INTRODUCTION

[1] Mr. Sinnappillai was charged with luring a minor, through text messages, for the purposes of prostitution and sexual touching. When he was arrested the police seized a Samsung cell phone from him. When his trial began he argued that the Crown should not be permitted to use in evidence the data the police extracted from it.

[2] More particularly, Mr. Sinnappillai challenged the validity of the warrants obtained by the police to search the Samsung. He also objected to the manner in which the searches were conducted. He sought to exclude from his trial any evidence seized from the phone. At the same time, the Crown sought a ruling permitting it to adduce all the evidence seized from the phone, some of which is presumptively inadmissible evidence of bad character.

[3] The parties’ applications were heard immediately following jury selection. I gave a bottom line ruling on both applications straight away, so that the trial could proceed with as little interruption as possible. I dismissed the defence application to exclude the evidence seized from the Samsung and I granted the Crown’s application to adduce it. I promised to provide written reasons for my decisions. These are the reasons.

OVERVIEW

[4] In the Spring of 2016, officers of the York Region Police Service, Drugs and Vice Unit, conducted a sting operation they dubbed “Project Raphael”. They targeted individuals who purchased the sexual services of prostitutes under the age of 18.

[5] The officers posted an advertisement on a website called “backpage.com” which had a section dedicated to escort services. Their ad purported to be placed by an 18 year old sex trade worker named “Kathy” who was offering sexual services in exchange for money. The ad included a telephone number that prospective clients could use to contact Kathy.

[6] “Kathy” was, in reality, an undercover police officer. In this case, the officer involved was Detective Sergeant (now Inspector) Ryan Hogan.

[7] On March 25, 2016 at just after 10:00 p.m., Insp. Hogan received a text communication from someone using phone number 647-609-0460 (the “Client”). The Client indicated that he was interested in purchasing a half hour of Kathy’s sexual services. A short negotiation ensued. Insp. Hogan advised the Client that “she” was in fact only 15 years old and asked if that was okay. The Client responded, “Don’t worry I like”.

[8] The Client was provided directions to the Homewood Suites hotel in Markham, room 406, where a number of police constables awaited him. Mr. Sinnappillai arrived at room 406 just before midnight and was promptly arrested, based on an inference that he was the Client. A Samsung cell phone was seized from him. Constable Christopher Morrison used a police phone to call the Client’s number, 647-609-0460. When he did so, the phone seized from Mr. Sinnappillai began to ring.

[9] Mr. Sinnappillai was charged with two counts of luring – one for the purpose of obtaining, for consideration, the sexual services of a person under the age of 18 and one for the purpose of facilitating the offence of invitation to sexual touching.

[10] The police obtained a warrant to search the Samsung phone to determine if a record of the text conversation with Insp. Hogan could be located in it. It was. The police obtained a second warrant to search the phone when they became concerned that Mr. Sinnappillai may raise, as a defence, an inability to understand the English language. At the time of his arrest he told the arresting officers that he did not speak English, only Tamil. Subsequently, he was assisted at the preliminary hearing by a Tamil interpreter. With the second warrant, the police were looking for, and found, other text communications written in English. The subject matter of many of those communications appears to involve prostitution.

THE WARRANTS

[11] To understand Mr. Sinnappillai’s application to exclude evidence, it is necessary to know something about the warrants obtained by the police and the searches of the Samsung phone in execution of those warrants.

[12] Almost everyone is by now familiar with the amazing array of functions that modern cell phones are capable of performing. Less people – though I suspect the number is growing – are alive to the fact that, commensurate with those functions, cell phones are repositories of immense amounts of core biographical data. They can reveal, amongst other things, where one has been and when; who one has talked to, when, for how long and sometimes what was said; who one’s associates are; and what websites one frequents. Cell phones are meticulous and reliable record-keepers.

[13] Law enforcement agencies are well aware that cell phones are frequently rich sources of evidence. Indeed, I would say anecdotally, that cell phone data now features prominently in a significant percentage of criminal cases tried before Ontario courts. It is certainly the central feature of this case.

[14] As a general rule, agents of the state are not entitled to simply seize a person’s phone and peruse it at will: see R. v. Fearon, 2014 SCC 77.

[15] To search and seize data from a cell phone, police investigators generally require judicial pre-authorization in the form of a search warrant. In this case the police obtained two separate warrants to conduct two searches of the Samsung phone seized from Mr. Sinnappillai.

[16] Insp. Hogan had used a police-issued phone to communicate by text with the Client. His phone had a detailed record of the conversation between “Kathy” and the Client. The police were naturally interested to determine if the Samsung phone had a matching record of the same conversation.

[17] On April 22, 2016, Detective Constable Michael Manhas, the officer in charge of this investigation, applied for a warrant, under s. 487 of the Criminal Code, to search the Samsung phone for evidence of the conversation in issue. His application was based on a sworn Information to Obtain (“ITO”) in which he set out his reasons to believe a criminal offence had been committed and that evidence of the offence would likely be found in the phone.

[18] A warrant was granted that same day authorizing the police to conduct a limited search of the Samsung phone. (Warrant #1).

[19] Warrant #1 was prepared on one of the Criminal Code’s designated forms, Form 5, or at least a former iteration of that form. It has since been amended. The issued warrant included the following provisions:

WHEREAS it appears upon the information of Detective Constable B.M. Manhas that there are reasonable grounds to believe that there are in Samsung Cellular phone with Tag A1101961 at Central Property Room, York Region Police HQ, 47 Don Hillock Drive, Aurora, Ontario, herein called the premises, certain things namely: Phone logs, web browsing history, and text messages with the undercover officer for the 25th of March 2016 that (sic) being sought as evidence in respect to the commission of an offence against the Criminal Code.

THEREFORE, this is to authorize and require you, between the hours of 10:30 a.m. on April 22, 2016, 45 days (sic), to enter into the premises and to search for and seize the above things, and to bring them before me or some other justice to be dealt with according to law.

[20] The alleged offences were described in Appendix “A” to the warrant. They included two counts of luring and one count of attempting to purchase sexual services from a person under 18 years of age. This latter charge was subsequently dismissed at the request of the Crown.

