`CITATION: R. v. Mitchell, 2019 ONSC 5040
COURT FILE NO.: CR-18-50000-494-0000
CR-18-50000-570-0000
DATE: 20190909
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
O’SHANE MITCHELL
Accused
Counsel:
Jim Cruess, for the Crown
Marianne Salih, for the Accused
HEARD: June 24, 25, 26, July 9, 10 and 11, 2019
b.a. aLLEN j.
REASONS FOR DECISION
(Application under Charter sections 8, 9, 10(a), 10(b), 11(e) and 24(2)
BACKGROUND
Brief Overview
[1] The accused, O’Shane Mitchell, is charged with firearm offences and obstructing a police officer in connection with a shooting. The shooting occurred around 10:56 p.m. on September 2, 2017 at an apartment building at 15 Martha Eaton Way. The police arrived minutes later from 12 Division which is located only 200 metres from the scene of the shooting. The police located shell casings in front of that building and on the rear parking lot near a fence separating 15 Martha Eaton Way from an adjacent building at 25 Martha Eaton Way.
[2] At 1:45 a.m., police officers began viewing surveillance of the area of the shooting at 15 Martha Eaton Way and 25 Martha Eaton Way. Their observations caused them to direct their attention to certain apartment units at 25 Martha Eaton Way. Mr. Mitchell was located in one of those units. The police seized Mr. Mitchell’s cellphone which contained photos of him holding a firearm which the police ultimately discovered was used in the shooting. He was arrested for obstruction of justice for providing the police false names and for possession of firearm offences based on the firearm displayed in photos in the cellphone.
[3] Mr. Mitchell claims under the Charter of Rights that the police violated his rights under s. 9 (arbitrary detention), s. 8 (unlawful search and seizure of the cellphone, failing to file Report to a Justice), s. 10(a) (not being informed promptly of reason for arrest for firearm charges), s. 10(b) (untimely facilitating rights to counsel) and s. 11(e) (delay in taking accused for show cause).
[4] The defence seeks to have the photos from the cellphone excluded under s. 24(2) of the Charter as having been obtained in violation of Mr. Mitchell’s rights under the Charter.
The Shootings and Sightings of Possible Firearms
[5] Officer Steven Sgroi was the main Crown witness. He received a radio call at about 10:56 p.m. and learned there had been two shootings, one in the lobby of 15 Martha Eaton Way and the other at the back corner of that building. He arrived at the scene immediately. Officer Sgroi viewed surveillance in the security office of the complex and testified about what appeared on the surveillance of the lobby at 15 Martha Eaton Way.
[6] The surveillance shows the movements of people in the lobby at about 10:46 p.m. A black male is observed wearing a black hoodie and light blue-coloured blue jeans. The police believed that male displayed characteristics of an armed person. With him in the lobby at the time were Shaquille Woodcock, who is wearing a light grey sweatshirt, a blue New York Dodgers hat and a black sweatshirt and Shayne Reid.
[7] The defence does not dispute that Mr. Mitchell is the male wearing the black hoodie and light blue-coloured jeans. However, as will be seen, when Mr. Mitchell testifies he equivocates on this. Shaquille Woodcock was the suspected shooter. Another black male, later known to be Kevin Oduro and a woman later known to be Sherine Shkrais, are also seen in the lobby. All of those persons are seen leaving the lobby. Minutes later, at about 10:48 p.m., a bullet is seen going through the lobby door.
[8] Officer Sgroi testified he learned from Officer Gillespie, who also viewed surveillance in the security office, that after the shooting 7 or 8 people were seen hopping the fence between 15 and 25 Martha Eaton Way. Mr. Mitchell admits he was one of those persons. The surveillance also shows Mr. Mitchell and Ms. Shkrais enter Martha Eaton Way at about 10:53 p.m. Mr. Mitchell testified he then went with Kevin Oduro to 25 Martha Eaton Way, unit 2413, Ms. Shkrais’ apartment. Officer Sgroi testified the surveillance also shows at 10:52 p.m. Shaquille Woodcock walking with a young boy and entering 25 Martha Eaton Way.
[9] Officer Sgroi testified about further information he received. Officer Gillespie relayed certain observations to Officer Sgroi at 4:22 a.m. She reported the movement of the 4 persons from unit 2413 at 25 Martha Eaton Way into unit 613.
[10] Officer Gillespie observed 2 of the 4 persons, one male later determined to be Shaquille Woodcock, leave unit 613 and meet a woman in a pink hoodie, later determined to be Ms. Shkrais, in the 6th floor stairwell. Minutes later, Mr. Woodcock is seen returning to unit 613 and Ms. Shkrais returning to unit 2413.
[11] The other 3 persons who left unit 2413 were a male and female, the woman in the pink sweat shirt and another male, later determined to be Kevin Oduro. The latter two persons went to the lobby of 25 Martha Eaton Way and moved to leave the building. Officer Sgroi testified he thought those persons might be attempting to discard evidence. Officer Gillespie relayed further information that at 4:22 a.m. the male and female who went to the lobby were detained outside 25 Martha Eaton Way. Ms. Shkrais was found with a firearm in a satchel inside her purse.
Decision to Hold and Secure 25 Martha Eaton Way, Unit 613
[12] Officer Sgroi decided “to hold and secure” or “freeze” unit 613 before the issuance of the search warrant. This involves officers entering premises without a search warrant. He explained the decision was based on a number of considerations.
[13] One factor was the observation of the 7 to 8 persons who moved between 15 and 25 Martha Eaton Way. Another consideration was the movement of the 4 persons out and into units 2413 and 613 and the sighting of the woman in the pink hoodie thought to be carrying a firearm. Officer Sgroi testified his greatest concern was the fact of the seizure of the firearm from the persons attempting to flee 25 Martha Eaton Way. He indicated he had reason to believe there was another firearm since the shootings took place at 2 locations. With the movements of people into unit 613 he believed a firearm could have been carried there.
[14] The police decided to seek warrants for both units 613 and 2413. At about 5:45 a.m., Officer Sgroi decided to place unit 613 on a freeze pending the receipt of the warrant.
Exigent Circumstances
[15] Officer Sgroi arrived at 25 Martha Eaton Way at 4:43 a.m. to await more officers to assist in entering unit 613. Two other officers were watching unit 2413 and other officers were watching surveillance in the security office. He testified there was a shortage of officers available on the shift.
[16] Officer Sgroi testified that exigent circumstances justified his decision. He testified that this required him and other officers to enter units 613 and 2413 before they obtained the warrant to preserve evidence including any clothing, firearms, ammunition, casings and GSR (gunshot residue). He indicated that he feared that if a firearm were to leave the unit, police officers, people in the apartment building and the public might be put into danger.
[17] Officer Sgroi was asked why he was not content safety-wise before the warrant issued to just have police watch live feed of people’s movements and then respond to anything suspicious rather than enter apartment units and freeze them before they were authorized to enter by a warrant. Officer Sgroi responded that he was comfortable to do that until Officer Gillespie observed the movements of the 4 persons. He felt with the shortage of officers it would be difficult to keep track of multiple people’s movements. His view was that freezing the unit to keep people and contraband secured was the optimal way to keep the situation under control.
[18] In terms of the preferred number of officers per occupant in a target address, Officer Sgroi testified the best practice would be to have 4 officers per occupant, especially when there is suspicion of a firearm on the premises. Officer Sgroi also pointed out that while the preferred practice is to execute warrants on multiple locations simultaneously there even were insufficient officers that evening to enter units 613 and 2413 at the same time.
[19] Officer Sgroi testified he believed the authority to enter the premises is provided under the Criminal Code and that the law requires an element of “imminence” before the police are justified to enter. It was the officer’s view that this factor was satisfied with the officers being faced in relation to unit 613 with the possible loss or destruction of evidence. He said that he felt quite confident with the observations the police made that the search warrant would be issued.
Circumstances inside Unit 613 during Hold and Secure
Persons Located in Unit 613
[20] At about 5:00 a.m. on September 3rd, 2017 the police forced open the door of unit 613. Officer Sgroi said he believed that 7 or 8 officers entered the unit. Inside the unit were 6 persons: the accused, O’Shane Mitchell, an elderly man, Lawrence Woodcock, his wife, Audrey Woodcock, Shaquille Woodcock, a male Shayne Reid and a young boy, Scott Tyrell.
[21] Officer Sgroi testified that Shaquille Woodcock was wearing the same grey pants and had the same physical build as the male he had seen earlier on the surveillance walking into 25 Martha Eaton Way with the young boy. This is the male Officer Sgroi believed he also saw on the surveillance displaying the characteristics of an armed person, carrying an object that looked like a firearm in his hoodie pocket. Mr. Woodcock is also seen entering unit 613 and then leaving and meeting the woman in the pink hoodie in the stairwell on the 6th floor and then returning to apartment 613.
[22] Mr. Mitchell was wearing light blue-coloured jeans when the police entered unit 613. Officer Sgroi confirmed that Mr. Mitchell was the male in the light blue-coloured jeans observed with Shaquille Woodcock in the lobby of 15 Martha Eaton Way just before the shooting.
[23] Everyone in unit 613 was brought into the family room. Everyone was cuffed to the rear. Officer Sgroi indicated that at this point all were detained but not arrested. Pat down searches were performed to ensure officer safety and the safety of others.
Rights to Counsel and Caution
[24] Officer Sgroi testified that he explained to everyone at once that the police were investigating shootings at 15 Martha Eaton Way. He told them the police were freezing the unit while waiting to receive a search warrant. He answered questions from Lawrence Woodcock about the police’s authority to be in his home without a warrant. He explained that the police believed there might be a firearm in the unit and that for safety reasons they had to ensure that no one left the unit, that no one removed the firearm before the unit was searched. Mr. Mitchell agreed that Officer Sgroi gave rights to counsel in that manner.
[25] Officer Sgroi also said he gave everyone together the right to silence caution. He informed them that the police were investigating a firearm and depending on what they located in the unit, the occupants could face charges related to what the police seized. He informed them that anything they might say could be used against them. Mr. Mitchell also did not disagree that Officer Sgroi provided the silence caution in that manner.
[26] The officer testified that everyone appeared to understand the rights to counsel and caution. Officer Sgroi indicated he made sure everyone understood. He stated that the biggest concern expressed was that of Lawrence Mitchell who asked questions about the entry without a search warrant. Mr. Mitchell also did not disagree that this occurred.
[27] Officer Sgroi testified he told the occupants he could not facilitate communications with their lawyers until they were taken to the police station. He explained that he would have to arrange privacy for persons who wished to call their lawyers. The officer indicated that he explained that because the police had not searched the unit the police could not allow people to go into different rooms for privacy. And he said he further explained that it was a small unit and it would be difficult to prevent others from hearing telephone calls to lawyers.
[28] Officer Sgroi raised a further concern. He pointed out that if people were allowed to use their cellphones to make calls in privacy, the police could not be sure of whom they might call. Calls could go out to persons who could come to the unit and put the police and occupants in danger. There was nowhere in the unit they could go for privacy. The balcony, he explained, would not be safe as people could escape or injure themselves if allowed to be there alone. Officer Wilson testified that in fact when he arrived later to unit 613 the balcony was under construction and the door to the balcony was blocked from being opened.
[29] Officer Sgroi indicated that some of the officers left the unit and went to unit 2413 while he was administering the rights to counsel. He said he believed 4 or 5 officers stayed behind in unit 613.
The Detention of O’Shane Mitchell
[30] Officer Sgroi’s evidence was that Mr. Mitchell was quiet, not talkative. As pointed out below, Mr Mitchell does not agree with that.
[31] Officer Sgroi was asked about why he did not release Mr. Mitchell after the officer’s explanation about the police investigation or after rights to counsel and caution were given. The officer explained what his authority was to detain Mr. Mitchell. He did not know whether there was a safety risk, whether Mr. Mitchell might retrieve another firearm if allowed to leave.
