Court File and Parties

COURT FILE NO.: CJ 9373

DATE: 2019/09/26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. L.R.

BEFORE: Justice D.A. Broad

COUNSEL: Jennifer Caskie and Katherine Enns, Counsel for the Respondent/Crown H. Mattson, Counsel for the Applicant/Accused

HEARD: September 23, 2019

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA

ENDORSEMENT

(Orally)

Background

[1] The applicant L.R. was arrested on August 14, 2017 charged with uttering threats, assault, sexual assault, kidnapping, forcible confinement, and human trafficking in respect of a 15- year-old complainant, G.C..

[2] Coincident with her arrest the applicant’s cell phone was seized.

[3] On April 12, 2018 judicial authorization was granted to allow the Waterloo Regional Police Service (“WRPS”) to search the applicant’s cell phone and on the same day an Assistance Order was made compelling Cellebrite Canada Mobile Data Solutions Ltd. (“Cellebrite’) to provide technical assistance to WRPS in executing the warrant.

[4] An employee of Cellebrite, Dan Embury, determined the lock code on the applicant’s cell phone on May 4, 2018, using a custom solution developed by Cellebrite. Following this, Mr. Embury performed a complete forensic extraction of the cell phone.

[5] On May 8, 2018, Det./Cst. Oliver Ammendolia took the complete extraction and performed a “sub-extraction” pursuant to the parameters of the warrant. He extracted internet history, electronic messaging history (including all instant messaging applications), phone call history, contacts, photos and videos between May 1, 2017 to August 14, 2017 and created a report of approximately 4,200 pages displaying the extracted data.

[6] The extraction report contained child pornography. The Crown disclosed a vetted copy of the extraction report on or about August 15, 2018. On the day of the judicial pretrial on August 27, 2018, the parties obtained an Order of Justice Goodman pursuant to s. 490(15) of the Criminal Code to disclose an unredacted copy of the extraction report to all counsel. The unredacted extraction report was disclosed to counsel for the applicant on August 29, 2018.

[7] At the judicial pretrial, counsel for the applicant Mr. Mattson sought the return of the applicant’s cell phone. On February 7, 2019, Mr. Mattson wrote to the Crown requesting the return of the applicant’s cell phone on consent.

[8] On February 11, 2019, the Crown replied that it would not return the cell phone, given its status as an offence-related property subject to forfeiture, and suggested that Mr. Mattson speak with police to view the phone’s contents or that the defence retain an expert to analyse it.

[9] Mr. Mattson and Crown counsel continued with an exchange of correspondence respecting the parameters for possible production of the cell phone to the applicant and her counsel.

[10] Included in the correspondence was a letter from the Crown advising that it had learned that new forensic software was available and a new extraction would be performed. On May 13, 2019, Det./Cst. Ammendolia completed a second “sub-extraction” which was disclosed to counsel for the applicant shortly thereafter pursuant to Justice Goodman’s Order.

[11] In the course of the exchange of correspondence the Crown provided Mr. Mattson on July 4, 2019 with a proposed undertaking setting out conditions for access to the cell phone. The undertaking provided, among other things, that no one except counsel and the police will be permitted to handle the exhibit, counsel’s handling of the exhibit will be directly monitored by a police officer at all times, counsel’s handling of the exhibit will be video recorded and counsel will not attempt to alter or delete any data, nor copy, download, distribute or transmit any of the data in any way, and will not attempt to view any data that predates May 1, 2017. The undertaking also contained an acknowledgement that, if counsel for the applicant accessed any of the data pre-May 1, 2017 and that data should reveal evidence in respect of an offence, police may seek a judicial authorization to search the entire contents of the cell phone.

[12] By letter dated August 6, 2019, Mr. Mattson advised that he was unable to agree to the entire draft undertaking but was prepared to undertake with respect to certain of the items set forth. He was not prepared to agree to the stipulations that his access to the exhibit will be subject to a two hour time limit, that his handling of the exhibit would be directly monitored by a police officer, that his handling of the exhibit will be video recorded, nor that if any data pre-May 1, 2017 were accessed the police may seek judicial authorization to search the entire contents of the exhibit if the data reveals evidence in respect of an offence.

[13] The Crown responded on August 9, 2019 to advise that, unless Mr. Mattson agrees to all of the terms on the undertaking, subject to the two hour time limit being negotiable, the Crown would not consent to his examination of the phone.