[21] Warrant #1 was delivered to Kyle MacLean, a civilian member of the York Region Police Service working in their Tech Crimes unit, along with the Samsung phone, on May 4, 2016 for analysis.

[22] Mr. MacLean testified that on May 9, 2016 he hooked the phone up to a piece of hardware called a UFED, which is an acronym for “universal forensic extraction device”. The device is manufactured and sold by an Israeli company called Cellebrite. It comes with software that Mr. MacLean used to extract data from the Samsung phone.

[23] According to Mr. MacLean, the software lacks the capability to extract only a portion of the contents of the phone. In the result, his practice – and the procedure he used in this case – was to extract as much of the contents of the phone as possible. He essentially created a mirror image of the device’s hard-drive. That image was then stored on a secure police server.

[24] After conducting an extraction on the Samsung phone, Mr. MacLean then searched the image for the specific data authorized by the warrant. In doing so, he was able to obtain a call history and he located the series of text messages exchanged between the Client and Insp. Hogan on March 25, 2016. He was unable to obtain any web browsing history. Mr. MacLean prepared a report on May 10, 2016 setting out the results of his analysis for Detective Constable Manhas. He continued to store the image of the phone’s hard drive on a secure server.

[25] Section 489.1(1)(b) of the Criminal Code requires that when personal property is seized by the police – whether pursuant to a warrant or otherwise – the police must either present the seized items, or a report of them, to a justice of the peace to be dealt with in accordance with s. 490(1)(b) of the Code. Section 490(1)(b) provides for judicial oversight of any seized items. It authorizes the justice of the peace to order any seized item returned to its lawful owner or otherwise detained. In this instance, when the Samsung phone was initially seized from Mr. Sinnappillai at the time of his arrest, the police provided a report to a justice of the peace in accordance with s. 489.1(1). The justice ordered that the cell phone be detained pending the completion of the proceedings against Mr. Sinnappillai.

[26] The police did not provide a further report back to a justice of the peace regarding any data seized from their search of the cell phone, notwithstanding the express language of Warrant #1 which required that the police “bring [the seized items] before me or some other justice to be dealt with according to law.” Such a requirement is consistent with s. 489.1(1)(b) of the Code.

[27] A preliminary hearing was conducted in relation to the charged offences on March 17, 2017. Mr. Sinnappillai was assisted throughout the preliminary hearing by a Tamil interpreter. Investigating officers became concerned about the prospect that Mr. Sinnappillai may raise, as a defence, an inability to communicate in the English language. They determined that they would like to search the Samsung again to see if they could find other text conversations in English that might support their assertion that Mr. Sinnappillai was capable of communicating in English and was therefore more likely to be the person who used the Samsung to communicate with Insp. Hogan.

[28] A second warrant application followed, again supported by an ITO authored by Detective Constable Manhas. A second search warrant was issued on February 14, 2018 (Warrant #2), again on the former iteration of Form 5. It included the following provisions:

WHEREAS it appears upon the information of Detective Constable B.M. Manhas that there are reasonable grounds to believe that there are in Samsung Cellular Phone with Tag A1101961 at Central Property Room, York Region Police HQ, 47 Don Hillock Drive, Aurora, Ontario, herein called the premises, certain things namely: Text message conversations saved on Samsung Cellular Phone with Tag A101961 that (sic) being sought as evidence in respect to the commission of an offence against the Criminal Code.

THEREFORE, this is to authorize and require you, between the hours of 3:00 p.m. on February 14, 2018 to 8:59 p.m. on February 15, 2018, to enter into the premises and to search for and seize the above things, and to bring them before me or some other justice to be dealt with according to law.

[29] On February 15, 2018, sometime prior to 5:00 p.m. Detective Constable Manhas retrieved the Samsung from the police property room and provided it and Warrant #2 to Mr. MacLean for further analysis. On February 22, 2018 Mr. MacLean accessed the image he had created of the Samsung’s hard drive on May 9, 2016 and he searched it for the additional text messages authorized by second the warrant. He found a number of text messages and prepared a report that same date for Detective Constable Manhas. Again, there was no report back to the justice of the peace regarding the results of the second search. Mr. MacLean continued to save the imaged hard drive on a secure police server.

THE ISSUES AND THE PARTIES’ POSITIONS

[30] Mr. Sinnappillai raises a number of objections in relation to the manner in which the warrants were obtained and/or executed. Those objections may be summarized as follows:

(a) It is conceded that there were sufficient grounds to issue Warrant #1. Mr. Sinnappillai argues, however, that the police breached the terms of that warrant (and s. 489.1(1)(b) of the Criminal Code) by failing to report back to the justice of the peace with regard to the data seized and the fact that they intended to retain the image of the phone’s hard drive;

(b) The police had no authorization to retain the image of the phone’s hard drive and doing so was a breach of Mr. Sinnappillai’s s. 8 Charter right. Extracting an image of the hard drive is, in the submission of the defence, effectively a seizure of the entire contents of the phone;

(c) There were insufficient grounds to support the issuance of Warrant #2. The police had no reasonable basis to believe that they would find texts in the Samsung phone written in the English language. They could merely speculate that there might be;

(d) Warrant #2 authorized the police to search the Samsung phone. The police did not do so. Instead, Mr. MacLean searched the image of the hard drive that he had made months earlier. He was not authorized to do so and, in the result, his search was not authorized by law and constituted a breach of Mr. Sinnappillai’s s. 8 Charter right;

(e) The police failed to conduct their second search of the Samsung within the time frame specified in Warrant #2; and,

(f) The police, again, did not report back their findings (and seizures) from the second search to the justice of the peace.

[31] The broad position of the defence is that the breaches, when considered together, demonstrate a pattern of disregard for the express provisions of the warrants, for the requirements of the Criminal Code in relation to searches and seizures, and to Mr. Sinnappillai’s Charter rights generally. They assert that the breaches, when considered together, support the exclusion of the evidence obtained from the Samsung under s. 24(2) of the Charter.