Identification of O’Shane Mitchell
Officer Sgroi’s Evidence
[32] Officer Sgroi’s evidence on the identification of Mr. Mitchell differs from that of Mr. Mitchell in significant ways.
[33] The police began investigating the identities of the occupants at about 5:45 a.m. Officer Sgroi explained the reason the police sought to obtain the identities of the detained persons. He said he believed the search warrant would soon be issued and it was important to start the preparation of documentation of the persons in the unit where he believed the firearm was still present.
[34] Officer Sgroi testified he looked into the identity of Mr. Mitchell. He was at first handcuffed to the rear. The officer testified it was a long process before he was able to get Mr. Mitchell’s identity. He testified that Mr. Mitchell gave more than one false name.
[35] Officer Sgroi said the first false name he gave was Brandon Chevannes, d.o.b., 1995 January 26. He gave his address as 1520 Keele Street. The officer called the dispatcher to do CPIC and Ministry of Transportation searches on that name. There were no hits. Officer Sgroi stated he then cautioned Mr. Mitchell about obstruction of justice for providing a false name.
[36] According to the officer, the second name Mr. Mitchell gave was Brendon Jason Chevannes. The officer contacted the police station for a Versadex search. Again, there were no hits. After he was cautioned for obstruction, Mr. Mitchell, according to the officer, insisted his name was Brendon Chevannes.
[37] Officer Sgroi testified that through further questioning he obtained his mother’s name, “Alecia Tomlinson”. The officer then did a pat down search on Mr. Mitchell and found a doctor’s card and an RBC bank card containing the name “Alecia Tomlinson.” Mr. Mitchell told the officer that is his mother’s name.
[38] The officer said he did not recall if Mr. Mitchell gave the name Brendon Tomlinson or whether he came up with that name of his own accord. But he said he also searched that name and there were no hits.
[39] At about 6:00 a.m., Officer Sgroi arrested Mr. Mitchell for obstruction of justice and gave him his rights to counsel and caution on the right to silence. According to the officer, Mr. Mitchell said he did not want to say anything in answer to the charge. The officer asked Mr. Mitchell if he understood his rights and according to the officer Mr. Mitchell said he understood. Mr. Mitchell asked to speak to a lawyer and Officer Sgroi gave the same explanation about not being able to facilitate contact with his lawyer until he was transported to the police station.
Mr. Mitchell’s Evidence
[40] Mr. Mitchell testified he arrived at unit 613 just after 5:00 a.m. on September 3rd. He testified he lived with his mother in Mississauga at the time of the shooting. He had previously lived in the Martha Eaton Way housing complex and had been friends with Mr. Reid and Shaquille Woodcock since childhood. Mr. Mitchell never lived in unit 613 but would stay over with his friend from time to time. He planned to sleep over at unit 613 on September 3rd.
[41] Mr. Mitchell was sleeping on the floor of Shaquille Woodcock’s bedroom when he was awakened by the police entering the unit. He and his friends were brought from the bedroom into the living room with the others.
[42] Mr. Mitchell confirmed Officer Sgroi’s evidence that he told everyone that the police were investigating a shooting and that they believed a firearm might be in the unit. He agreed that Officer Sgroi explained why they were being detained and gave them their rights to counsel and caution. Like Officer Sgroi, Mr. Mitchell testified that he and Lawrence Woodcock asked to speak to a lawyer and the officer explained why everyone would have to wait until they were at the police station.
[43] After this point Mr. Mitchell’s and Officer Sgroi’s evidence diverge.
[44] According to Mr. Mitchell another officer took him to the living room hallway. Mr. Mitchell admits he gave that officer the name O’Shane Tomlinson. Contrary, to Officer Sgroi’s evidence Mr. Mitchell testified he then gave Officer Sgroi the name Brendon Chevannes, d.o.b. 1995 January 26 and the address 1520 Keele St.
[45] Also contrary to Officer Sgroi’s evidence, Mr. Mitchell testified when he gave Officer Sgroi the name Brendon Chevannes the Officer Sgroi assumed he said Brandon Chevannes and he searched that latter spelling of the name first. Mr. Mitchell testified he did not give two first names with the surname Chevannes. He said he just corrected Officer Sgroi when he found out he had searched under Brandon and told the officer the name was spelled Brendon. Then, according to Mr. Mitchell, the officer searched under Brendon. He got no hits under either name.
[46] Crown counsel challenged Mr. Mitchell that he had previously in-cross said he did give the officer two names. Mr. Mitchell said if he did that he did not understand the question. He insisted that he only gave the name Brendon and it was Officer Sgroi’s mistake when he thought he said Brandon.
[47] Officer Sgroi testified that after he seized the mother’s doctor and bank cards he did not recall whether or not Mr. Mitchell gave him the name Brendon Tomlinson to search. Mr. Mitchell denied giving the officer that name. He said the officer searched that name on his own. The name came back with no hits. Mr. Mitchell stated he recalls that Officer Sgroi arrested him for obstruction of justice after the search on Brendon Tomlinson.
[48] Mr. Mitchell’s evidence was in accord with Officer Sgroi’s that when he was arrested the officer read him his rights to counsel and told him he could contact a lawyer or duty counsel. Mr. Mitchell said he told the officer he wanted to talk to a lawyer. He stated that Officer Sgroi told him he could not call a lawyer yet, I assume, for the same reasons of privacy and safety.
[49] Mr. Mitchell admitted he continued to say his name is Brendon Mitchell even after he was arrested. In chief, Mr. Mitchell testified he gave the false name because he was afraid. He was being investigated for a serious gun crime. He said he gave the name “in the heat of the moment”. Crown counsel challenged Mr. Mitchell that he could not have given the false names in the heat of the moment because he maintained the lie for about ½ hour from the time he was detained until he was arrested. Mr. Mitchell responded that he did not think it through. He was just scared.
[50] Again, in contrast to Officer Sgroi’s evidence, Mr. Mitchell testified he gave his real name after he was arrested for obstruction of justice. Mr. Mitchell agreed that based on his estimates of time that he gave his real name about 40 minutes after he gave the name Brendon Chevannes. Crown counsel challenged Mr. Mitchell that he was lying about when he gave his real name. He pointed to police search records that show that the name Brandon Mitchell was searched at 5:22 a.m. and the name O’Shane Mitchell was searched at 8:06 a.m., about 2½ hours later. Mr. Mitchell insisted that he gave his real name to Officer Sgroi while at unit 613 after he was arrested.
[51] Mr. Mitchell admitted when asked by Officer Sgroi that he did not tell the truth about having no previous dealings with police. In fact Mr. Mitchell has a criminal record for failure to attend court, obstruct police and possession of property obtained by crime.
Prelude to the Search of the Cellphone
Officer Sgroi’s Evidence
[52] Officer Sgroi testified he continued to question Mr. Mitchell about his identity. According to Officer Sgroi, Mr. Mitchell mentioned he had a cellphone that contained photos that would show he is Brendon Chevannes. Mr. Mitchell described his cellphone as a white I-Phone in a red case which was in the bedroom.
[53] The officer testified that Mr. Mitchell volunteered to give him access to his cellphone. He said he did not ask Mr. Mitchell to produce his cellphone. He said he was not aware Mr. Mitchell had a cellphone until he said he did. What the officer said he understood was that it was through the cellphone that Mr. Mitchell was attempting to convince him of the name Brendon Chevannes.
[54] Officer Sgroi said Mr. Mitchell retrieved the cellphone from the bedroom. Then he rethought his evidence and said he did not recall whether he or Mr. Mitchell went to get the cellphone. The officer found a driver’s licence between the case and cellphone in the name of “Jaquille Penny”.
[55] The cellphone was password protected. Officer Sgroi testified that he asked Mr. Mitchell to unlock the cellphone and Mr. Mitchell did so and handed it to him. The officer indicated Mr. Mitchell was handcuffed to the front so he could unlock his cellphone.
[56] In answer on cross-examination to questions about his authority to search the cellphone Officer Sgroi testified that Mr. Mitchell gave him his consent to do a search.
Mr. Mitchell’s Evidence
[57] Mr. Mitchell testified that after he told Officer Sgroi his real name following his arrest, Officer Sgroi asked him how he could believe O’Shane Mitchell was his real name. Similar to Officer Sgroi’s evidence, Mr. Mitchell testified that he mentioned that he had a cellphone in Shaquille Woodcock’s bedroom. At this point Mr. Mitchell’s evidence again departs from that of the officer’s evidence in a significant way.
[58] Mr. Mitchell’s evidence is that he told the officer he (Mr. Mitchell) could use his cellphone to call his mother and his mother could confirm his identity as O’Shane Mitchell. He stated that his mother would not lie to the police for him and she would come to the police with his passport. According to Mr. Mitchell, Officer Sgroi told him he could not use his cellphone while he was under arrest.
[59] Mr. Mitchell testified he then decided to give the officer his cellphone only to call his mother. Like Officer Sgroi’s evidence, Mr. Mitchell testified he put his password in the cellphone to unlock it. Mr. Mitchell denied he gave the cellphone to Officer Sgroi to search his photos. He insisted that he consented to the officer using his phone only to call his mother.
The Search of the Cellphone
Officer Sgroi’s Evidence
[60] Officer Sgroi testified he intended only to look through the photo gallery on the cellphone. In answer to questions on cross-examination about how a photo could assist to identify Mr. Mitchell, the officer said he thought he might find a student card or other photo identification in a photo of the male standing in front of him. The officer indicated he did not intend to look anywhere else.
[61] In answer to the further question as to why he did not allow Mr. Mitchell to search the cellphone in front of him the officer responded that Mr. Mitchell could call someone that could pose a security risk or Mr. Mitchell could delete information relevant to the investigation. The officer indicated that at this point there was an expectation, given this was a firearm case, that the police would obtain a warrant to search the cellphone.
[62] In response to a question as to why he did not wait for a search warrant to search the cellphone Officer Sgroi testified that Mr. Mitchell gave him the cellphone and consented to the search. He added he would be criticized if he did not confirm the identity of Mr. Mitchell and he thought he could obtain it from the cellphone.
[63] Officer Sgroi testified about the process he used when searching the cellphone.
[64] The officer testified he started on the home screen. He testified he went to the photo gallery where he saw photo folders which he opened. He testified he did not see many if any photos of Mr. Mitchell in the main gallery. The officer stated that he then looked at the deleted photos folder where he found some photos depicting Mr. Mitchell.
[65] Officer Sgroi was shown a package of photos copied from the deleted folder. The officer stated that he viewed photos 1, 3, 4, 5 and 6. Photo #2 is a photo of Mr. Mitchell holding a firearm on his lap wearing light blue-coloured jeans and a black belt. In the package of exhibit photos is a blown up version of photo #2 that was located in the deleted folder. The blow up shows a serial number UMS130 (officer was not sure whether the “S” was a “5”) on the firearm.
[66] Officer Sgroi was asked why he did not arrest Mr. Mitchell when he found the photo of him holding a firearm. The officer testified he was not certain from the photo whether it was a real firearm or not. To confirm this he said he would have to consult an expert and the Crown about what charges should be laid.
[67] Officer Sgroi acknowledged that the photos did not assist him to identify Mr. Mitchell. He testified that he did not intend to look at the emails but he did because he also thought emails might disclose Mr. Mitchell’s identity.
[68] The officer said he thought Mr. Mitchell’s full name might be in his email address. He found an email from the Royal Bank of Canada that contained a salutation, “Hi O’Shane Mitchell.” A copy of that email is in evidence. The officer said at this point he concluded it was a good likelihood that O’Shane Mitchell was his name. But he said he was still uncertain about that name because Mr. Mitchell had lied about this.
[69] Officer Sgroi said he might have gone into an App like Instagram but he did not recall. The officer was shown a form he filled in on the “found ins” in unit 613. He noted “stack or starve2five” which he said was the Instagram account name for Mr. Mitchell’s Instagram account.
