COURT FILE NO.: CJ 9373
DATE: 2019/10/25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. L.R.
BEFORE: Justice D.A. Broad
COUNSEL: Alyssa Bain and Katherine Enns, Counsel for the Respondent/Crown
Harald Mattson, Counsel for the Applicant/Accused
HEARD: October 17, 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PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA
ruling re application for exclusion of evidence derived from search of cell phone purusant to sections 8 and 24(2) of theCHARTER OF RIGHTS AND FREEDOMS
ruling re application for exclusion of evidence derived from production orders pursuant to s. 24(2) of the charter
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 (the “search warrant”) was granted to allow the Waterloo Regional Police Service (the “police”) to search the applicant’s cell phone. The search warrant was issued pursuant to an Information to Obtain sworn April 11, 2018 (the “ITO”).
[4] Counsel for the applicant filed an application under s. 8 and 24(2) of the Charter seeking exclusion of the results of the search of the applicant’s cell phone from evidence.
[5] Counsel for the applicant subsequently brought an application for leave to cross-examine the affiant and sub-affiant of the ITO (the “Garofoli Application”).
[6] During submissions the applicant and the Crown resolved the Garofoli application on the basis that the applicant be given leave to cross-examine Detective Constable Merrigan, the affiant on the ITO, restricted to the content of para. 32 of the ITO, and the balance of the application was withdrawn by the applicant.
[7] The applicant also brought an application for a stay of proceedings pursuant to section 24(1) of the Charter in respect of an alleged broach of section 7 of the Charter by the police and the Crown. The applicant alleged that the police failed to make full and frank disclosure in the ITO and that the Crown and police made delayed and misleading disclosure to her. In the alternative to a stay the applicant sought an order excluding any evidence derived from the search of her cell phone pursuant to section 24(1) of the Charter. That application was argued on October 16, 2019. By a Ruling released on October 25, 2019 and reported at 2019 ONSC 6082 I dismissed the application for a stay and for exclusion of evidence from the cell phone search pursuant to section 24(1) of the Charter.
Position of the Applicant
[8] The ITO alleged that the applicant committed the offences between July 30 and August 6, 2017, both dates inclusive. The applicant notes that the ITO sought authorization to search her cell phone:
(a) for four specific items of data namely (i) Internet history;(ii) electronic messaging history; (iii) phone call history and contact lists; and (iv) pictures/videos;
(b) within a specific date range from May 1, 2017 to August 14, 2017, the latter date being the date that the applicant was arrested and her cell phone seized.
[9] The applicant submits that the date range set forth in the ITO from May 1 to August 14, 2017 was overly broad. Moreover, she submits that the police failed to make full and frank disclosure of certain facts which had the effect or potential of misleading the issuing justice into accepting that a search of the cell phone within the date range proposed would afford evidence with respect to the commission of the offences. She argues that if full and frank disclosure were made in the ITO respecting two aspects of the evidence, the search warrant for the date range proposed would not have issued.
[10] The applicant argues that the police sought the date range for the cell phone search going back to May 1, 2017 for only two purposes:
(a) to obtain the identity of a “yet to be identified” suspect using the name “Tizzy” so that police could arrest him; and
(b) to obtain evidence of “pre-planning” of the offences allegedly perpetrated by the applicant and others against the complainant G.C.
[11] The two areas of evidence in respect of which the applicant submits the police failed to make full and frank disclosure are as follows:
First:
The affiant of the ITO represented five times throughout the ITO that “Tizzy has not been identified” or that “Tizzy” is “yet to be identified,” whereas subsequent disclosure by police confirmed that at the time of the filing of the ITO the police were in possession of information from two “confidential sources” (sources known to the police whose reliability could be assessed) identifying “Tizzy” by name and suggesting that he was deceased.
The circumstances surrounding the misleading disclosure by police relating to “Tizzy” were detailed in my Ruling on the applicant’s application for a stay of proceedings, referred to above. It is not necessary to repeat those particulars for present purposes.
Second:
The affiant of the ITO misrepresented the substance of the information obtained from a co-accused H.M. who was interviewed following her arrest on April 5, 2018 to incorrectly create the impression that there was a connection between the applicant and G.C. in May or June of 2017 when in actuality there was no such connection until late July, 2017.
In the summary of the interview of H.M. set forth at paragraph 82 of the ITO, H.M. was reported at subparagraphs (e) and (f) to have stated that “it all started in April 2017” when she began working as an escort for a girl named “Kiki.” At subparagraph (g) the ITO stated that H. M. reported that “this is also when she first met [G.C.] and that something happened with G.C. taking money that she shouldn’t have.” The ITO went on to report at subparagraphs (h) and (i) that H.M. stated that she was giving a percentage of her money to “Kiki” and also started to date a friend of “Kiki’s” she knew as “Ghost,” that she gave all her money to ”Kiki” and “Ghost” and “that is when” she decided she did not want to do it anymore. At subparagraph (j) H.M. was reported to have stated that she left with the applicant and went to “D” at the Chandler building.