[32] Should the defence be unsuccessful on the Charter application, they submit that the evidence obtained by the police during the second search of the Samsung should not be admitted at trial on the basis that it is presumptively inadmissible evidence of bad character. There is very limited probative value to the evidence, since it cannot be conclusively connected to Mr. Sinnappillai. At the same time, it is highly prejudicial because it clearly involves communications with prostitutes for the purpose of purchasing sexual services. In the defence submission, the balancing of probity and prejudice favours exclusion.

[33] Broadly speaking, the Crown’s position is that there has been no breach of Mr. Sinnappillai’s s. 8 Charter right and there is no basis therefore to exclude any data seized from the Samsung phone. Even if the court concludes that breaches of the Criminal Code and/or the Charter have occurred, they are properly characterized as minor irregularities and do not justify an order excluding evidence.

[34] In the submission of the Crown, the evidence seized is reliable and highly probative of Mr. Sinnappillai’s involvement in the charged offences and of his ability to communicate in English. The conduct revealed in the text messages recovered from the second search is less disreputable than the charged conduct. Any prejudice arising from its introduction may readily be attenuated with a proper jury instruction. The Crown contends, in the result, that the balancing of probity and prejudice points strongly towards admission.

[35] I will tackle the issues raised in the applications in the following order:

(i) Were there sufficient grounds to issue Warrants #1 and #2?

(ii) Was the imaging of the Samsung’s hard drive an unauthorized seizure of the entire contents of the phone?

(iii) Were the police obliged to destroy the image after their first search?

(iv) Was the second search of the image a breach of the terms of Warrant #2?

(v) Were the police required to complete their second search of the phone within the time specified in Warrant #2?

(vi) Were the police obliged to report back to the justice of the peace regarding the data seized from the two searches of the Samsung?

(vii) Was the defendant’s s. 8 Charter right infringed?

(viii) If the defendant’s s. 8 right was infringed, should evidence flowing from the searches of the Samsung phone be excluded from evidence under s. 24(2) of the Charter?

(ix) If the impugned evidence survives Charter scrutiny, should it nevertheless be excluded as bad character evidence?

[36] There are a number of provisions of the Criminal Code that bear on the issues raised by counsel. I have reproduced them, for ease of reference, at Appendix “A”.

DISCUSSION

[37] I will address the issues raised in the applications in the order I referred to them above, beginning with the sufficiency of the grounds to issue the two impugned warrants.

(i) Were there sufficient grounds to issue Warrants #1 and #2?

[38] Canadians have a constitutional right to be secure against unreasonable searches and seizures. Section 8 of the Charter protects Canadians against unjustified state intrusions on their privacy: Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145.

[39] Interpreting and implementing constitutional rights inevitably involves a balancing of competing interests. Police searches engage the competing interests of privacy, on the one hand, and effective law enforcement on the other. Section 8 jurisprudence has balanced these competing interests by demanding that, to be reasonable, a search must be (i) authorized by law; (ii) the law itself must be reasonable; and, (iii) the search must be carried out in a reasonable manner. See for instance, R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (NSCA) at para. 25.

[40] In this instance, the police obtained two warrants under 487(1) of the Criminal Code to search the phone seized from Mr. Sinnappillai. Section 487 achieves Charter compliance through two features. First, by requiring prior judicial authorization for a search. Second, by establishing a minimum evidentiary standard that must be met before a search will be authorized. This minimum standard requires that before issuing a search warrant a justice must be satisfied that there are reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence will be found in the place proposed to be searched. See R. v. Morelli, 2010 SCC 8, at para. 39.

[41] The “reasonable and probable grounds” standard requires a “credibly-based probability” that an offence has been committed and that evidence of the offence will be found in the proposed location of the search. See for instance, R. v. Sanchez, 1994 CanLII 5271 (ON SC), [1994] O.J. No. 2260 (Gen. Div.) and R. v. Morris, as above, at paras, 29-30. Mere suspicion, conjecture, hypothesis or "fishing expeditions" do not meet the requisite standard. Said another way, an individual’s right to privacy begins to give way to the competing interests of law enforcement when a justice is satisfied that suspicion has given way to credibly-based probability. See Hunter v. Southam, as above at page 167.

[42] Warrant applications are invariably supported by ITOs, sworn by an investigating officer. Courts have identified a number of important factors that apply to the drafting and review of ITOs. They were recently summarized by DiLuca J. in R. v. Ricciardi, 2017 ONSC 2788 at paras. 14 to 17 and include:

(a) The affiant must personally believe in the existence of reasonable and probable grounds and the belief must be objectively reasonable;

(b) An affiant is entitled to rely on training and experience in assessing grounds but must be careful to consider both evidence that supports grounds and evidence that detracts from grounds;

(d) An affiant has an obligation to make full, fair and frank disclosure;

(e) An ITO must contain a reasonable degree of precision about the items being searched for, assessed within the context of the case;

(f) The ITO must establish a basis for the reasonable belief that those items will afford evidence in respect of an offence under investigation;

(g) The ITO must provide grounds supporting the belief that the listed offence or offences have been committed though exact precision is not required; and,

(h) The issuing justice must determine, based on the facts conveyed in the ITO, whether sufficient grounds exist for issuance of the warrant. An issuing justice is permitted to draw reasonable inferences from stated facts.

[43] In this case, defence counsel accepted that the police met the necessary standard with respect to the issuance of Warrant #1.

[44] With respect to Warrant #2, defence counsel conceded that the police established reasonable and probable grounds to believe that a criminal offence had taken place. She argued, however, that the credibly-based probability standard was not met by the police in terms of establishing that the second proposed search of the phone would afford additional evidence of the offence. She contended that the ITO filed in connection with Warrant #2 was stochastic in nature and, moreover, failed to make the full, fair and frank disclosure required by law. See R. v. Morelli, as above, at para. 44.

[45] Given the defence assertions, it is necessary that I examine the ITO with a view to determining its sufficiency. I must consider the ITO as a whole. The test to be applied is not whether I would have granted the application for a warrant on the same material. It is whether there was reliable evidence upon which, if believed, the warrant could have been issued: Morelli, para. 40.

