant’s lifestyle or information of a biographic nature; and (3) control over the subject matter. …
[31] The purpose of s. 8 is “to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state.” It follows that the potential for revealing private information is a factor to consider in determining whether an electronic conversation attracts a reasonable expectation of privacy and is protected by s. 8 of the Charter.
[32] In considering this factor, the focus is not on the actual contents of the messages the police have seized, but rather on the potential of a given electronic conversation to reveal personal or biographical information. For the purposes of s. 8 of the Charter, the conversation is an “opaque and sealed ‘bag of information.’” What matters is whether, in the circumstances, a search of an electronic conversation may betray “information which tends to reveal intimate details of the lifestyle and personal choices of the individual”, such that the conversation’s participants have a reasonable expectation of privacy in its contents, whatever they may be.
[38] Control, ownership, possession, and historical use have long been considered relevant to determining whether a subjective expectation of privacy is objectively reasonable. Like the other factors, control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest. Control is one element to be considered in the totality of the circumstances in determining the objective reasonableness of a subjective expectation of privacy.
[41] The cases are clear: a person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it. Even where “technological reality” deprives an individual of exclusive control over his or her personal information, he or she may yet reasonably expect that information to remain safe from state scrutiny. [Citations removed.]
[34] Further, in Jones the majority held at para. 45:
This case is akin to Spencer and TELUS in the sense that Mr. Jones’ decision to message Mr. Waldron necessarily leaves a trail of digital breadcrumbs with Telus. However, as in Spencer and TELUS, this does not eliminate Mr. Jones’ reasonable expectation that a service provider would keep the Text Messages private. Like the service provider in Spencer, the service provider here is subject to the provisions of PIPEDA, which strictly limit its ability to disclose information. As Spencer demonstrates, those limitations operate regardless of whether or not the target of the search is a subscriber of that particular service provider. Here, as in Spencer and TELUS, the only way to retain control over the subject matter of the search vis-à-vis the service provider was to make no use of its services at all. That choice is not a meaningful one. Focusing on the fact that Mr. Jones relinquished direct control vis-à-vis the service provider is accordingly difficult to reconcile with a purposive approach to s. 8. Canadians are not required to become digital recluses in order to maintain some semblance of privacy in their lives. I therefore conclude that the sender of a text message retains a reasonable expectation of privacy in records of text messages stored in a service provider’s infrastructure notwithstanding that he relinquished direct control over those messages. This result comports with contemporary social norms and a purposive approach to s. 8. … [Citations removed, emphasis added.]
[35] In R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, Fish J. said at paras. 44-46:
The remaining question is whether Mr. Cole’s subjective expectation of privacy was objectively reasonable.
There is no definitive list of factors that must be considered in answering this question, though some guidance may be derived from the relevant case law. As Sopinka J. explained in R. v. Plant:
In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.
The closer the subject matter of the alleged search lies to the biographical core of personal information, the more this factor will favour a reasonable expectation of privacy. Put another way, the more personal and confidential the information, the more willing reasonable and informed Canadians will be to recognize the existence of a constitutionally protected privacy interest. [Citations removed.]
[36] The Crown submits that one trip from a residence to a parking lot and back does not touch on Mr. Dosanjh’s biographical core of personal information. I disagree. Hypothetically, a trip is from a residence. Whose residence? His own? His mother’s? His adulterous girlfriend’s? To a hotel. But what hotel? With what reputation? And then a stop at a mosque. Not a church, or synagogue, or temple. And then to another residence where the same questions apply. As can be seen, such a single trip can reveal a host of intimate details, both individually and collectively, of an individual.
[37] The information from the contact list is not so expansive, but in this case, the information discloses at least one contact if not a friend and family. I can certainly foresee a wish to keep one’s list of friends private from the state.
[38] All of this information is taken by the car manufacturer without the consent (and, perhaps, knowledge) of the user. Without any steps by the driver, renter, or owner, the details of the trip are downloaded to the vehicle. The individual’s phone contact list is similarly downloaded with very little done by the individual. Just because that is the current technological reality within the vehicle should not mean that it can be used by the state without any standing of the individual to object.
[39] I am satisfied that Mr. Dosanjh’s expectation of privacy in that information is objectively reasonable.
Result
[40] For those reasons, Mr. Dosanjh is granted standing to argue whether his s. 8 rights have been breached and, if so, whether the evidence should be excluded at his trial.
Lemon J.
Released: April 18, 2019
COURT FILE NO.: 18-0552
DATE: 2019 04 18
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
RAJA DOSANJH
Applicant
RULING RE: SECTION 8 STANDING
Lemon J.
Released: April 18, 2019