[70] According to Officer Sgroi, Mr. Mitchell acted exasperated that he had located his name in the emails. This made the officer believe that might be his name. The officer said he felt confident that he had confirmed the name so the RBC email was the last thing he looked at. Officer Sgroi then took pictures of the photos on Mr. Mitchell’s cellphone with his own cellphone. He testified that he arrested Mr. Mitchell at about 6:00 a.m. and read him his rights to counsel. The officer left the unit at about 9:30 a.m. for 12 Division.
Mr. Mitchell’s Evidence
[71] Mr. Mitchell tells an entirely different version of what happened during the search of his cellphone.
[72] Mr. Mitchell testified that he was standing facing Officer Sgroi as he searched his cellphone and he could see what he was looking at. He said he saw him pass by the contacts directory where his mother’s phone number would be. Mr. Mitchell said he then saw Officer Sgroi move to the main screen and start clicking various Apps like Snapchat. Mr. Mitchell said the officer said to him, “How do you know I won’t find your name in Snapchat?” Mr. Mitchell testified he responded there is no way that he would find his name in any social media App.
[73] Mr. Mitchell testified the officer was “snooping” around Snapchat for a while and then went into Instagram and repeated the question in relation to Instagram and Mr. Mitchell repeated the same answer. In-chief, Mr. Mitchell was shown the notation “stack or starve2five” on the found-Ins sheet completed by Office Sgroi and he confirmed that is the name on his Instagram account. He testified he did not give that name to the officer.
[74] Mr. Mitchell testified he continued to tell Officer Sgroi that the only way he could clarify his name was to call his mother. According to Mr. Mitchell, the officer then moved to the home screen and started searching his photos. To the question in-chief as to whether he had any photos in his cellphone that could confirm his name was Brendon Chevannes, he said there were not. He insisted he would have no reason to ask the officer to go into his cellphone to prove his name.
[75] Mr. Mitchell said he got frustrated and angry that the officer was going through his personal information. He said he tried to reach for the phone and Officer Sgroi asked 2 officers to restrain him to the ground. Mr. Mitchell testified that while he was on the ground, the officer continued to go through his photos. He said the officer started to get quite excited at what he was seeing on his cellphone. According to Mr. Mitchell, Officer Sgroi would click on a photo and while Mr. Mitchell was on the ground the officer would say, “Hey, what’s this?” Mr. Mitchell stated that the officer got increasingly happy with every photo he saw and he would say, “What’s this? Look what I see.”
[76] Mr. Mitchell testified he remained on the ground not looking at his cellphone and eventually stopped acknowledging Officer Sgroi. He asked if he could talk to a lawyer and Officer Sgroi told him he could speak to a lawyer at the police station. Shortly afterwards, Mr. Mitchell stated that the police began coming for him, Mr. Reid and Shaquille Woodcock.
Recall Evidence of Officer Sgroi
[77] Crown counsel brought an application pursuant to the rule in Browne and Dunn to recall Officer Sgroi because the defence failed to cross-examine him on several areas of evidence she adduced in questioning Mr. Mitchell.
[78] I decided fairness required that Officer Sgroi be permitted to respond to another allegation, that Mr. Mitchell only consented to Officer Sgroi using his cellphone to call his mother. Officer Sgroi denied Mr. Mitchell restricted his consent to the officer calling his mother. Officer Sgroi indicated that in any case officers only use police-issued phones to make calls if necessary, not suspects’ personal cellphones.
[79] I also allowed Officer Sgroi to respond to Mr. Mitchell’s allegation about the officer going through his Apps and mocking him as he searched through his photos. And related to this, I allowed Officer Sgroi to testify about Mr. Mitchell’s accusation that when Mr. Mitchell got frustrated and reached for the cellphone Officer Sgroi got 2 officers to take him to the ground.
[80] Officer Sgroi also denied that he searched Apps, mocked Mr. Mitchell and asked officers to bring him to the ground when Mr. Mitchell got frustrated.
End of the Hold and Detain and Transport of O’Shane Mitchell
[81] Officer Sgroi testified other officers began to arrive at 6:55 a.m. on September 3rd to transport Mr. Mitchell, Mr. Reid and Mr. Woodcock to the police station. Officer Sgroi testified that there was a long delay in transporting the accused because of the scarcity of officers. Two from another team were required to assist with transport.
[82] Mr. Mitchell was the last to be turned over for transport to Officers Michael Sanguinetti and Nelson Fong who transported Mr. Mitchell to 12 Division at about 8:28 a.m. Officer Sgroi’s evidence was that to his knowledge there were no other officers available before 8:28 a.m. to transport Mr. Mitchell.
At 12 Division
Officer Sgroi’s Identification of Firearm from Cellphone Photographs
[83] Officer Sgroi testified he began doing case preparation at the station at approximately 9:30 a.m. on September 3rd. During case preparation, Officer Sgroi examined the firearm that was seized from the scene. The officer set out to explain the basis of Mr. Mitchell’s eventual arrest on the firearm charges.
[84] Officer Sgroi inspected the firearm and noted the serial number on the slide. He recalled the photo in Mr. Mitchell’s cellphone. He testified he particularly recalled the “UMS” in the serial number. The officer testified that seeing this made him realize the serial number on the firearm in the photo, and the serial number on the slide of the firearm in the police station, were the same. The officer’s notes indicate that he arrived at this conclusion at around 12:35 a.m. on September 3rd.
[85] The officer testified that the clothing Mr. Mitchell was wearing at 15 Martha Eaton Way in the surveillance of the lobby, the light blue-coloured jeans and black hoodie, are the same as he was wearing in unit 613 and the same clothing he was wearing at the police station in the booking video at about 9:12 a.m. Officer Sgroi testified he saw Mr. Mitchell wearing the same belt in the photo from his cellphone, where he is holding the firearm on his lap, as he was wearing in unit 613 and at the police station.
[86] Officer Sgroi’s view was that Mr. Mitchell was the person the police observed in light blue-coloured jeans and a black sweatshirt displaying the characteristics of an armed person. Officer Sgroi concluded from that evidence there was reasonable and probable grounds to charge Mr. Mitchell with the firearm offences.
The Level 3 Search
The Police Evidence
[87] Mr. Mitchell was paraded before the booking sergeant, Sergeant Bergeron, on September 3rd at about 9:12 a.m. Rights to counsel and caution were given by the sergeant. Sergeant Bergeron approved a level 3 search (strip search) of Mr. Mitchell.
[88] Officer Sanguinetti and Officer Nelson Fong were tasked to do the strip search. They testified the decision to conduct a strip search was based in part on the fact that Mr. Mitchell was charged with possession of marijuana and the concern related to that was that he could have other substances dangerous to himself and other inmates secreted on his body. The officers testified that because a dangerous weapon had been recovered and there was suspicion another firearm existed, there was a possibility that Mr. Mitchell could have a dangerous weapon hidden on his person that could endanger the police, himself or other inmates. Officer Sanguinetti testified that he did not receive any specific information that Mr. Mitchell might have a firearm on his person. He said he was aware a weapon was recovered but he had no details about who had the weapon or when it was recovered.
[89] Officers Sanguinetti and Fong began the level 3 search at 9:21 a.m. According to the officers, they conducted a customary search where they allowed Mr. Mitchell to remove one of his garments at a time starting with the upper garments then proceeding to his lower garments. The officers testified that after the search of each area, garments were in turn returned to Mr. Mitchell. They say Mr. Mitchell put each garment back on. Their evidence was that he was never fully naked. The strip search ended at 9:26 a.m.
[90] Officers Sanguinetti and Fong were cross-examined about their specific recall of the level 3 search. This required them to look back almost 2 years. Both officers conceded that they had done a multitude of strip searches over that period. Neither officer had a specific memory of the circumstances of Mr. Mitchell’s search. Both officers’ memo book notes contained no details of how the search was conducted. They wrote only a few words. Officer Sanguinetti’s notes state “9:21 in 9:26 out”. Officer Fong’s notes state “l 3 search male.” The officers could only speak in terms of their normal practice.
[91] There is a video recording taken at the booking desk at 10:51:30 a.m. on September 3rd showing Mr. Mitchell wearing a short-sleeved orange jumpsuit. The officers testified in-chief that they gave Mr. Mitchell all his clothes back and he then took them off again to put on the jumpsuit.
[92] Officer Sanguinetti’s memo note states, and he testified, that he seized Mr. Mitchell’s clothes after the search. The defence put the suggestion to Officer Sanguinetti that this could be interpreted as the officers seizing the clothes immediately after the search. The defence questioned the officer as to whether that evidence meant that the police seized his clothes and then gave him the orange jumpsuit to put on which would have left Mr. Mitchell with only his under shorts for a period of time. Officer Sanguinetti conceded that the note could be interpreted that way but he does not recall if that happened. Neither could Officer Fong recall how the seized clothes were handled in relation to Mr. Mitchell putting on the orange jumpsuit.
Mr. Mitchell’s Evidence
[93] Mr. Mitchell testified as he took off his clothes the officers took his clothes from him one garment at a time but did not return each article before he removed the next. Mr. Mitchell testified that the officers informed him they were going to seize his clothing for forensics. It is his evidence that they stripped him down to his boxers, told him to take off his boxers and asked him to bend down and touch his toes and spread the cheeks of his buttocks. Mr. Mitchell contends he was fully naked for about 30 seconds to one minute when the officers gave him back his boxers.
[94] The officers then gave him an orange short sleeved jumpsuit. In answer to the question in cross-examination as to whether the officers gave him back all of his clothes and allowed him to put them back on and take them off again before they gave him the orange jumpsuit, Mr. Mitchell’s response was that they did not do this. On his evidence, he was not given back his clothes. Mr. Mitchell was then taken to a holding cell.
Reason for Arrest for Firearm Charges
The Police Evidence
[95] There is no issue that Officer Sgroi promptly informed Mr. Mitchell of the reason for his arrest on the obstruction of justice charge. There is an issue about the promptness with which Mr. Mitchell was told of his arrest for the firearm charges.
[96] Officers Sgroi and Wilson testified about the paperwork and other duties required during the hours after the accused were brought to the station. Officer Sgroi returned to the station from unit 613 at 9:30 a.m. on September 3rd.
[97] In terms of timing on putting together the evidence on the firearm, the photo of the firearm was discovered by Officer Sgroi on the cellphone at about 6:00 a.m. on September 3rd. Officer Sgroi came to the conclusion at about 12:35 a.m. on September 3rd that the firearm seized was the same one depicted on Mr. Mitchell’s lap in the photo.
[98] Officer Wilson’s evidence is that the decision to arrest Mr. Mitchell on firearm charges was made at about 4:30 p.m. on September 3rd. He testified that on September 3rd at 7:34 p.m., while Mr. Mitchell was in a holding cell at the station, he advised Mr. Mitchell of his firearm charges. In answer to the question in cross-examination of what the police were doing between 4:30 p.m. and 7:34 p.m., the officers said during that period the police were very busy with paperwork.
[99] Officers Sgroi and Wilson testified that the tasks were increased by the fact there were 7 accused that had to be processed. Tasks involved updating other officers on the investigation and for bail, the officers were required to prepare synopses, prosecution summaries, prepare the backgrounds and criminal records of the accused through computer searches of each accused. Downloading video and photographic evidence into the computer system also had to be completed.
Right to Counsel
The Police Evidence
[100] There is no issue in relation to the promptness with which Mr. Mitchell was informed of his reason for arrest for the obstruction charge. There is an issue about the delay in being able to speak to counsel.
[101] Officer Sanguinetti testified that on September 3rd at 10:45 a.m. he provided Mr. Mitchell the cellphone so he could speak to duty counsel. His evidence is that Mr. Mitchell spoke to duty counsel at that time about his obstruction of justice charge.