[46] The ITO filed in support of the application to obtain Warrant #2 was some 41 paragraphs in length. It provided a brief overview of the investigation. It set out the narrative leading to Mr. Sinnappillai’s arrest. It referenced Warrant #1 and the fact that the search authorized by that warrant yielded a copy of the text conversation between the Client and Insp. Hogan. It provided details informing the affiant’s belief that the charged offences had been committed. And, at paragraphs 26 through 32, it set out the affiant’s grounds to believe that the evidence to be searched for would be found in the Samsung phone and that it would afford evidence of the charged offences.

[47] Recall that the purpose of the second proposed search of the phone was to locate other text messages written in the English language to support the inference that Mr. Sinnappillai was capable of communicating in English and was, therefore, more likely to have been the person communicating by text with Insp. Hogan.

[48] The affiant described how the Client was communicating with Insp. Hogan in English. He reproduced the text conversation between them in full. It is apparent from that conversation that the Client was capable of communicating back and forth in the English language.

[49] The affiant went on to set out why he believed that Mr. Sinnappillai was, in fact, the Client. His reasons are objectively compelling. The Client arranged for services with a value of $100. He texted Insp. Hogan when he was leaving for the hotel and said he would be 40 minutes. Roughly 45 minutes later he texted to say he had arrived, and he asked for a room number. A few minutes later he knocked on the door to the room number the police provided. The police opened the door to find Mr. Sinnappillai. He was in possession of $100 and a Samsung phone which contained the text conversation with Insp. Hogan.

[50] Defence counsel pointed to certain conclusory language used by the affiant, which she said is entirely conjectural. In particular, at para. 27, the affiant said, “it is anticipated that much of [Mr. Sinnappillai’s] communication with parties on the receiving end of his messages will be in the English language.” At para. 32 he said, “I believe the evidence being sought is stored within the Samsung device.”

[51] Viewed in isolation, the conclusory statements of the affiant might be problematic. But I am required to look at the whole of the ITO. In my view, the evidence set out in the ITO strongly supports an inference that Mr. Sinnappillai was the Client who communicated with Insp. Hogan. The Client communicated with Insp. Hogan in English. It is reasonable to infer that if Mr. Sinnappillai used the Samsung cell phone to text Insp. Hogan in the English language, he used it to text other people in the English language as well. In my view that is not conjecture or speculation, but rather proper inference.

[52] Evidence that Mr. Sinnappillai was capable of communicating in the English language is relevant to the issue of confirming the identity of the Client. It is evidence capable of rebutting any assertion that Mr. Sinnappillai could not be the Client due to an inability to communicate in English.

[53] There were, in my view, sufficient grounds upon which Warrant #2 could have been issued.

[54] That said, defence counsel raised a further argument regarding the failure of the affiant to make full and frank disclosure. Her position, which I think is correct, was that the affiant should have set out all of the relevant evidence the police had with respect to Mr. Sinnappillai’s ability, or lack of ability, to converse in English. Although the affiant mentioned that Mr. Sinnappillai had used a Tamil interpreter during the preliminary hearing, he failed to mention the difficulties that the arresting officers had communicating with Mr. Sinnappillai at the time of his arrest. He failed to mention that Mr. Sinnappillai told the arresting officers that he did not speak English, only Tamil.

[55] I agree that it would have been appropriate for the affiant to set out all of the pertinent evidence the police had regarding the language issue. I agree that the disclosure in the ITO could have and probably should have been fuller. That said, a failure to make full and frank disclosure does not automatically vitiate a warrant. See R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.) and R. v. Bisson, 1994 CanLII 46 (SCC), [1994] 3 S.C.R. 1097. It is simply one factor to consider when assessing whether a warrant should be set aside.

[56] Ultimately the duty of the reviewing court is to consider whether there was sufficient reliable evidence upon which the warrant could have been issued, after having excised erroneous or illegally-obtained evidence, and considering the impact that more fulsome disclosure would likely have had on the issuing justice. Again, see Morelli, as above, at para. 41 and R. v. Morris, as above, at para. 91.

[57] In this instance, I am aware from evidence adduced at the voir dire that there were language difficulties identified by the arresting police officers. While I consider such evidence material, its omission from the ITO does not, in my view, entirely undermine the credibility of the affiant. I am not satisfied that the omission was a deliberate attempt to mislead the court.

[58] In any event, the facts set out by the affiant that tie Mr. Sinnappillai to the Samsung phone and, in turn, to the conversation with Insp. Hogan, do not depend on the affiant’s credibility. The fact is, there is compelling evidence that supports the inference that Mr. Sinnappillai was the Client who communicated with Insp. Hogan in English. There was good reason to believe that there would be other text communications on the Samsung written in English. The fact that Mr. Sinnappillai told arresting officers that he did not speak English, though material, would not have undermined the credibly-based probability that a further search of the Samsung would render further evidence of the charged offences.

[59] In the result, my answer to this first question is yes: there were sufficient grounds to issue both Warrants #1 and #2.

(ii) Was the imaging of the Samsung’s hard drive an unauthorized seizure of the entire contents of the phone?

[60] Warrant #1 authorized the police to search the Samsung phone for phone logs, web browsing history and text messages with Insp. Hogan.

[61] Mr. MacLean testified that best practices with respect to the forensic examination of a cell phone dictate that the examiner make a mirror image of the phone’s hard drive before conducting any examinations. He said the purpose of creating a mirror image is to protect the integrity of the data on the phone. He said changes occur to the phone each time it is powered up. Investigators want to, for obvious reasons, ensure that the data on the phone remains exactly as configured when the phone was seized.

[62] Mr. MacLean further testified that the software used by forensic investigators to extract data from cell phones does not permit them to focus on a specific area of the phone. It is an “all or nothing” exercise at present according to Mr. MacLean. In the result, extraction of data and creation of a mirror image of that data, requires an extraction of the entire contents of the phone.

[63] Ms. Sickinger argued that the police, in effect, made an authorized seizure of the entire contents of the phone and breached Mr. Sinnappillai’s s. 8 right. I disagree. First, the police came into possession of the hard drive of the phone when they initially seized it. Copying the hard drive before searching it gave them nothing new and did not impact on Mr. Sinnappillai’s privacy interests. Second, the search protocol used in this case was authorized by the issuing justice. Third, the protocol was reasonable and, in my view, Charter compliant.