[14] Following service of the application, the Crown wrote to counsel for the applicant advising that it has satisfied its disclosure obligation, that a forensic copy of the extraction of the entire phone could be provided to him pursuant to s. 490(15) of the Criminal Code, and that it was the Crown’s position that access to the cell phone is governed by s. 605 of the Criminal Code and Rule 21 of the Criminal Proceedings Rules for the Superior Court of Justice.

Position of the Applicant

[15] Mr. Mattson submits that he and the applicant should be permitted to manually manipulate the cell phone in order to satisfy themselves that no material on the cell phone was missed by Cellebrite in carrying out its analysis using its proprietary forensic tool.

[16] The applicant points to para. 4 of Mr. Embury’s Witness Statement, included in the Crown’s material, stating that:

“using a custom solution developed by Cellebrite, the lock code was determined. Following this, a complete file system extraction of the device was performed… [utilizing] the latest version of UFED Physical Analyser.”

[17] Although counsel for the applicant acknowledged that manual manipulation will change the data on the cell phone to some degree, he argued that no harm would result to the Crown’s position as the Crown has extracted a forensic copy of the phone. He submits that the applicant should be entitled to satisfy herself by manual manipulation of the phone that Cellebrite’s forensic analysis was complete and that there is no particular hurdle that the defence should be required to get over in order to exercise that right.

Position of the Crown

[18] The Crown takes the position that it has complied with its obligations of disclosure under the Stinchcombe regime and s. 7 of the Charter by providing the applicant with a digital copy of the cell phone extraction pursuant to the Order of Goodman, J. made under s. 490(15) of the Criminal Code. In addition, it offered a forensic copy of the cell phone extraction which was not pursued by the applicant. The Crown agreed to permit physical examination by the applicant’s counsel pursuant to certain stringent conditions, which were not agreed to by the applicant. The Crown is not prepared to consent to the applicant’s request to handle the cell phone and takes the position that the proper avenue for relief lies in s. 605 of the Criminal Code.

Analysis

[19] The Criminal Code makes specific provision for the release to an accused of an exhibit for the purpose of a test or examination by means of s. 605.

[20] The applicant does not expressly rely upon s. 605, but rather asserts a right to access the cell phone in order to permit an examination of it independent of s. 605, pursuant to the Stinchcombe regime.

[21] Subsection 605(1) provides as follows:

A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction may, on summary application on behalf of the accused or the prosecutor, after three days’ notice to the accused or prosecutor, as the case may be, order the release of any exhibit for the purpose of a scientific or other test or examination, subject to such terms as appear to be necessary or desirable to ensure the safeguarding of the exhibit and its preservation for use at the trial.

[22] Rule 21 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) sets forth a detailed process governing applications on behalf of an accused or the prosecutor for release of an exhibit for the purpose of a scientific or other test or examination under s. 605(1) of the Code.

[23] Pursuant to sub-rules 21.04(1)(a) and 21.04(2) the application must be accompanied by an affidavit, by or on behalf of the applicant, setting forth various matters including, inter alia, a description of the relevance of the exhibit, the proposed examination or testing to the issues raised at trial, and statement of the manner in which steps the applicant will endeavor to ensure the safeguarding of the exhibit and its preservation for use at trial.

[24] Pursuant to sub-rule 21.04(b) the notice of application must be accompanied by an affidavit of the person or an authorized representative of the agency whom it is proposed shall conduct the test or examination deposing to the matters described in sub-rule (3). These include, inter alia, a detailed description of the nature, purpose, extent and duration of the testing or examination proposed including, the scientific techniques, procedures and equipment to be used in a description of the steps and procedures to be taken to ensure the safeguarding of the exhibit and its preservation, in an unaltered state, for use at the trial.

[25] It has been held that the term “exhibit” should be read broadly such that s. 605(1) applies to permit the release of items and objects not strictly speaking before a court in physical form in circumstances where the evidence of the results of testing or examination if the item is or will be before the court (see R. v. Oland, 2015 NBQB 242 (N.B. Q.B.) at paras. 16-17).

[26] S. 605(1) does not expressly stipulate that the “scientific or other test or examination” that is sought of a physical item must be carried out by a third party expert. However, Rule 21.04(3) requires that the capacity of the person or authorized representative of the agency whom it is proposed shall conduct the test or examination be set out in an affidavit, together with a detailed description of the testing or examination proposed.