[102] Officer Sgroi explained that while Mr. Mitchell was in unit 613 before he was transported to the station there was no opportunity to provide a private space for him to call a lawyer. His evidence was that from the time Mr. Mitchell was detained at about 5:45 a.m. on September 3rd to his arrest about at 6:00 a.m. there were insufficient officers available to transport Mr. Mitchell to the station to speak to a lawyer. There were 7 persons to transport. And further, from the arrest at 6:00 a.m. until Mr. Mitchell was transported at 8:28 a.m. police resources remained scarce which the officer testified accounts for that significant delay.
[103] There was further delay once Mr. Mitchell arrived at the station. Officers Sgroi and Wilson explained that the over 2-hour delay from 8:30 a.m., when Mr. Mitchell arrived at the station, until 10:45 a.m. when he was able to call counsel resulted from the substantial amount of case preparation the police were tasked with for 7 arrestees.
[104] There is no issue about the promptness of Mr. Mitchell’s opportunity to speak to counsel about his firearm charges. He was arrested at 7:43 p.m. on September 3rd and he spoke to a Legal Aid lawyer at 8:30 p.m. on September 3rd.
Mr. Mitchell’s Evidence
[105] Mr. Mitchell testified that after the level 3 search was completed, which according to police evidence was at about 7:26 a.m., the police asked him if he wanted to speak to a specific lawyer. Contrary to the officers’ evidence, Mr. Mitchell contends he asked to speak to a lawyer at Ted Royle’s firm. He stated that the police came back to him with a lawyer from Ted Royle’s firm on the line. According to Mr. Mitchell he spoke to a lawyer at the firm.
[106] Mr. Mitchell testified he was subsequently returned to a cell and told about his firearm charges. According to him, he was asked again if he wanted to speak to a lawyer at Legal Aid. Mr. Mitchell said that he was put in touch with a Legal Aid lawyer whose name he did not recall. He said he did not recall whether he asked to speak to a specific lawyer at that time.
Extraction of Mr. Mitchell’s Cellphone
[107] Officer Wilson sent Mr. Mitchell’s cellphone for extraction. The officer was asked why the cellphone was sent for extraction when the focus of the investigation was on the shooting incident and Mr. Woodcock who was suspected of being the shooter. It was put to Officer Wilson in cross-examination that the offence set out in Appendix B of the ITO is not related to the reason he sent the firearm for extraction. That is, the search warrant was directed toward the reasonable belief that something related to the shooting would be found at the target address.
[108] Officer Wilson admitted it was an error to send the cellphone for extraction. He pointed to the items listed in Appendix A which included cellphones and with the approval to search for them, he in error, did not take into account the focus of the search. The officer testified that he did not learn of his error until months later in conversations with other officers after the extraction report came back.
Failure to File a Report to Justice
[109] The defence claims a Charter breach under s. 8 on the basis the police contravened s. 489.1 of the Criminal Code which requires the police to file with a justice of the peace a Report to Justice containing a record both of property seized by the police under warrant and those seized without a warrant. This allows the court to review and supervise the detention of the seized property and ensure the property is returned to its lawful owners as soon as practicable.
[110] The police filed a Report to Justice only for the physical cellphone but not for the extraction of the hard drive. The Crown’s position is that only one Report to Justice was required to be filed because the hard drive and information it contained remained inside the cellphone. The hard drive itself was not seized.
[111] The defence’s position is that the extraction contains very private and intimate information that remains in the custody of the police. Mr. Mitchell is thereby deprived of his s. 8 right to have his private information in the hands of the police supervised by the court.
APPLICABLE LAW AND ANALYSIS
Summary of Mr. Mitchell’s Charter Claims
[112] Mr. Mitchell claims under s. 9 (arbitrary detention), s. 8 (unlawful strip search and unlawful search and seizure of the cellphone, failure to file Report to a Justice), s. 10(a) (not being informed promptly of reason for arrest for firearm charges), s. 10(b) (untimely facilitating rights to counsel) and s. 11(e) (delay in taking accused for show cause).
Defining the Charter Claims
[113] Crown counsel raises Mr. Mitchell’s right to challenge the police entry into unit 613 and their conduct in relation to Mr. Mitchell while engaging with him.
[114] There is no dispute that Mr. Mitchell did not reside in that apartment. He resided with his mother in Mississauga at the time. He was an invitee in the early morning hours of September 3, 2017. It is the Crown’s position that the law makes it clear that a person who seeks to raise a challenge under s. 8 of the Charter with respect to police conduct within a premises must have standing to do so.
[115] Crown counsel relies on case authorities on challenges to the lawfulness of police searches on premises the police have targeted for crime. In the case at hand, the police were investigating a shooting that involved at least 2 shooters. From observing surveillance the police suspected a shooter or shooters and that a firearm may have entered unit 613.
[116] The Supreme Court of Canada in R. v. Edwards held that a person lacks standing to challenge police entry and search of a premise unless they have a reasonable expectation of privacy in relation to the premises. The Court enumerated factors to consider in determining a reasonable expectation of privacy. The factors require the presence of an accused at the premises, their possession of the premises, control and use of the premises and their ability to regulation access of others to the premises: [R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, at paras. 33 and 39, (S.C.C.)].
[117] Mr. Mitchell satisfies only the factor of being present in unit 613 when the police entered. Hence, he would lack standing to challenge the search of the unit and the seizure of items on the premises. However, Mr. Mitchell’s s. 8 claim is not in relation to the police search or their seizure of contents under the warrant. Mr. Mitchell’s claim arises from police conduct in relation to him personally that occurred before they executed the search warrant.
[118] What Mr. Mitchell raises is a claim under s. 9 of the Charter. He asserts that he was arbitrarily detained when the police entered and held him in unit 613 for some 3 hours before he was removed from the unit and transported to the police station.
[119] Mr. Mitchell’s claim in relation to unit 613 is that Officer Sgroi breached his protection under s. 8 of the Charter against unreasonable search and seizure of his cellphone. He claims the police were not authorized to enter to the very private areas of his life contained in his cellphone.
Arbitrary Detention
[120] The defence frames its claim in arbitrary detention but relies on considerations that arise in the context of a challenge to the lawfulness of police conduct on the entry into premises. I agree with Crown counsel’s position, that the defence bases their position on a claim that is not open to Mr. Mitchell as an invitee. The defence bases the allegation of arbitrariness on a claim that the police entered the unit without a warrant where no exigent circumstances existed. The problem with that position is that Mr. Mitchell cannot challenge the police motivation for and manner of entering the unit, whether there were exigent circumstances or not, because Mr. Mitchell has no standing to challenge the police conduct.
[121] Aside from rejecting the defence’s attempt to get around the standing issue a determination of whether Mr. Mitchell has a legitimate challenge under section 9 requires a look at first principles.
[122] Case law is clear that police authority on detention extends to the preservation of peace, the prevention of crime and the protection of life and property: [R. v. Dedman, 1985 41 (SCC), [1985] 2 S.C.R. 2 (S.C.C.)]. During a detention police officers are obligated to ensure officer safety and the safety of the public. Police officers may detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that the detention is reasonably necessary on an objective view of the circumstances: [R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 (S.C.C.)].
[123] The circumstances confronting the police amply satisfy the criteria set out in the case law. The police were investigating a shooting where there were at least 2 firearms involved. Before they entered unit 613 only one firearm had been located. They had observed on surveillance the movement of persons displaying characteristics of carrying a firearm. Two of those persons, one being Mr. Mitchell entered unit 613. Just before the police entered unit 613 a woman attempting to leave the building with a firearm was arrested.
[124] In these circumstances it was not arbitrary for the police to detain the occupants of unit 613 to control the situation in the unit, to prevent the commission of further crime and to ensure the safety and security of the police, the occupants and the public. Further, the police suspected that Mr. Mitchell might have carried a firearm into the unit.
[125] Even were I required to decide the exigency issue in relation to the manner of search of the premises I would find there was clear exigency in the circumstances. Again, the police were investigating a shootout. The police saw surveillance that showed 2 males from the shooting scene displaying characteristics of persons carrying a firearm. They saw the movement of the same persons out of and into units 2413 and 613. They saw a female and male attempt to escape the building with a firearm.
[126] I find the evidence shows imminent danger of the loss, removal, destruction or disappearance of the evidence sought. The police had reasonable grounds to suspect that entry into unit 613 was necessary to prevent imminent bodily harm or death to any person given the shooting that had occurred and the fear of the presence of a firearm in unit 613: [Criminal Code, s. 529.3; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202 (S.C.C.)].
[127] I find no breach of s. 9 of the Charter.
Section 8 Search and Seizure of the Cellphone
[128] A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable: [R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, at para. 24, (S.C.C.)]. Absent a warrant a police search is presumed to be unreasonable. When a search is warrantless the Crown has the burden of showing that the search was on a balance of probabilities reasonable: [R. v. Collins, at para. 22].
[129] The current benchmark authority on the limits of police power to search a cellphone is the Supreme Court decision in R. v. Fearon. That case involves a firearm investigation where the police conducted a pat down search of the accused incident to an arrest. The police searched the accused’s cellphone. The issue before the court was the proper scope of the common law power to search a cellphone incident to an arrest. The search of the cellphone uncovered incriminating text messages and photos of a handgun: [R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621 (S.C.C.)].
[130] The Supreme Court points out that decisions on the limits of the police power to search incident to an arrest are very much fact driven:
The courts will rarely be able to establish any categorical limit applicable to all arrests and all purposes incidental to them. Moreover, arrests relate to many different crimes and are made in many different circumstances. It follows that the permissible scope of searches incident to arrest will be affected by the particular circumstances of the particular arrest.
[R. v. Fearon, at para. 13]
[131] The Supreme Court looked at the scope of the common law search incident to arrest power in the context of investigations of the types of crimes that due to urgency compel a prompt search such as those involving firearms, violence or drugs. The court counter posed this against the countervailing expectation of privacy in some circumstances that an individual has over their most personal and intimate information.
[132] On the general use of the power the court observed:
As I have explained, this common law power is extraordinary because it requires neither a warrant nor reasonable and probable grounds. That the exercise of this extraordinary power has been considered in general to meet constitutional muster reflects the important law enforcement objectives which are served by searches of people who have been lawfully arrested. As was said in Caslake, in the context of arrest, the need for police “to gain control of things or information ... outweighs the individual’s interest in privacy”: para. 17.
[R. v. Fearon, at para. 45]
[133] On the application of the power in the context of an investigation involving cellphones the court made the following remark:
Prompt access by law enforcement to the contents of a cell phone may serve the purpose of identifying accomplices or locating and preserving evidence that might otherwise be lost or destroyed. Cell phones may also be used to evade or resist law enforcement. An individual may be a “scout” for drug smugglers, using a cell phone to warn criminals that police are in the vicinity or to call for “back up” to help resist law enforcement officers … In such situations, a review of recent calls or text messages may help to locate the other perpetrators before they can either escape or dispose of the drugs and reveal the need to warn officers of possible impending danger.
[R. v. Fearon, at para. 48]
[134] On the significant privacy concerns that emerge with the prospect of searching a suspect’s cellphone the court observed:
It is well settled that the search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other “places”: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657 (S.C.C.), at paras. 38 and 40-45. It is unrealistic to equate a cell phone with a briefcase or document found in someone's possession at the time of arrest. As outlined in Vu, computers — and I would add cell phones — may have immense storage capacity, may generate information about intimate details of the user's interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinks that it has been destroyed, and may provide access to information that is in no meaningful sense “at” the location of the search: paras. 41- 44.
[R. v. Fearon, at para. 51]
[135] Common law rules make it possible to curb the occasion and breadth of the invasion of privacy in a cellphone search.
The common law requirement that the search be truly incidental to a lawful arrest imposes some meaningful limits on the scope of a cell phone search. The search must be linked to a valid law enforcement objective relating to the offence for which the suspect has been arrested. This requirement prevents routine browsing through a cell phone in an unfocussed way.