[64] The ITO filed in support of the application for Warrant #1 included a paragraph in which the affiant deposed that the investigative plan was for the forensic examiner to download and replicate the complete contents of the phone to a computer. Thereafter the specific data sought was to be extracted from the working copy on the computer.

[65] It is fair to presume that the justice of the peace issued the warrant knowing of the proposed search protocol to be used in this instance. It is a protocol commonly in use; one designed to protect the integrity of the data to be searched. Warrant #1 did not impose or authorize any particular search protocols, but the issuance of the warrant may be seen as implicitly approving of the protocol proposed in the ITO.

[66] In R v. Vu, 2013 SCC 60, the Supreme Court confirmed that search protocols are “not, as a general rule, constitutionally required” for searches of cell phones. (Para. 59). It was not necessary, in my view, that the warrant spell out exactly how the search should be conducted in order to be constitutionally compliant.

[67] It is necessary to determine, on a case by case basis, whether a particular protocol used was Charter compliant. To answer this question the court must consider the manner in which the search of the phone was conducted, in light of the purposes that s. 8 serves.

[68] Section 8 jurisprudence imposes a requirement that a search be conducted in a reasonable manner. Such a requirement tends to limit potential abuses of authorizations to search. The law requires that searches be no more intrusive than is reasonably necessary to achieve their objectives. See R. v. Vu, as above, at para. 22.

[69] In this case I am satisfied that the protocol utilized by the police did not infringe Mr. Sinnappillai’s s. 8 right.

[70] The police had the authority to seize Mr. Sinnappillai’s phone incident to his arrest. They had the authority to retain the phone based on an order made by a justice of the peace under s. 490(1) of the Criminal Code. Copying the hard drive gave them nothing they did not already have. Making a copy of the hard drive did not intrude on Mr. Sinnappillai’s privacy interests – it simply created a duplicate of the data already in the possession of the police. Mr. Sinnappillai’s privacy interests were not significantly engaged until the police began to look at the contents of the phone, or at least its mirror image.

[71] There are compelling reasons to utilize the protocol engaged by the police in this case. The police have a statutory obligation to take care to preserve the integrity of the phone (and its data) pending completion of these proceedings. See s. 490(1)(b) of the Criminal Code. At the same time, whether the forensic examiner examines the actual phone or the mirror image makes no difference as a matter of privacy: the exact same privacy interests are engaged either way.

[72] In my view, the search protocol utilized by the police was no more intrusive than was reasonably necessary to achieve its goals. Subject to the findings I make below with respect to the duty of the police to report any seized items back to a justice of the peace, I find that the initial search of the Samsung phone was conducted in a reasonable manner. The imaging of the data and examination of that image did not offend Mr. Sinnappillai’s s. 8 right.

(iii) Were the police obliged to destroy the mirror image after their first search?

[73] The absence of specific search protocols allowed for flexibility in terms of the manner in which the forensic examination of the Samsung phone was conducted. Flexibility is generally a good thing. But it does tend to positively correlate with uncertainty.

[74] One uncertainty arising in this case – and undoubtedly in many others – is whether the police have an obligation to destroy the mirror image of the phone created as part of their search protocol.

[75] While I am satisfied that it was reasonable for the forensic examiner to make a copy of the phone’s hard drive for the purposes of examination, it does not automatically follow that the police were permitted to keep that copy indefinitely.

[76] This issue was recently addressed by the Court of Appeal for Ontario in R. v. Nurse, 2019 ONCA 260. Mr. Nurse and another male were jointly charged with first degree murder. The police seized Blackberry phones from each and obtained warrants to search both. The expectation was that they would find communications between the two accused relating to the planning of the murder.

[77] The police obtained a warrant to seize the phones from their secure locker and to create mirror images of them for the purpose of forensic analysis. A search was initially conducted that yielded mediocre results due to the security features of the phones. About a year later a second forensic analysis was conducted on the mirror images of the phones with updated software. The second search yielded far better results, at least from the point of view of the police. The second search was conducted without first having obtained a second warrant.

[78] The trial judge, Coroza J., concluded that a second warrant was unnecessary. The Court of Appeal agreed. Trotter, J.A., writing for a unanimous panel, held that the second search of the imaged data was “another interpretation, inspection or analysis of materials already seized. It involved no further invasion of the appellants’ privacy rights.” (Para. 132). He went on to hold that once it was established that it was proper for the police to image the data on the phones, “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.” (Para. 137).

[79] In this case I have concluded that it was proper for the police to image the data from the Samsung phone. Warrant #1 restricted the examination of the data to specific areas. But beyond that, the warrant did not restrict when or how often the police could examine that data.

[80] In my view, the Court of Appeal’s decision in Nurse is dispositive. There is no requirement in law limiting when or how often the police may inspect the data copied from the phone. It follows that there is no requirement in law that the police destroy the data they properly copied.

(iv) Was the second search of the image a breach of the terms of Warrant #2?

[81] Warrant #2 authorized the police to seize the Samsung phone from the property locker and search it for text message conversations. It did not refer to a search of the mirror image of the phone made earlier by Mr. MacLean. Defence counsel urged the court to conclude that the search was not conducted within the terms of the warrant and was therefore an unauthorized search.

[82] I will not belabour this point. Warrant #2 did not specify any particular search protocols. I have already concluded that the creation of the mirrored image and the search of the image were reasonable in relation to my analysis of the search conducted pursuant to Warrant #1. I reach the same conclusion with respect to the protocol utilized in executing the search pursuant to Warrant #2.

[83] To conclude that Mr. MacLean should have created a second mirrored image and searched that, as opposed to searching the image he had already created, would be to ignore common sense and practicality. Moreover, it would do nothing to advance Mr. Sinnappillai’s privacy concerns, since presumably the content of the second mirror image would be identical to the content of the first mirror image. Creating a second duplication would be nothing but a redundant ‘make-work’ task for Mr. MacLean

[84] I would answer this fourth question in the negative.

(v) Were the police required to complete their second search of the phone within the time specified in Warrant #2?