[27] The applicant has not cited any authority for the proposition that an accused has a right of access to a physical or digital exhibit for the purpose of carrying out an examination of it, independent of the right afforded by s. 605. Moreover, if such an independent right exists, the applicant has not provided any authority addressing the test to be applied by the court in determining whether to grant such access.

[28] The principles which should guide the court on an application under s. 605 (formerly 533) of the Code were usefully reviewed by Saunders, J. in the case of R. v. Shrubsall, 2000 CanLII 28292 (NS SC), 186 N.S.R. (2d) 70 (N.S.S.C.) at paras. 7-9 as follows:

Let me begin by saying that there is a burden of persuasion upon the accused to show an air of reality to the basis of his or her application. It is not something to be pulled from the air or imagined or assessed in a vacuum. On the other hand simple skepticism on the part of the judge as to the benefits to be gained by the testing would not be enough to defeat the motion.

Let me quote from two other cases to illustrate how other judges have described what is required. In the case of R. v. Rhab (1985), 1985 CanLII 3554 (ON SC), 21 C.C.C. (3d) 97 (Ont. H.C.), Osborne, J. (as he then was), now Associate Chief Justice of Ontario wrote:

Section 533 is discretionary. It seems to me that if there is an air of reality to the production and examination sought and if the production and examination sought have any meaningful capacity to advance any available defence the examination sought should be permitted. (at p.99)

And further:

My skepticism as to the benefit that will actually be derived from the examination sought is real, nevertheless I cannot say that the exercise involved is necessarily going to be a futile one. (at p. 99)

In R. v. Eagles (1989), 1989 CanLII 205 (NS CA), 47 C.C.C. (3d) 129 (N.S. C.A.), Justice Macdonald cited Justice Osborne's views in Rhab, supra and went on to explain how he would express the test:

In my opinion such comments (the comments just cited) are apt to be a request here by the defence for production. In my view such request must be reasonable in the sense that it must be founded on something more than mere speculation. (at p. 136)

[29] In my view it is not necessary, in the context of the present case, to determine whether there exists a right of an accused to access to a physical or digital exhibit in the possession of the police for the purpose of carrying out an examination of it independent of s. 605.

[30] For the purposes of the case at bar it is sufficient to observe that, if such an independent right exists, it should not entail a more relaxed test for its operation than the applicable test under s. 605 as described in Shrubsall. The purpose of s. 605, read in conjunction with Rule 21, would be defeated if an applicant could simply advance a stand-alone application for access to a physical or digital exhibit for examination by the applicant or her counsel, without showing an air of reality to the production and examination sought, or, stated another way, that the proposed examination is reasonable as being founded on something more than mere speculation.

[31] The application is not supported by any affidavit or other evidence. In particular, the applicant has not provided any evidence of any reasonable ground to believe that the forensic extractions performed by the WRPS, or on its behalf, were deficient or produced incomplete results. No affidavit from an expert was provided to the effect that the necessary tools to carry out an effective review of the forensic extraction or copy of the digital contents of the cell phone are unavailable. I do not read the witness statement of Mr. Embury, read in conjunction with the affidavit of Sgt. Silva, as confirming that such tools would be unavailable to an expert who might be retained by the defence. The “custom solution developed by Cellebrite” referred to in Mr. Embury’s statement appears to refer only to the tool used to determine the lock code and not to the tools used by Cellebrite to carry out its extraction, nor the tools utilized by WRPS to carry out the two “sub-extractions.” The applicant did not seek to cross-examine Sgt. Silva on his affidavit with respect to these issues.

[32] The applicant has not, in my view, advanced any basis beyond mere speculation that the forensic extractions of the cell phone carried out by WRPS, or earlier by Cellebrite, produced incomplete or inaccurate results and that the existence of additional data may be disclosed by a manual manipulation of the cell phone by Mr. Mattson in consultation with the applicant.

[33] I do not find s. 490(15) to be of assistance to the applicant. S. 490 sets forth a comprehensive scheme governing the procedure when seized items are brought before a justice or a report is made and further detention of the items is requested. Sub-section (15) provides that where anything is detained pursuant to subsections (1) to (3.1) a judge may, on summary application on behalf of the person who has an interest in what is detained, order that the person by or on whose behalf the application is made be permitted to examine anything so detained. This provision has no application as the cell phone has not been ordered detained under ss. 490(1) to (3.1).

Disposition

[34] On the basis of the foregoing, the application is dismissed.

D.A. Broad J.

Date: September 26, 2019