[R. v. Fearon, at para. 57]
[136] This rule restricts the indiscriminate and uncontrolled seizure of cellphones and boundless incursions through their contents with unclear and undefined investigative objectives.
[137] As with other types of searches, when a search of a cellphone comes into question, the court must have the ability to review and scrutinize the details of the steps in the search particularly in view of the search being without authorization:
Finally, officers must make detailed notes of what they have examined on the cell phone. The Court encouraged this sort of note keeping in Vu in the context of a warranted search: para. 70. It also encouraged that notes be kept in the context of strip searches: Golden, at para. 101. In my view, given that we are dealing here with an extraordinary search power that requires neither a warrant nor reasonable and probable grounds, the obligation to keep a careful record of what is searched and how it was searched should be imposed as a matter of constitutional imperative. The record should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. After-the-fact judicial review is especially important where, as in the case of searches incident to arrest, there is no prior authorization. Having a clear picture of what was done is important to such review being effective. In addition, the record keeping requirement is likely to have the incidental effect of helping police officers focus on the question of whether their conduct in relation to the phone falls squarely within the parameters of a lawful search incident to arrest.
[R. v. Fearon, at para. 82]
Application to Search of Mr. Mitchell’s Cellphone
[138] Unlike the facts in Fearon, the police in the case before me did not find the cellphone incident to a pat down search. The cellphone was not on Mr. Mitchell’s person. Either Mr. Mitchell retrieved the cellphone from the bedroom and handed it to the officer or the officer did so with Mr. Mitchell’s permission. Whatever the case, Mr. Mitchell allowed Officer Sgroi to take hold of his cellphone. So Mr. Mitchell does not contest the fact of Officer Sgroi having his cellphone for a limited period. He in fact told the officer about his cellphone and informed him where it could be located. Mr. Mitchell then voluntarily unlocked it for the officer to use it. However, it is Mr. Mitchell’s evidence that he gave restricted permission to use the cellphone, he contends, for the limited purpose of calling his mother to confirm his identity.
[139] An observation is in order about the fact that Mr. Mitchell voluntarily unlocked his cellphone with his password. The court in R. v. Fearon considered cellphones that do not have password protection and the owners’ reasonable expectation of privacy over the contents of the cellphones in that circumstance. The court was responding to the suggestion by some courts that s. 8 protection of cellphones varies depending on whether the cellphone is password-protected or not. R. v. Fearon observed:
I would not give this factor very much weight in assessing either an individual's subjective expectation of privacy or whether that expectation is reasonable. An individual’s decision not to password protect his or her cell phone does not indicate any sort of abandonment of the significant privacy interests one generally will have in the contents of the phone.
[R. v. Fearon, at para. 53]
[140] I think the same holds true if an arrestee voluntarily unlocks their cellphone with their password and consents to a limited search of their cellphone by the police. Unlocking the cellphone particularly when restrictions are voiced does not mean the person has abandoned the privacy interests over all the very personal and intimate contents of the cellphone. I find this applies to Mr. Mitchell and the police search of his cellphone.
[141] As far as standing goes to challenge a search Mr. Mitchell certainly has a reasonable expectation of privacy and thus standing to seek protection over the very private realm of his cellphone.
[142] My decision on whether the cellphone was lawfully searched is grounded in credibility findings. Officer Sgroi and Mr. Mitchell present opposing fact scenarios about the motivation behind and nature of the search.
[143] When asked for his identity Mr. Mitchell gave the police more than one false name. Mr. Mitchell admits he gave the name O’Shane Tomlinson to an unnamed officer. There were no hits on that name. There is a discrepancy between his and Officer Sgroi’s evidence as to how many false names Mr. Mitchell gave him. Mr. Mitchell says he gave Officer Sgroi the name Brendon Chevannes and the officer spelled it incorrectly as Brandon for the search and according to Mr. Mitchell he then gave the officer the correct spelling of the name.
[144] Officer Sgroi stated that Mr. Mitchell gave him the two names Brendon Chevannes and Brandon Chevannes and the officer searched each of those names in turn and there were no hits on either name. Officer Sgroi then cautioned Mr. Mitchell on an obstruction of justice charge for giving false names. When the officer learned his mother’s surname was Tomlinson he searched Brendon Tomlinson. Mr. Mitchell testified he did not give the officer that name and the officer did not recall whether that was the case. There were no hits.
[145] On both Mr. Mitchell’s and Officer Sgroi’s evidence Mr. Mitchell gave two false names although their evidence might differ as to what the false names were.
[146] Officer Sgroi’s evidence is that he arrested Mr. Mitchell for obstruction of justice after he got no hits for Brendon Tomlinson. Mr. Mitchell’s evidence is that he gave the officer his real name after Officer Sgroi arrested him. This is where the important chain of differences between Mr. Mitchell’s and Officer’s Sgroi’s evidence begins. The officer says Mr. Mitchell did not give him his real name before he searched the cellphone and Mr. Mitchell says he did. This point in the evidence defines the divergence in the evidence as to what consent Mr. Mitchell gave for the officer to use his cellphone.
[147] Officer Sgroi’s evidence is that Mr. Mitchell told him that there was proof in his cellphone photos that his name is Brendon Chevannes. The officer contends Mr. Mitchell consented to him searching the cellphone for those photos, photos that would show he is Brendon Chevannes.
[148] That evidence naturally gave rise to the question as to how a person’s name could be confirmed from a photo. Officer Sgroi testified that he thought maybe he would find a photo of the man he had just arrested holding a student photo identification card. I guess the officer would expect the identification card to contain the name Brendon Chevannes, and I am not sure, a photograph of the person standing in front of him? The officer did not really explain this. There is no evidence from the officer that he asked or Mr. Mitchell told him what photo to look for.
[149] Mr. Mitchell denied Officer Sgroi’s version of his consent saying that he only agreed to the officer using the cellphone to call his mother so his mother could confirm his real name. He said he expected the officer to go into his contacts list and dial his mother’s number. Mr. Mitchell testified there were no photos on his cellphone that would prove what his name is. In particular there were no photos that would prove the false name Brendon Chevannes.
[150] Officer Sgroi offered a justification for the search. His evidence was that he had just arrested Mr. Mitchell for obstruction of justice for falsely identifying himself and that the search of the cellphone for his identity was lawfully incidental to the arrest for obstruction.
[151] Officer Sgroi’s evidence is that he started the search on the home page and clicked on the photo gallery. He indicated he might have gone through the call logs on the cellphone as well. When he clicked on the photo gallery this took him to a number of folders of photos. He says he searched through a number of folders. Officer Sgroi went on to search the deleted folder. It was in that folder that he found the photos of the firearm and of Mr. Mitchell with the firearm on his lap. Officer Sgroi took pictures with his cellphone of the photos he found in Mr. Mitchell’s cellphone.
[152] The officer went further. Officer Sgroi also went into and searched emails. He found an email from a bank with O’Shane Mitchell’s name in the salutation. Officer Sgroi’s evidence is that this is where he learned what he believed was Mr. Mitchell’s real name.
[153] There is a question of which if any Apps Officer Sgroi searched. In evidence is a “Found-Ins” sheet the officer completed for Mr. Mitchell. Officer Sgroi confirmed that he noted on the form Mr. Mitchell’s account name for his Instagram account. Officer Sgroi however said he did not recall whether he went into the Instagram App.
[154] I took a careful look at the evidence. I find considering the evidence on the search in its totality that Mr. Mitchell’s evidence makes more sense. It just has more of a ring of truth particularly insofar as why he allowed Officer Sgroi to use his cellphone.
[155] Looking at Officer Sgroi’s evidence, it does not stand to reason that there would be a reasonable likelihood the cellphone would contain a photo of Mr. Mitchell holding identification of him containing a false name or even containing his real name for that matter. If there were such an unusual photo of him holding identification containing his picture and a false name it would have been logical for Mr. Mitchell to simply point it out to the officer.
[156] The other problem with the officer’s version is that it is well recognized that cellphones house the most intimate and personal revelations about a person’s life. There is evidence that the cellphone contained sexually intimate photos and Mr. Mitchell would surely have been mindful of that. He would also reasonably be aware that he had photos of the firearm in his cellphone even though they were in the deleted folder.
[157] Regular users of cellphones are aware that deleted items go into a deleted folder where the items remain accessible to the user. It is hard to imagine that a person being investigated by the police would volunteer that he has a cellphone nearby, hand over the cellphone to a stranger, to a police officer, and then consent to them looking through their photos, especially unlikely given the type of photos stored in the cellphone.
[158] I find it more reasonable, as Mr. Mitchell contends, that he gave his real name after he was arrested to try to get out of the charge. That makes common sense. When the officer did not believe that was his real name, Mr. Mitchell offered to prove his name by allowing the officer to call his mother. Mr. Mitchell stated that he even offered to have his mother come with his passport to prove his identity.
[159] Officer Sgroi responded that the police use only police-issued phones to make calls so he would not have used Mr. Mitchell’s cellphone to call his mother. The officer also posited that it would not be a police practice to have a person like a mother come to the scene of a crime for that reason. But I find Mr. Mitchell would not likely know police policies in this regard. It appeared he was just trying to find a way to prove his identity after lying about his name.
[160] Even on the fact that Mr. Mitchell gave his real name before he was arrested, given the fact he had given false names, it is understandable that Officer Sgroi would seek a way to obtain his real name. However, as I have found, browsing through the photos in the cellphone was not a plausible way to prove, what Mr. Mitchell admitted to the police before the search was a false identity.
[161] I cannot see a valid law enforcement objective for the search or a reasonable link to investigating the crime of obstruction of justice. Hence the search was not truly incidental to the arrest. I am only left to think that Officer Sgroi’s account of the reason for the search and of what he searched was contrived as a means to hide his true intention and what he really searched on the cellphone. Compounding this, as I will discuss below, is that he made no notes of the details of his search.
[162] Mr. Mitchell gives a very different account of the search.
[163] According to Mr. Mitchell, he was standing in front of the officer during the search of his cellphone close enough to see what the officer was doing. I accept his evidence that he saw Officer Sgroi bypass the contacts directory where his mother’s number would be and go into his photo folders. Mr. Mitchell contends as the officer went through his photos and Apps he would exclaim, “Hey, what’s this?” and “What’s this? Look what I see.”
[164] While the officer did not recall whether he went through Apps like Instagram the note on the Found-Ins sheet suggests to me that he did. He knew Mr. Mitchell’s account name. This tends to accord with Mr. Mitchell’s evidence of seeing the officer go into and search through his Apps. Further, it is a fact, as admitted by Officer Sgroi, that he went even further and searched through Mr. Mitchell’s emails. The officer testified he might have even gone through the call logs on the cellphone. He did not recall.
[165] Mr. Mitchell testified, and I find it understandable, that he grew very frustrated. Mr. Mitchell made the rather serious allegation that the officer made mocking remarks as he “snooped” through his photos and Apps. It is Mr. Mitchell’s evidence that he got angry and reached for the cellphone and Officer Sgroi -asked 2 officers to take him to the floor. Mr. Mitchell testified Officer Sgroi continued going through his cellphone but he gave up focussing on what the officer was doing while he was lying on the floor.
[166] I tend to believe Mr. Mitchell about his version of events on the search of the cellphone. Credibility findings are always challenging for triers of fact and I find this to be true in this case. A very careful examination of the evidence is critical.
[167] Mr. Mitchell was not truthful in some areas of his evidence. It is always problematic with credibility assessments when one tends to believe a witness on a major question but the witness is dishonest in other areas of their evidence. But like all evidence, each area of evidence where credibility as between witnesses is at issue the evidence must to be viewed in its entirety and weighed in light of the onus of proof and the party that bears that onus.
[168] The Crown bears the onus of proof on a balance of probabilities to prove the reasonableness of the search. I am fortified in my assessment of the evidence when I balance the reasonableness of Officer Sgroi’s evidence on the search of the cellphone against that of Mr. Mitchell.