[85] Defence counsel asserted that Warrant #2 required that the second search of the Samsung phone be completed between the hours of 3:00 p.m. on February 14, 2018 to 8:59 p.m. on February 15, 2018. Although the phone was retrieved from the storage locker and provided to Mr. MacLean within that time frame, he did not actually conduct his search of the mirror image of the phone until a week later, on February 22, 2018. Counsel contended that the search was unauthorized because it did not occur within the time frame specified in the warrant.

[86] I disagree.

[87] The form of the warrants granted in this case – Form 5 – is not well-suited to searches of electronic devices. The language used in the form is awkward and, in my view, fails to accurately reflect the nature and terms of the search authorized. A common-sense interpretation of the warrants must be brought to bear.

[88] I find that Warrant #2 authorized the police to attend at the Central Property Room at York Region Police headquarters between 3:00 p.m. on February 14, 2018 and 8:59 p.m. on February 15, 2018 and to retrieve the Samsung phone for the purpose of investigation. The warrant did not, however, require that the actual investigation of the phone be conducted within that limited time frame.

[89] I am supported in my finding by two decisions written by Coroza J. of this court, namely R. v. Nurse, 2014 ONSC 1779, affirmed[1] 2019 ONCA 260 and R. v. Neill, 2018 ONSC 5323, and by the decision of Dambrot J. in R. v. Yabarow, 2019 ONSC 3669.

[90] In both Nurse and Neill, Coroza J. concluded that language utilized in Form 5 warrants, similar to the language used in the warrants issued in this case, authorized the police to retrieve cell phones from property vaults within specified time parameters but did not restrict the time during which any subsequent forensic analysis must occur.

[91] In both Nurse and Neill, Coroza J. relied on the decision of Paciocco J., now Paciocco J.A., in R. v. Barwell, [2013] O.J. No. 3743 (O.C.J.) where Justice Paciocco dealt with the same issue now before this court as follows, at paras. 17-18:

This search warrant authorized Detective Michael Pelletier to, "Between the hours of 6:00 a.m. to 9:00 p.m., to enter and search for" the computer hard drives "and to bring them before me or some other Justice to be dealt with according to law." On that day, Constable Pelletier removed the computer from the secure facility and delivered it to Detective Thompson for analysis. Detective Thompson recorded the serial number "information, thereby commencing his forensic examination within the time period set out in the warrant. Detective Thompson was occupied that day with other matters and did not get around to creating and examining the cloned, versions of the hard drive, until the next day, April the 19th, 2011. Mr. Reesink therefore argues that the search of the computer continued outside the search period provided for in the warrant. His position is that this examination had to be completed within the 15 hour window set out in the warrant, and therein lies the breach. In my view, the search and seizure authorized by this warrant occurred properly when Detective Pelletier assumed control over the computer hard drives from the Ottawa Police Service's Evidence Control lock-up at 2799 Swansea Road within the period specified for that search and seizure. It was not required by the warrant that the forensic examination would take place during that same brief window. The time limits under the search warrant were not, therefore, dishonoured by Detective Thompson when he commenced the forensic search the next day. First, consider the implications of the argument that a forensic search of a seized chattel must be undertaken within the search period specified on the face of the warrant. Imagine, for the sake of the exercise, that the computer had been at Mr. Barwell's home, and that the warrant authorized the search and seizure to occur there. In order to minimize the intrusion Mr. Barwell's private dwelling, the warrant period would necessarily have been brief, to minimize the control the police could exercise over Mr. Barwell's home. The law would have required it, and so the search period on the face of the warrant would have been brief. Would the law, nonetheless require, in such circumstances, that any forensic examination of the computer would have to occur within that same brief search window on the face of the warrant? This would be unrealistic. Forensic examinations take time, and it would be counter-productive to the privacy interest to extend search and seizure periods for long periods of time in order to accommodate forensic examinations.

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.

[92] For the reasons expressed in Barwell, Nurse, Neill and Yabarow, I reject the assertion that the police were obliged to complete their forensic examination within the time period specified in Warrant #2.

(vi) Were the police obliged to report back to the justice of the peace the data seized from the two searches of the Samsung?

[93] When the police seize items pursuant to the execution of a search warrant, s. 489.1(1)(b) of the Criminal Code requires them to report back to a justice of the peace setting out the items seized. If they wish to detain the items they must seek the approval of the justice of the peace. Section 489.1(1) applies equally to items seized without prior judicial authorization. In compliance with this provision, the police reported to a justice of the peace the fact that they had seized a Samsung phone from Mr. Sinnappillai and they obtained an order authorizing its detention until the conclusion of the proceedings against Mr. Sinnappillai.

[94] Defence counsel submitted that when the police searched the contents of the phone pursuant to Warrants #1 and #2 they seized data and were obliged to report those seizures back to the justice of the peace. The reporting back requirement is not only statutorily required by s. 489.1(1), but was also an express requirement of both warrants.

[95] The requirement of the police to report the seizure of personal property serves important purposes. Most significant is its link to s. 490. See R. v. Backhouse, 2005 CanLII 4937 (ON CA), [2005] O.J. No. 754 at para. 112 and R. v. Garcia-Machado, 2015 ONCA 569 at para. 16. The reporting requirement brings the items within judicial oversight and provides, at least to some extent, for police accountability with respect to those items. See R. v. Canary, 2018 ONCA 304, at para. 45. It allows for the justice of the peace to ensure the maintenance and ultimate disposition of the property seized.

[96] The Crown’s position is that the initial return to the justice of the peace following the original seizure of the phone satisfies the requirements of s. 489.1(1). Crown counsel argued that the phone was returned “in its entirety”. The whole of the phone and its contents were already the subject of oversight by the justice of the peace.

[97] Defence counsel took the position that the device must be considered separately from the data in the device. Significantly higher privacy interests are engaged once the police begin to look in the phone and seize data. I agree.

[98] This issue has already been the subject of judicial consideration.

