COURT FILE NO.: 19-13381-MO
DATE: 2019/08/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Amber Brown, Praxicedes Chivell, Juteah Downey, and Maro Downey
Matthew Geigen-Miller, for the Crown
Ex parte
HEARD: August 26, 2019 (at Ottawa)
SEALING ORDER
Access to, and the disclosure of, the application record is prohibited pursuant to section 487.3 subsection (1) of the Criminal Code. Pursuant to section 487.3 subsection (3) of the Criminal Code the application record shall be placed in a packet and sealed by the court immediately on determination of the application, and that packet shall be kept in the custody of the court in a place to which the public has no access or in any other place that the court may authorize and shall not be dealt with except in accordance with the terms and conditions specified in the order or as varied under subsection (4).
ENDORSEMENT
Parfett J.
[1] Crown requests an order for certiorari and mandamus to compel the reviewing justice to review a search warrant on its merits.
Background
[2] Ottawa Police Service (OPS) submitted a request for two search warrants in May 2019. Both warrants were based on the same ITO. One warrant was granted; the other refused with the following endorsement:
Search of Locker #ML005 denied. No need for warrant to remove objects from locker. If a search is sought for each electronic item, then a search warrant should be sought for the items + not the locker.[^1]
[3] After consultation with the Crown Attorney’s Office, the OPS re-submitted the request for a warrant with an explanation in the revised ITO as to why they had listed a police locker as the place to be searched and the electronic devices as things to be seized and forensically examined.
[4] The package of materials containing the requested search warrant and ITO were returned to the police with the following endorsement on the cover sheet:
A warrant is not required to search a police locker. The warrant should be for the specific devices.[^2]
[5] The reviewing justice rejected the search warrant on its face and did not consider the ITO on its merits. The Crown has brought this ex parte motion to compel the reviewing justice to consider the ITO on its merits.
Analysis
[6] The issue to be determined is whether the police can properly draft the search warrant in the manner that they did. If so, did the reviewing justice make an error in law in rejecting the search warrant without considering the ITO on the merits? Finally, should an order for certiorari and mandamus issue?
[7] Generally, speaking mandamus is a discretionary remedy that is available if there is no right of appeal from a decision of a lower court. Mandamus is available to require a lower court to discharge a duty it is required to undertake.[^3] In the context of criminal proceedings, this remedy is available when a judge has made ‘an error in law in reaching a decision on it which prevented the determination of the charges on their merits.’[^4]
[8] In the present case, the reviewing justice did not review the search warrant ITO on its merits. Instead, the justice took the position there was a defect on the face of the warrant that invalidated the warrant. For the reasons set out below, I find that decision was an error in law and consequently, mandamus is the appropriate remedy for the Crown to seek.
[9] It is trite law at this time that a judicial authorization is required to conduct a forensic examination of an electronic device.[^5]
[10] Crown argues that practically speaking, in the specific circumstances of this case, it makes sense to list the police locker as the ‘place to be searched’ and the electronic devices as the ‘things to be seized’. Crown concedes that a warrant is not required to search a police locker. However, they argue that if the electronic devices are listed as the ‘places to be searched’ a number of difficulties arise.
[11] A search warrant authorizes police to enter a place during the time specified on the face of the warrant.[^6] Once the search is finished, police must exit the place. There is a right to only a single search.[^7] Crown argues the following:
The problem is that when a computer is treated as a place, it is far from clear what ‘entering’ or ‘exiting’ that ‘place’ even means. How are police to know what they can and cannot do? If a police computer analyst finishes using one method of examining the data in a seized computer, but the next day she thinks of another method to try, is she barred from using the second method without getting a new warrant? … And, why should the technician be required to ‘enter’ the computer at a particular date and time, unconnected to the period for which police are authorized to retain the physical computer?[^8]
[12] In short, Crown contends that the present Criminal Code sections are inadequate in relation to searches of electronic devices and can lead to a number of problems as noted above. However, the Crown states that these problems can be obviated if the electronic device is treated as an item to be seized.
[13] The following case illustrates the point. In R. v. Nurse,[^9] police had seized the cellphones of the accused and stored them in a police locker. They then obtained a search warrant for a forensic examination of the cellphones. In that case, defence argued that the search warrant was invalid because the place to be searched was the ‘general property vault of the OPP’ and it did not list the specific electronic devices to be searched. In addition, on the basis that the electronic devices were the places to be searched, defence argued that the devices could only be examined within the timeframe set out on the face of the warrant. The trial judge rejected both arguments. The trial judge noted that the electronic devices were properly listed as the things to be seized.[^10] Additionally, the trial judge followed the analysis set out in R. v. Barwell,[^11] with respect to the issue of the timeframe of the search.[^12] He held that the police were not confined to the timeframe set out on the face of the warrant in conducting the forensic analysis of the electronic devices.
[14] The Crown also points to the case of R. v. John.[^13] In that case, police obtained a search warrant to search a residence and to seize any electronic devices found on the property. The warrant set out the necessary conditions for a forensic examination of the devices seized. Defence counsel argued in that case that the police needed to obtain two search warrants: one to seize the electronic device and another to examine the device. The trial judge noted in that case,
I acknowledge that in Vu, Justice Cromwell speaks at para. 54 of effectively treating computers as if they are a “separate place” of search necessitating a distinct prior authorization. However, this does not mean in my view, that characterizing a computer as an item to be seized and searched, rather than as a place to be searched, invalidates the warrant.[^14]
[15] The primary difference between the John case and the present case is that the computers in John were in a residence and a warrant was required. In the present case, the electronic devices were seized without a warrant and currently reside in a police locker. As noted earlier, a judicial authorization is required to examine the devices.
[16] The question then becomes, does the fact the police locker is listed as the ‘place’ to be searched and the electronic devices as the ‘things’ to be seized and examined, invalidate the warrant on its face? In my view, following the logic in both R. v. Nurse and R. v. John, it does not.
[17] Consequently, the reviewing justice made an error in law in rejecting the search warrant without considering the ITO on the merits. An order for certiorari and mandamus will issue.
Madam Justice Julianne Parfett
Released: August 28, 2019
COURT FILE NO.: 19-13381-MO
DATE: 2019/08/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Amber Brown, Praxicedes Chivell, Juteah Downey, and Maro Downey
Endorsement
Parfett J.
Released: August 28, 2019
[^1]: Application Record, tab 2A. [^2]: Application Record, tab 2E. [^3]: R. v. Palacios, 1984 CanLII 1870 (ON CA), [1984] OJ No 3104 (CA) at para. 28. [^4]: At para. 35. [^5]: R. v. Vu, 2013 SCC 60. [^6]: See R. v. Brown, 2010 ONSC 2280 at paras. 17-23 and R. v. Rafferty, 2012 ONSC 703 at paras. 26-28. [^7]: R. v. Coull & Dawe, 1986 CanLII 4753 (BC CA), [1986] BCJ No. 1338 (CA) at para. 13. [^8]: Crown’s factum at para. 56. [^9]: 2014 ONSC 1779, [2014] OJ No. 5004 (SCJ). [^10]: At para. 34. [^11]: [2013] OJ No. 3743 (OCJ). [^12]: At paras. 17-18. [^13]: [2016] OJ No. 7287 (SCJ), aff’d 2018 ONCA 702, [2018] OJ No. 4495 (CA) [^14]: See John at para. 45.