[169] I find Officer Sgroi went to some lengths to advance what I found to be a patently implausible account of his motivation and the course of his search through the contents of Mr. Mitchell’s cellphone. The course of his search did not in my estimation align with the purported reason why he did the search. As I have concluded this could only be intended to cover up what really happened. Mr. Mitchell’s account on the other hand I found more readily accords with common sense.
[170] I also considered that Mr. Mitchell’s evidence was not completely at odds with Officer Sgroi’s. He did not deny giving false names. He did not deny he was informed of his arrest for obstruction and told of his rights to counsel promptly. He did not deny telling the officer he had a phone and consenting to the officer using his cellphone. He did not deny voluntarily using his password to unlock his cellphone for the officer. Mr. Mitchell did not accuse the officer of coercive measures to gain access to the cellphone.
[171] In weighing Mr. Mitchell’s credibility, I did take into account that Mr. Mitchell lied about his name and address on more than one instance. That is not excusable. It led to a criminal charge. However, as inexcusable as that is, I accept his evidence that he did that out of fear because I find it realistic that he would be scared about being investigated about a shooting. I accept that as the reason for his dishonesty but of course not as a valid or lawful excuse.
[172] I also considered the fact that Mr. Mitchell said he gave Officer Sgroi his real name after he was arrested, and the seemingly contradictory fact that the police search record shows the name O’Shane Mitchell was not searched until 8:06 a.m. Crown counsel suggests this means Mr. Mitchell did not give his real name hours earlier when his identity was being questioned. However, I find that just because the name was not searched until later does not preclude the possibility of him having told the officer his real name hours earlier. In fact, Officer Sgroi found what he believed was his real name in Mr. Mitchell’s emails also hours before the 8:06 a.m. search.
[173] I also considered that Mr. Mitchell was not truthful when Officer Sgroi asked him and he denied he had a criminal record. I also weighed this credibility issue in the mix of all the evidence I saw and heard and I decided this dishonesty did not have a meaningful impact on the more critical evidence I do believe.
[174] I was concerned when Crown counsel showed Mr. Mitchell the surveillance of the lobby of 15 Martha Eaton Way that captured the shooting and he vacillated as to whether he was the male in the light blue-coloured jeans and black hoodie. The fact is Mr. Mitchell was subsequently located in unit 613 and arrested wearing those clothes. Moreover, those facts are not in dispute. However, I also found the equivocation in that evidence did not affect my view of his credibility on the search of his cellphone.
[175] I also took an overall look at Mr. Mitchell and how he presented as a witness.
[176] I considered that Mr. Mitchell was not a sophisticated witness. He had never testified in a court proceeding. Mr. Mitchell is 23 years old and has a grade 11 education. This is in contrast to Officer Sgroi who is an officer with considerable experience with the police service. He presented as a seasoned and articulate witness with a confident easy way with words even under strenuous cross-examination.
[177] Mr. Mitchell underwent an aggressive cross-examination by an able and experienced Crown counsel. He was questioned for hours about minutiae of all sorts including chronologies of minor events and times and time periods which required him to look back nearly 2 years. I find to expect Mr. Mitchell, or any witness for that matter, to recall the type of details called for by many of Crown counsel’s questions would be to place an unreasonable burden on his memory.
[178] Mr. Mitchell displayed difficulty with words and concepts denoting time. This was demonstrated during cross-examination when he was asked about his use of words and phrases such as “in the heat of the moment”, “a moment or moments later”, “split second” and “immediately”. His answers revealed that his use and understanding of those words were not in line with conventional understanding of the words. At times he could not keep some of the lesser facts straight.
[179] Notwithstanding the credibility concerns I do not find in terms of his overall credibility that the shortcomings in his evidence overwhelm what I found eminently reasonable about what he consented to on the use by Officer Sgroi of his cellphone and what he described as the course of the search. And what is more, Mr. Mitchell’s credibility problems do not make Officer Sgroi’s evidence make more sense.
[180] The law requires the search be truly incidental to a lawful arrest. The search must be linked to a valid law enforcement objective relating to the offence for which the suspect has been arrested. For reasons I have stated I do not find Officer Sgroi engaged in a lawful search of the cellphone incidental to the obstruction charge.
[181] A further problem for Officer Sgroi is that he did not keep careful notes of his search such as of the Apps he searched, the extent of the search, the time of the search, its purpose and its duration as stipulated by R. v. Fearon. Officer Sgroi kept no such notes. He did not recall which Apps he searched. He was not certain whether he went through the call logs.
[182] Even if I were to find the search was legitimately a search incidental to the arrest I find Officer Sgroi’s failure to keep a record of the details of the search would be fatal to the search being lawful. The Supreme Court held that keeping detailed notes is a matter of “constitutional imperative” and in that spirit concluded:
The Crown bears the burden of establishing that the search incident to arrest was lawful. In my view, that burden is not met, absent detailed evidence about precisely what was searched, how and why. That sort of evidence was lacking in this case, and the lack of evidence, in turn, impedes meaningful judicial review of the legality of the search.
[R. v. Fearon, at para. 87]
[183] The Crown shoulders the burden of establishing that the search incident to arrest was lawful. I find that burden has not been satisfied. I find the police violated Mr. Mitchell’s rights under s. 8 of the Charter.
[184] A brief word on the extraction of the contents of the cellphone. Officer Wilson admitted the police were not authorized to have the cellphone extracted and that a separate search warrant, which the police never sought would be required to have this done lawfully. The Crown does not rely on the extraction.
Section 10(a) Promptly Giving Reason for Arrest
[185] Section 10(a) of the Charter requires that a person who is arrested or detained be promptly informed of the reason for their arrest or detention. The purpose of s. 10(a) is to ensure those arrested or detained are aware of the gravity of the situation: [R. v. Latimer 1997 405 (SCC), [1997] 1 S.C.R. 217 (S.C.C.)]. A person is not obliged to submit to an arrest without knowing the reason for it and therefore it is essential that the person be informed promptly of the reason: [R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869 (S.C.C.) and R. v. Kelly (1985), 1985 3483 (ON CA), 17 C.C.C. (3d) 419 (Ont. C.A.)].
[186] There is no dispute that the police promptly informed Mr. Mitchell of why he was arrested. He did not challenge the officer’s evidence that he promptly informed him of why he was being arrested on obstruction of justice.
[187] The circumstance with the firearm charge is different. Mr. Mitchell was aware he and others were being investigated in relation to the shooting from about 5:45 a.m. on September 3rd when Officer Sgroi informed him of this as part of the group of occupants in unit 613.
[188] The decision to arrest Mr. Mitchell on firearm charges was made at about 4:30 p.m. on September 3rd. Officer Wilson’s evidence was that it was not until 7:34 p.m. on September 3rd, while Mr. Mitchell was in a holding cell at the station that he advised Mr. Mitchell of his firearm charges. Mr. Mitchell confirmed Officer Wilson’s evidence that he was given his rights to counsel at that time. The officers who were questioned about what the police were doing between 4:30 p.m. and 7:34 p.m. testified that during that period the police were very busy documenting the case, investigating the 7 arrestees and preparing their notes.
[189] Looking at the timeline in relation to s. 10(a) and the firearm charges, Officer Sgroi testified he returned to 12 Division from the scene at about 9:30 a.m. on September 3rd. He testified that during case preparation he made the observation at about 12:35 a.m. that the firearm in the cellphone photos was the same firearm recovered at 25 Martha Eaton Way.
[190] It was some 7 hours after the discovery about the firearm that Mr. Mitchell was informed that he was under arrest on the firearm charges. I accept that with 7 arrestees to deal with that the officers would be rather busy attempting to complete their case preparation tasks. However, I find a 7-hour delay after the discovery about the firearm in the photo is an unreasonable time lapse before they advised Mr. Mitchell about his arrest on firearm charges.
[191] The Crown submits that Mr. Mitchell was already under arrest for obstruction of justice so this did not affect his decision to submit to arrest for the firearm charges. But I considered that Mr. Mitchell was aware early on that the investigation involved a shooting and that he might be a suspect. The reality is he sat arrested for the lesser offence of obstruction and waited for hours in anticipation as to whether he would be arrested on firearm offences. This would have an impact on him in that the lengthy delay left him in limbo about whether his jeopardy would be increased by an arrest on more serious charges.
[192] I find the police violated Mr. Mitchell’s right to be informed promptly of his arrest on the firearm charges.
Section 10(b) Right to Counsel
The Law
[193] There are two components to the right to counsel − the informational component where the police are required to inform the accused of their right and the implementation component where the police are obligated to provide an opportunity to exercise the right.
[194] Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. The purpose of that right has been described by the Supreme Court of Canada as ensuring “that a suspect is able to make a choice whether to speak to the police investigators that is both free and informed”: [R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310 (S.C.C.)]. Section 10(b) gives effect to that right by “ensuring that detainees have an opportunity to be informed of their rights and obligations under the law and to obtain advice on how to exercise those rights and perform those obligations”: [R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429 (S.C.C.)].
[195] The implementation component of the right is engaged once the detainee indicates a desire to exercise the right to counsel. The implementation component involves two aspects:
a) the officer must provide the detainee with a reasonable opportunity to exercise the right to retain counsel without delay except in urgent or dangerous circumstances.
b) refrain from attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel except in urgent or dangerous circumstances.
[R. v. Ross, [1989] 1 SCR 3, 1989 134 (S.C.C.) and R. v. Bartle, 1994 64 (SCC), (1994), 92 CCC (3d) 289, at p. 301, (S.C.C.)]
On the Obstruction Charge
[196] Mr. Mitchell was arrested at about 6:00 a.m. on September 3rd. He was first given the opportunity to speak to counsel on the obstruction charge at 10:45 a.m. on September 3rd. Officer Sanguinetti’s evidence is that when duty counsel called he gave the phone to Mr. Mitchell to speak to duty counsel. There is a discrepancy in the evidence as to whether Mr. Mitchell asked for and spoke to a particular lawyer at Ted Royle’s firm. But I do not think this is of any consequence in the greater scheme of the evidence.
[197] A determination on whether the delay between arrest and facilitation of the right to counsel was unreasonable requires a look at what was occurring at points within that time period.
[198] When he was detained at about 5:45 a.m. he was first informed he had a right to speak to a lawyer. He was again informed of this right when he was arrested at 6:00 a.m. Officer Sgroi testified there were insufficient officers available to transport Mr. Mitchell and the other detainees to make a call to a lawyer. He explained the obstacles to privacy and the dangers involved especially in a firearm investigation with allowing an arrestee to go into a room on their own and use their own cellphone.
[199] I accept Officer Sgroi’s evidence about the human resources problems and the particular concern the police had to control the unit and the occupants when the premises had not yet been searched for a firearm. There were 6 occupants and 7 officers. I understand why officers could not be spared to move Mr. Mitchell to the station immediately after his arrest.
[200] The evidence is that officers did not arrive to transport Mr. Mitchell to the station until about 8:28 a.m. on September 3rd. That is about 2½ hours after he was arrested. Officer Sgroi explained again that the scarcity of officers to transport 7 arrestees placed a burden on the resources and caused a delay in getting the arrestees to the station.
[201] In answer to questions on cross-examination about why the police did not borrow officers from other Divisions, Officer Sgroi indicated they did have assistance from 1 or 2 officers from other Divisions but that was not sufficient to avoid delay.
[202] I accept Officer Sgroi’s explanation for the delay in transporting Mr. Mitchell to the station. Officers were required to keep watch on the occupants of unit 613 and to search the unit. Further, other officers were tasked to control and search unit 2413. I believe the police human resources were stretched and that the delay in transporting Mr. Mitchell was unavoidable in the circumstances.
[203] Moreover, I cannot imagine why the police would just wantonly neglect to transport people sooner if there were not a real obstacle to doing so. It would seem that the more people that remained in unit 613 the more difficult it would be for the police to control the unit and move through their investigation and search the unit.