[99] In R. v. Merritt, 2017 ONSC 5245, Dawson J. addressed an identical argument to that raised by the Crown here. He disposed of it as follows, at paras. 244-45:

The [Crown] argues that no additional report to a justice was required because the property itself was already being supervised by the court pursuant to the earlier detention order. I would point out, however, that under the original s. 490 order the court was supervising the detention of the physical items. As no return was made in relation to the execution of the October 18 warrant the court was not supervising the detention of the data gleaned from the computers and USB keys.

As was subsequently held by the Supreme Court of Canada in Vu, the privacy interest in the data contained on a computer or similar device is subject to a separate level or layer of privacy protection from the seizure of the device itself. Treating supervision of the seized computer as a physical item as comparable to supervision of the data seized from the computers and USB keys is inconsistent with the concerns expressed in cases such as Vu and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253. Consequently, I am of the view that failure to make a report to a justice in relation to the execution of the October 18, 2013 warrant constitutes a violation of s. 8 of the Charter.

[100] The decision of Dawson J. in Merritt was followed by Coroza J. in Neill, as above, at para. 93. I too agree with the decision and elect to follow it (a) because I believe it is correct; and (b) because I am certainly not satisfied that it is clearly wrong and am therefore compelled to follow it as a matter of judicial comity: see R. v. Scarlett, 2013 ONSC 562, at para. 43.

(vii) Was the defendant’s s. 8 Charter right infringed?

[101] In Merritt, as above, Dawson J. concluded that a failure to report back as required by s. 489.1(1) of the Criminal Code constitutes a violation of s. 8 of the Charter. In reaching that conclusion he relied on R. v. Garcia-Machado, as above, in which the Court of Appeal held that detaining seized items in breach of s. 489.1(1) of the Criminal Code is not only unlawful, but it infringes the s. 8 right of the party from whom the items were seized. See also R. v. Craig, 2016 BCCA 154 at para. 182.

[102] I am bound to follow Garcia-Machado and do so. I conclude that the failure of the police to report the data seized from the Samsung phone back to a justice of the peace was a breach of the express terms of the warrants that authorized the searches and a breach of s. 489.1(1) of the Criminal Code. The unlawful continued detention of the seized data rendered the search and seizures unreasonable and, as such, breached Mr. Sinnappillai’s s. 8 Charter right.

(viii) Should evidence flowing from the searches of the Samsung phone be excluded from evidence under s. 24(2) of the Charter?

[103] Mr. Sinnappillai bears the onus of establishing that the data seized from the Samsung phone should be excluded from evidence under s. 24(2) of the Charter on the basis that its admission would bring the administration of justice into disrepute.

[104] In R. v. Grant, 2009 SCC 32, at para. 71, the Supreme Court provided trial judges with direction in terms of the analysis to be applied to applications brought under s. 24(2) of the Charter:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[105] I conclude that Mr. Sinnappillai has not met his onus under s. 24(2) for the following reasons:

The Seriousness of the Breaches

(a) Section 8 of the Charter provides an extremely important protection in a digital world which offers law enforcement agencies ever-increasing technology to surveil and record the activities and interests of Canadians. Judicial oversight of the search and seizure of individuals’ property, data, and personal information is an important safeguard. In this respect, I consider the failure of the police to comply with their obligations under s. 489.1(1) of the Code to be significant;

(b) Having said that, on balance I do not find any serious, nor systemic, police misconduct here. I accept Mr. MacLean’s evidence that he did not know that he was required to report his data seizures back to a justice of the peace. I also recognize that the law is not yet entirely settled on the requirement of the police to report back data seized from a cell phone when the seizure of the phone itself was already reported back. Future breaches of that requirement may be considered more serious;

(c) It is also of some significance that the police did report the initial seizure of the Samsung phone back to a justice of the peace. Moreover, they applied for warrants each time they conducted searches of the data on the phone and were careful to conduct only limited searches. Their intrusion on Mr. Sinnappillai’s privacy interests was not overbroad;

The Impact on Mr. Sinnappillai’s Charter-protected Interests

(d) I consider the impact on Mr. Sinnappillai’s privacy interests to be minimal. The police lawfully searched his cell phone and lawfully seized the data in question. Their failure was in reporting their results back to a justice of the peace, which clearly impacted on Mr. Sinnappillai’s residual privacy interest in that data. Having said that, had the police complied with the requirement to report back to a justice of the peace, I have absolutely no doubt that the justice of the peace would have authorized the continued detention of the seized data;

Society’s Interests

(e) The allegations in this case are serious. They involve the luring of a child for the purpose of prostitution. The sexual exploitation of children in our community is of grave concern to all right-minded members of society. Society definitely has a significant interest in the adjudication of this case on its merits. The evidence obtained from the search of the cell phone is reliable and of significant importance to the Crown’s case.

The Balance

(f) In my view, the evidence should not be excluded. All three aspects of the 24(2) inquiry point towards inclusion rather than exclusion of the evidence. I believe the administration of justice would suffer greater harm from the exclusion of the evidence than from its inclusion.

[106] In the result, the defence application to exclude from evidence the data seized by police from the Samsung is dismissed.

(ix) If the impugned evidence survives Charter scrutiny, should it nevertheless be excluded as bad character evidence?

[107] The police extracted a total of 113 text messages from the Samsung phone during the execution of Warrant #2. These include both incoming and outgoing texts. Of those, 44 relate to the conversation between the Client and Insp. Hogan. These had already been recovered when Warrant #1 was executed. In other words, the execution of Warrant #2 yielded an additional 69 text messages, including both sent and received messages.

[108] I would describe the breakdown of the additional 69 messages as follows:

5 are institutional in nature. In other words, they are automated messages received either from the service provider or an app;
1 is a birthday message;
25 are communications between the user of the Samsung and what appears to be a female friend in Montreal; and,
38 appear to be communications between the user of the Samsung and prostitutes, for the purpose of purchasing sexual services.

[109] In other words, more than half of the communications which relate to off-indictment activity, appear to involve the purchase of sexual services, i.e. prostitution.

[110] Defence counsel submitted that evidence that Mr. Sinnappillai may have communicated with prostitutes reflects badly on his character and is presumptively inadmissible. The Crown did not contest that characterization of the evidence as disreputable. I agree. As such, the Crown bears the onus to establish that the probative value of the evidence outweighs its potential for prejudice: see R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717; and R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.