[204] Mr. Mitchell arrived at the police station at about 7:30 a.m. on September 3rd. It was 2 hours and 15 minutes before he spoke to a lawyer. He was told he would be able to speak a lawyer at the station on more than one occasion at unit 613 and while being transported to the station. He was informed of his rights at the booking desk at about 9:12 a.m. on September 3rd. So there was a further delay on top of the delay I found to be justified.
[205] I acknowledge Officers Sgroi’s and Wilson’s evidence that the officers were busy with case preparation which required a considerable amount of paperwork and computer input for 7 arrestees. However, knowing there had already been hours of delay from the time of arrest I find once at the police station where privacy and access to telephones were not an issue, the police should have spared an officer a brief period from their tasks to ensure Mr. Mitchell got that promised opportunity to speak to a lawyer very soon after arriving at the station.
[206] I find the 2 hours and 15 minutes was an unjustifiable delay and a violation of Mr. Mitchell’s rights under s. 10(b) of the Charter.
On The Firearms Charges
[207] Mr. Mitchell was arrested and informed of his rights on the firearm charges and given the right to counsel at 7:34 p.m. on September 3rd. At 8:30 p.m. on September 3rd after he was arrested on the firearm offences, Mr. Mitchell asked Officer Wilson if he could speak to a Legal Aid lawyer. Mr. Mitchell agrees he spoke to duty counsel at this time. He therefore spoke to a lawyer about 45 minutes after his arrest. I do not find this delay to be unreasonable or a violation of Mr. Mitchell’s rights.
The Level 3 Search
The Law
[208] Level 3 searches are recognized as the most invasive type of searches. The law is clear in Canada that warrantless searches are prima facie unreasonable under s. 8 of the Charter. It is the Crown’s burden on a balance of probabilities to convince the court that reasonable grounds existed, that the strip search was carried out at a police station, and conducted in a reasonable manner: [R. v. Golden, [2001] 3 S.C.R. 670, at paras. 84 and 105, (S.C.C.)].
[209] The common law recognizes the police’s legitimate concern about arrestees hiding weapons or dangerous substances and drugs on their person. There are genuine safety concerns for the arrestee, other inmates and the police if dangerous items are allowed into the prisoner population. However, because a strip search is inherently an intrusive search the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest: [R. v. Golden, at para. 98].
[210] R. v. Golden described the implications for the arrestee of a strip search:
Strip searches are thus inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy. The adjectives used by individuals to describe their experience of being strip searched give some sense of how a strip search, even one that is carried out in a reasonable manner, can affect detainees: “humiliating”, “degrading”, “demeaning”, “upsetting”, and “devastating”.
[R. v. Golden, at para. 90]
[211] The Supreme Court proposes that 2 officers be present in addition to the person searched and that although all clothing are required to be removed the search should be conducted in such a way that the arrestee is never completely undressed and the search should be conducted as quickly as possible: [R. v. Golden, at para. 58].
[212] R. v. Fearon contrasted a strip search with a search through private information in a cellphone and concluded:
In this respect, a cell phone search is completely different from the seizure of bodily samples in Stillman and the strip search in Golden. Such searches are invariably and inherently very great invasions of privacy and are, in addition, a significant affront to human dignity. That cannot be said of cell phone searches incident to arrest: [author’s italics].
[R. v. Fearon, at para. 55]
[213] As discussed earlier, though less invasive than a strip search, because of the serious privacy concerns with cellphones, the court in Fearon, looking at the Crown’s ability to meet its onus, mandated as a “constitutional imperative” that a detailed record by the police of the search of the cellphone be kept in the event of judicial review.
[214] The court in R. v. Golden did not expressly require detailed notes of strip searches be kept. But in reviewing strip search law across jurisdictions the court did raise for consideration whether a proper record was kept of the reasons for and the manner in which the strip search was conducted: [R. v. Golden, at para. 102].
Application of the Law
[215] Mr. Mitchell’s account of what happened during the strip search diverges substantially from the evidence of Officers Sanguinetti and Fong who conducted the search. Neither officer had a specific memory of the search. Each of them had done hundreds of strip searches over the nearly 2 years since they searched Mr. Mitchell. Their notes of the search were no help with their memories. Each of their notes about the search was less than cryptic. As I mentioned above, Officer Sanguinetti’s notes state “9:21 in 9:26 out” and Officer Fong’s notes state “l 3 search male.”
[216] The officers could only say what their normal practice would be. They were aware that 12 Division was involved in a firearm investigation and that Mr. Mitchell might be a suspect and were also aware Mr. Mitchell was arrested in possession of marijuana. The reason for the strip search was to prevent the possibility of a weapon or harmful substance being taken into the inmate population or endangering the police or arrestee. The officers said their normal practice would be for the arrestee’s clothes be removed from top to bottom, one piece of clothing at a time. Each piece of clothing would be returned to the arrestee before another piece is removed.
[217] Mr. Mitchell agrees the articles of clothing were removed one at a time from top to bottom. However, his evidence is that the police did not return each piece of clothing as they were removed. He testified he was asked to remove his underwear, bend down and spread his buttocks cheeks. Mr. Mitchell alleges he was fully naked for about 30 seconds to a minute.
[218] Mr. Mitchell is pictured on surveillance at the booking desk after the strip search wearing an orange jumpsuit. Mr. Mitchell explained that the police told him they were seizing his clothes for forensics. He claims the police did not give him back his clothing except his underwear after he was searched. He was given back his underwear and the officers handed him the orange jumpsuit to put on. The 30 seconds to a minute elapsed just before he put on the orange jumpsuit.
[219] The officers testified that although they did not recall the details of the search they say they would have recalled it if they conducted the search the way Mr. Mitchell described. The officers denied Mr. Mitchell was naked for any period of time and denied asking him to spread his buttocks cheeks. They admitted they eventually seized the clothing for forensics but denied they kept all of his clothing without allowing him to put them back on before he put the orange jumpsuit on.
[220] Officer Sanguinetti’s notes state that after the search he seized Mr. Mitchell’s clothes. Defence counsel put the suggestion to the officer that the note could be interpreted, as Mr. Mitchell contends, that he did not give Mr. Mitchell back his clothes to put on again and take off again before he was given the orange jumpsuit. The officer agreed his note could be understood to have that meaning.
[221] The decision on whether Mr. Mitchell’s s. 8 rights were violated by the strip search revolves on credibility findings as between the officers and Mr. Mitchell. It is the Crown’s burden on a balance of probabilities to prove the strip search was conducted in a reasonable manner. On this R. v. Golden observes:
Because strip searches are of such an invasive character, they must be considered prima facie unreasonable. It is up to the state to rebut this presumption because it is in the best position to know and explain why the search took place, and why it was conducted in the manner and circumstances that it did. This onus rests upon the Crown in any case involving a strip search, as defined in these reasons.
[R. v. Golden, at para. 105]
[222] The more intrusive the search and the higher the degree of infringement of personal privacy, the higher the degree of justification that is required: [R. v. Golden, at para. 5].
[223] I do not find the Crown met its burden to prove the search was conducted in a reasonable manner. They did not keep a record of the process of the search. They had done hundreds of strip searches over the nearly 2 years since they searched Mr. Mitchell. I find that Officer Sanguinetti’s note about seizing the clothes after the search tends to align with Mr. Mitchell’s evidence that the police did not return his clothes one by one so he would not be left fully naked before he put on the orange jumpsuit.
[224] Even 30 seconds of time standing before strangers naked or with only one’s underwear on combined with being subjected to a check of one’s buttocks is without question very demoralizing and humiliating.
[225] What the officers described as their usual practice would have been a reasonable search in the circumstances. There was no necessity for Mr. Mitchell to remain totally naked for any period of time.
[226] As I mentioned earlier with respect to the search of the cellphones, credibility findings are more often than not very difficult to make. The decision on this issue is no exception. As terrible as I find what Mr. Mitchell described about the strip search is I find he testified credibly about what happened to him. He did not exaggerate the length of time he remained naked. His evidence accorded with the officers’ on how the clothing was removed. The officers did not take the opportunity to document what happened through keeping notes and they had no specific memory from which to effectively challenge Mr. Mitchell’s testimony. I find they took a rather routine approach to addressing what happened with the search.
[227] When conducting a search as intrusive as a strip search I believe, as R. v. Fearon held in relation to less invasive cellphone searches, that the police have an obligation to document the manner of the search. This allows the police for their part to justify why and how they conducted the search and permits the court on review to examine the evidence to decide reasonableness.
[228] All in all I find the police gave me no reason to doubt Mr. Mitchell’s evidence. I find looking at the evidence on this issue in its totality that the police violated Mr. Mitchell’s rights under s. 8 by conducting an unreasonable level 3 search.
The Law on the Report to a Justice
[229] As discussed above, the police are required to file a Report to Justice in respect of the seizure of property under a warrant or without a warrant pursuant to s. 489.1 of the Criminal Code. The property seized in this case is the physical cellphone and the contents of the cellphone which the police extracted without a warrant.
[230] The purpose of this procedure is to allow judicial supervision over the property through requiring documentation of what is seized. The police are required to return the property to the possession of lawfully entitled person as soon as practicable. The justice supervises the detention and return of property seized.
[231] The police filed a Report to Justice for the physical cellphone but did not file a Report to Justice for the extracted contents of the cellphone. The defence takes the position that this is a violation of s. 8 of the Charter on the view that the failure to file the second Report denied Mr. Mitchell judicial scrutiny over the state seizure of his personal information. The defence relied on the Court of Appeal in R. v. Garcia-Machado.
[232] I agree with the Crown’s position on the interpretation of the implications of R. v. Garcia-Machado in relation to the requirements under s. 489.1. I find unlike the defence’s position that the Court of Appeal in that case did not hold that the failure to file a Report to Justice would result in an automatic finding of a violation of s. 8.
[233] That case involved the failure for 3 months of the police to file a Report in respect of blood and hospital records the police seized: [R. v. Garcia-Machado, 2015 ONCA 569 (Ont. C.A.)]. While the types of items at issue in R. v. Garcia-Machado are distinct from the items under consideration in the case before me, both cases involve the seizure of very private and personal information.
[234] I do not agree with the Crown’s position that filing a Report to Justice for the physical cellphone was sufficient to cover the seizure of its extracted contents because, as the Crown argues, the contents of the hard drive remained inside the cellphone. The extraction process involves copying the total contents of the hard drive. The hard drive of Mr. Mitchell’s cellphone contained private and intimate information from his life which clearly connect to Mr. Mitchell.
[235] I do not accept the Crown’s analogy with scene of crime photos. Personal information stored on a hard drive of a computer or cellphone is in general very different from the contents of scene of crime photos in terms of the privacy element. Photos of contraband, the locations of crimes, firearms and ammunition, clothing and fingerprints do not normally have the deeply personal quality that the contents of a cellphone have.
[236] I find Mr. Mitchell was denied the right to have the judicial system scrutinize and supervise the police’s seizure and retention of the very personal and private contents of his cellphone and as such his rights under s. 8 of the Charter were violated.
Conclusion on Charter Violations
[237] I have found the police violated several of Mr. Mitchell’s Charter rights the most critical of which was the s. 8 breach by the police searching his cellphone. I also found further s. 8 breaches based on the manner the police conducted the level 3 search and the police’s failure to file a Report to Justice for the extracted contents of the cellphone.
[238] I further found breaches under ss. 10(a) and 10(b) of the Charter for failure to promptly inform Mr. Mitchell of the reason for his arrest on the firearm charges and for failure to facilitate rights to counsel in relation to the obstruction charge within a reasonable time. I need not decide the claim to a breach under s. 11(e) of the Charter for delay in presenting Mr. Mitchell for a bail hearing.
[239] I conclude that based on the multiple Charter violations that the photos of the firearm taken by Officer Sgroi from Mr. Mitchell’s phone are excluded from evidence at trial.
SECTION 24(2) OF THE CHARTER - EXCLUSION OF EVIDENCE
The Legal Framework
[240] Section 24(2) of the Charter allows the court to exclude evidence obtained in breach of Charter rights if the admission of the evidence would bring the administration of justice into disrepute. This requires a balancing of the effect that admitting the evidence would have on society’s confidence in the justice system.
[241] The balancing exercise involves considering three inquiries set out in R. v. Grant: (a) the seriousness of the Charter-infringing state conduct; (b) the impact of the breach on Charter-protected interests of the accused; and (c) society’s interest in the adjudication of the case on its merits.
[242] The seriousness of the breach falls along a spectrum where at on one end are violations that are inadvertent or minor in nature and on the other end, violations that demonstrate a reckless and deliberate disregard of Charter rights: [R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223 at paras. 72 and 74, (S.C.C.)].
Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence.
[R. v. Grant, at para. 75]
The First Inquiry
The Section 8 Violations
[243] The search of the cellphone I find the most egregious violation because the unlawful search led directly to the evidence that ultimately led to Mr. Mitchell’s arrest on the firearm charges. Aggravating that violation is the fact that Officer Sgroi was not honest with the court about the reason he searched the cellphone and how he proceeded through the contents of the cellphone. He contrived what I found to be an implausible story about his search.
[244] Although Officer Sgroi stated that his intention was to search the cellphone for identification information on photos, which intention I rejected, he actually went much further than that. He delved into the most personal and intimate content of the cellphone. He searched photo folders, Apps, emails and possibly call-logs, without the consent of Mr. Mitchell and against his open protestations.
[245] I find this unlawful search of the cellphone a sufficiently egregious basis on its own to exclude the photos from evidence.
[246] The level 3 search also presented with an egregious attack on Mr. Mitchell’s s. 8 rights and is also on the serious end of the spectrum. Even searches conducted reasonably are humiliating and embarrassing. I accepted Mr. Mitchell’s evidence that he was naked for 30 seconds to a minute and was made to bend down without his underwear and spread his buttocks cheeks.
[247] I find the officers seemed rather cavalier and routine about such an invasive affront to a person’s dignity. They did not think it important enough to take meaningful notes of the search. They did not think it important enough to recall anything particular about the search.
[248] The failure to file a Report to Justice on its own I would not place on the serious end of the spectrum. This could have been the result of inadvertence or a technical misunderstanding. However, when considered in combination with the unlawful search of the cellphone which itself resulted in the exposure to strangers of private information and intimate personal photos, the failure to file the Report has added meaning. The exposure of the private fruits of Officer Sgroi’s search is aggravated by the fact the police had in their custody, outside the supervision of the court, not just some photos, but the entire contents of the hard drive of the cellphone.
[249] Overall, I find the police officers’ violations on the cellphone search and strip search to be willful, flagrant and deliberate. Those infractions were not minor or technical errors or inadvertent. Regarding the failure to file the Report to Justice although I did not accept the Crown’s argument comparing the extraction to scene of crime photos it is arguable the police might have thought it sufficient to file a Report only on the physical cellphone. I would not classify that error as deliberate or on its own flagrant.
[250] I find the court on the first inquiry should not condone the police conduct. The court should not be seen to condone the deliberate and reckless disregard for Mr. Mitchell’s dignity and privacy.
The Section 10(a) and 10(b) Violations
[251] I place the violation of s. 10(a) of the Charter, the failure to promptly inform Mr. Mitchell of his arrest for the firearm charges on the moderate end of the spectrum.
[252] Mr. Mitchell was not under arrest with no information at all about why he was being detained. He knew he was under arrest for the obstruction charge. This not to say that the police are excused for not promptly telling Mr. Mitchell he was going to also be under arrest on firearm charges when the police made the discovery about the firearm several hours earlier. I did find he was reasonably allowed to speak to a lawyer about 45 minutes after the firearm arrest.
[253] For the purpose of placing this violation on the seriousness spectrum I distinguish Mr. Mitchell’s case from those where arrestees are left in abeyance for much longer periods of time about their jeopardy and not given the opportunity to contact a lawyer for a much longer time. But it remains that Mr. Mitchell could have been informed of his increased jeopardy far earlier.
[254] On the s. 10(b) breach, I find the nearly 2-hour wait at the station before Mr. Mitchell was given the opportunity to speak to a Legal Aid lawyer was a violation of his rights. While the delay was unacceptable, it was not the most egregious of delays. On balance, I also find this to be a moderate violation on the seriousness spectrum. I find nonetheless that the court should distance itself from police practices that carelessly neglect to give an accused the opportunity to speak to a lawyer when it was possible to do so at the station particularly after a series of promises to do so.
The Second Inquiry
The Section 8 Violations
[255] The second inquiry looks at the impact of breaches on Charter-protected interests of the accused.
[256] It is not difficult to conclude that the violations the police committed in contravention of s. 8 would have a substantial impact on Mr. Mitchell’s right to be secure from unlawful privacy invasions. The police without reasonable justification took a foray through the private intimate information stored on his cellphone and allowed the unwarranted exposure of Mr. Mitchell’s body during the strip search. This conduct is on the extreme end of the spectrum of personal impact.
[257] On cellphone searches, I repeat the passage cited earlier:
I would add cell phones — may have immense storage capacity, may generate information about intimate details of the user’s interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinks that it has been destroyed, and may provide access to information that is in no meaningful sense “at” the location of the search.
[R. v. Fearon, at para. 51]
[258] On how even more invasive a strip search is, as re-quoted from above, the court observed:
In this respect, a cell phone search is completely different from the seizure of bodily samples in Stillman and the strip search in Golden. Such searches are invariably and inherently very great invasions of privacy and are, in addition, a significant affront to human dignity. That cannot be said of cell phone searches incident to arrest.
[R. v. Fearon, at para. 55]
[259] The impact on Mr. Mitchell of the police conduct as he remained helpless in the apartment in the presence of several police officers while Officer Sgroi freely browsed through his cellphone commenting on what he observed can only be amply described by Mr. Mitchell. Suffice it to say however that the impact was not minimal. Even more is the case with the impact on Mr. Mitchell of being made to be naked before 2 strangers with authority over him and being made to bend down and expose his buttocks.
[260] The court should not be seen to countenance the unlawful and deliberate invasions in the most personal spheres of Mr. Mitchell’s being.
The Sections 10(a) and 10(b) Violations
[261] I find the violations under sections 10(a) and 10(b) of the Charter-protected interest to be informed promptly of the arrest for the firearm offences and to be allowed an opportunity within a reasonable time to contact a lawyer on the obstruction charge should not be underestimated by the court.
[262] Being under the control of state agents in a home where you are not allowed to leave; being held in a cell in a police station in limbo about your jeopardy for many hours; and not being allowed to speak to a lawyer for many hours despite many requests and many promises − is not an enviable position to be in. I found 7 hours before learning of his arrest on the firearm charges and 2 hours of delay before being allowed to speak to a lawyer on the obstruction charge to be unreasonable.
[263] Even when an arrestee is suspected of a serious crime the police must respect their right to promptly know their jeopardy and their right to get assistance from a lawyer as soon as reasonably possible. These are rights guaranteed by the Charter. The court should not be seen to condone this type of practice.
The Third Inquiry
[264] The third inquiry requires the court to look at the seriousness of the offence.
[265] The Supreme Court of Canada in R. v. Harrison asks the court to balance the implications of excluding evidence of an offence against the effect on the administration of justice if the prosecution of a serious crime is not pursued because evidence that could provide conclusive proof is not admitted.
[266] Mr. Mitchell is charged with firearm offences. These are no doubt serious charges. However, he was not charged with the most serious of offences that emerged from the investigation. He was not arrested for being involved with the shooting although he was present at the scene when it occurred.
[267] During the unlawful search Officer Sgroi found a photo on his cellphone of him holding a firearm that turned out to be the firearm involved in the shooting. This is not a case where Mr. Mitchell was found in hot possession of the firearm at or near the time of the shooting. The photos on his cellphone of the firearm were taken months before the crime the police were investigating occurred. These facts must be considered when looking at the seriousness of the offence.
[268] Nonetheless the photographic evidence cannot be regarded as operating unfairly in the court’s search for the truth at trial: [R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 81 and 82, (S.C.C.)]. In the photo of Mr. Mitchell holding the firearm on his lap and he is wearing a belt similar to what he wore when he was arrested. The serial number on the firearm matches that on the seized firearm. There is a straight link between the firearm used in the shooting and Mr. Mitchell.
[269] Firearms spawn danger. They have posed serious threats to the lives of people in urban centres like Toronto and have undermined the vitality and safety of marginalized communities. The fact that Mr. Mitchell would boldly have a photograph taken of himself with the firearm proudly displayed on his lap cannot be ignored. This is truly chilling. My decision is certainly not a condonation of that brazen and arrogant display.
[270] I am required to balance against the seriousness of the crime the police officers’ very unacceptable conduct especially the police dealings in relation to the s. 8 breaches.
[271] On the cellphone search I look at the fact that the law has granted considerable leeway for police searches of cellphones as a source of information to assist with investigations of certain types of crimes. There need not be reasonable and probable grounds to do the search. However, there are limits that must be honoured. A search must be truly incidental to an arrest and be shown to be linked to a valid law enforcement objective.
[272] Officer Sgroi exceeded the latitude offered by Fearon. He did not operate within the scope of the common law rules. And the officer made up what I considered to be a specious objective for the search and was not honest about the course of his search and failed to record the details of the search. I could not discern a legitimate law enforcement objective. Perhaps, had Officer Sgroi been more conscientious about following the requirements of the law my conclusion about the admission of the fruits of the search might have been different.
[273] Regarding the strip search, the manner of that search greatly augmented the impact of the s. 8 violations for the obvious reason that the police moved from an unlawful invasion into personal information into an unjustified invasion of Mr. Mitchell’s physical being. Added to this is the fact that the full contents of the information in his cellphone have been in police custody in the hands of strangers outside the scrutiny and supervision of the courts.
[274] The section 10 Charter violations while not as serious are serious enough to add weight to the balance in favour of exclusion of the photographs.
[275] The court is required to perform a fact-based balancing of the three lines of inquiry. The exercise is not simply a quantitative evaluation of whether the majority of the factors favour exclusion. The question to be considered is what effect on the long-term repute of the administration of justice would result from admitting the photographs: [R. v. Harrison, at para. 36].
[276] The offences charged are without question serious and the seized evidence central to the Crown’s success at trial. The prosecution is denied the chance to try serious cases when highly probative evidence such as the photographs in this case is excluded. I do not underestimate that consideration.
[277] However, when I weigh the three inquiries and consider with the depth and extent of the various Charter violations I can only conclude that the long-term interest of the administration of justice would not be served by admitting the evidence in this case.
[278] In this electronic age most people have electronic devices where they store information on multifaceted areas of their lives and lifestyles – photos, personal communications, banking information, their household and personal interests and hobbies. I cannot imagine that public opinion would countenance the court condoning the conduct of Officer Sgroi. I think members of the public can well imagine how they would feel if their cellphone were seized and a stranger, a law enforcement officer, took the liberty without their consent to search the personal information in their cellphones and have access to and retain its entire contents indefinitely without scrutiny.
[279] I think it is also self-evident how members of the public would regard the police unnecessarily requiring a person to remove their clothes, expose their buttocks and be naked in front of them where the person is powerless as to what the police are requiring of them. It is against the rules for an accused to be totally naked during a search.
[280] I find the balance favours the exclusion of the photos taken by Officer Sgroi.
DISPOSITION
[281] I allow the application to exclude the photos of O’Shane Mitchell with the firearm pursuant to s. 24(2) of the Charter.
B.A. Allen J.
Released: September 9, 2019
Released: September 9, 2019