[111] In Handy, the Supreme Court provided a framework of analysis to be used when the admissibility of bad character evidence is in issue. Watt J.A. in Watt’s Manual of Criminal Evidence, 2018 (Toronto: Thomson Reuters, 2018) at §34.01 through §35.01, discusses the admissibility of evidence of extrinsic misconduct. He summarizes the ruling in Handy as requiring four steps:

(a) Identifying the relevance of the evidence to an issue in the case, otherwise than by demonstrating the propensity of the accused to commit crimes or other disreputable or repugnant acts;

(b) Assessing the probative value of the evidence;

(d) Balancing the probative value against the prejudicial effect of the evidence.

[112] In this instance, the evidence is clearly relevant to a live issue in the case, rather than simply to demonstrate Mr. Sinnappillai’s participation in prior disreputable activities. Here there is a live issue about his ability to communicate in English and, therefore, his ability to have authored the text messages sent from the Samsung phone to Insp. Hogan.

[113] The probative value of the evidence is a measure of its relevance and, perhaps more importantly, its ability to do what the Crown tenders it for. Here it is tendered by the Crown to help establish Mr. Sinnappillai’s ability to communicate in the English language.

[114] The fact that there are 69 text messages written in English above and beyond the ones exchanged with Insp. Hogan does not immediately lead to the conclusion that Mr. Sinnappillai must be able to communicate in English. If, for instance, someone other than Mr. Sinnappillai authored the text messages to Insp. Hogan, it may equally be the case that someone other than Mr. Sinnappillai authored the balance of the text messages.

[115] Having said that, the more frequently the phone was being used to communicate with various parties, including some who were evidently saved as contacts in the Samsung phone, the more unlikely it is that someone other than the owner of the phone was sending and/or receiving those communications. Should the Crown succeed in establishing that the phone belonged to Mr. Sinnappillai, the extent of the communications on the phone written in English will be significantly probative of his ability to communicate in that language.

[116] I will turn to the issue of prejudice.

[117] Prejudice is generally described in two categories: reasoning prejudice and moral prejudice.

[118] Reasoning prejudice refers to the risk that the jury may misuse the evidence or otherwise be distracted or confused by it, or that it will take up an inordinate time to introduce and litigate.

[119] Moral prejudice refers to the risk that the jury may wrongfully convict the defendant based on a perception that he is a bad person deserving of punishment.

[120] In this case, the evidence is reliable and straightforward. The jury will understand, in my view, that there is a live issue about Mr. Sinnappillai’s ability to communicate in English and they will understand the limited use that the evidence of extrinsic text communication may be put to.

[121] The impugned evidence will also take very little time to introduce.

[122] The fact that the communications are for the purpose of prostitution is problematic, from a moral point of view, but there is no indication that any of the sex workers involved (other than the one portrayed by Insp. Hogan) were under the age of 18. In other words, the extrinsic bad character is significantly less egregious in nature than the charged offences.

[123] I am of the view that any potential prejudice arising from the introduction of the extrinsic text communications is modest. Moreover, it can be attenuated with a clear limiting instruction, such that it may then be described as minor.

[124] On balance, I find the probative value of the evidence to exceed its potential for prejudice and, in the result, conclude that it is admissible. The Crown’s application is granted.

Boswell J.

Released: August 26, 2019.

APPENDIX “A”

RELEVANT PROVISIONS OF THE CRIMINAL CODE

487 (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place

(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed,

(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,

(c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or

(c.1) any offence-related property,

may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(d) to search the building, receptacle or place for any such thing and to seize it, and

(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1.

489.1 (1) Subject to this or any other Act of Parliament, where a peace officer has seized anything under a warrant issued under this Act or under section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,

(a) where the peace officer is satisfied,

(i) that there is no dispute as to who is lawfully entitled to possession of the thing seized, and

(ii) that the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding,

return the thing seized, on being issued a receipt therefor, to the person lawfully entitled to its possession and report to the justice who issued the warrant or some other justice for the same territorial division or, if no warrant was issued, a justice having jurisdiction in respect of the matter, that he has done so; or

(b) where the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii),

(i) bring the thing seized before the justice referred to in paragraph (a), or

(ii) report to the justice that he has seized the thing and is detaining it or causing it to be detained

to be dealt with by the justice in accordance with subsection 490(1).

490 (1) Subject to this or any other Act of Parliament, where, pursuant to paragraph 489.1(1)(b) or subsection 489.1(2), anything that has been seized is brought before a justice or a report in respect of anything seized is made to a justice, the justice shall,

(a) where the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or,

(b) where the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the thing seized should be detained for a reason set out in paragraph (a), detain the thing seized or order that it be detained, taking reasonable care to ensure that it is preserved until the conclusion of any investigation or until it is required to be produced for the purposes of a preliminary inquiry, trial or other proceeding.

[1] I note that on appeal, counsel did not advance the argument that the searches conducted on the seized Blackberry devices took place outside the time frame specified in the warrant. The Court of Appeal did not, in the result, analyse or rule on that issue.

R. v. Sinnappillai, 2019 ONSC 5000

Case Summary

INTRODUCTION

OVERVIEW

THE WARRANTS

THE ISSUES AND THE PARTIES’ POSITIONS

DISCUSSION

(i) Were there sufficient grounds to issue Warrants #1 and #2?

(ii) Was the imaging of the Samsung’s hard drive an unauthorized seizure of the entire contents of the phone?

(iii) Were the police obliged to destroy the mirror image after their first search?

(iv) Was the second search of the image a breach of the terms of Warrant #2?

(v) Were the police required to complete their second search of the phone within the time specified in Warrant #2?

(vi) Were the police obliged to report back to the justice of the peace the data seized from the two searches of the Samsung?

(vii) Was the defendant’s s. 8 Charter right infringed?

(viii) Should evidence flowing from the searches of the Samsung phone be excluded from evidence under s. 24(2) of the Charter?

(ix) If the impugned evidence survives Charter scrutiny, should it nevertheless be excluded as bad character evidence?

APPENDIX “A”

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 4

Legislation 1