The applicant submits that, contrary to the summary of the interview of H.M. laid out in the ITO, H.M. actually told the police the following:
she knew G.C. from before while working with “Kiki;”
G.C. probably started working with “Kiki” in May or April;
the applicant told H.M. that they found out that G.C. had stolen “a bunch of money” from D on his birthday;
in July she started to work with the applicant.
The applicant says that the phrasing utilized in the ITO that H.M. reported that “something happened with G.C. taking money,” made it seem as if the two events, namely H.M. working with G.C. for “Kiki” and G.C. taking money from “D” were close in time, specifically around April 2017. This is contrary to what H.M. actually reported to police, namely that G.C. allegedly stole money from “D” on his birthday, which was in July, 2017.
At paragraph 32 of the ITO the affiant stated that he conducted a NICHE search in respect of “D” also known as “John Dailean.” On cross-examination Detective Constable Merrigan acknowledged that he discovered from the NICHE search that “John Dailean” or “D’s” birthday was on July 28. Accordingly, contrary to the impression left by paragraph 82 of the ITO, the police had the true information from their interview of H.M. that the connection between the applicant and G.C. first arose in late July around the time G.C. was accused of taking money from “D” on his birthday and not before. The applicant submits that this information obtained from H.M. was not set forth in the ITO.
[12] The applicant submits that the only information in the ITO respecting any contact between the applicant and G.C. was that they had met at a party at which time G.C. learned that the applicant worked as an escort and that it was an easy way to make money. The ITO did not set out any evidence of “grooming” of G.C. by the applicant or “pre-planning” or indeed any contact between the applicant and G.C. going beyond meeting at a party.
[13] The applicant argues that the test relating to the requirement in s. 487(1)(b) of the Criminal Code for “reasonable grounds to believe [the proposed search] will afford evidence with respect to the commission of an offence” must be more than suspicion or a fishing expedition, pointing to the case of CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743 (S.C.C.) at para. 29 where was stated “the broad powers contained in s. 487(1) do not authorize investigative fishing expeditions, nor do they diminish the proper privacy interests of individuals or corporations.”
[14] The applicant submits that if the false information respecting “Tizzy” and the misleading information implying the existence of a connection between the applicant and G.C. in April or May, 2017 is removed from the ITO there would be no evidentiary record to support the issuance of the search warrant for the her cell phone for any period prior to July 28, 2017.
[15] The applicant also points out that the ITO recites at paragraph 14 that the results of the Production Order issued August 31, 2017 in respect of her cell phone showed “constant text messaging, phone calls and Internet access” between the dates of July 4 and August 23, 2017.” She argues on this basis that there cannot be any authorization for a search of her phone for any period prior to July 4.
[16] Finally, the applicant submits that the police were under an obligation at each stage of the search to ensure that the manner of the search was reasonable. Therefore, once the police confirmed that “Tizzy” was dead they had an obligation to return to the issuing justice to see if the parameters of the search should be changed.
Position of the Crown
[17] The Crown submits that it is not the reviewing court’s proper role to substitute its view for that of the issuing justice and that the ultimate issue is whether the search warrant could have issued in the circumstances.
[18] In response to the applicant’s position with respect to the alleged misrepresentation in the ITO concerning the chronology derived from the interview of H.M., the Crown points to the case of R. v. Sanchez, 1994 CanLII 5271 (ON SC), [1994] O.J. No. 2260 (S.C.J.) in which Hill, J. made the following observations with respect to the review of a search warrant information:
(a) the specificity and legal precision of drafting expected of pleadings at the trial stage is not a measure of quality required in a search warrant information;
(b) judicial review of the search warrant information requires scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph; and
(c) an issuing justice is entitled to draw reasonable inferences from stated facts and an informant is not obliged to underline the obvious.
[19] Crown points out that a summary of the interview with H.M. was provided. The only error was that the sentence at subparagraph 82(g), which linked the time when H.M. first met G.C., while working for “Kiki,” with G.C. “taking money that she shouldn’t have,” should have been broken up. However, the Crown says that that error did not represent a material misrepresentation.
[20] The Crown points out that the issuing justice had before him/her, at paragraph 29 of the ITO, a summary of the August 6, 2017 statement of G.C. which described when she was first accused of stealing the money. This was when she was picked up in a vehicle by two females and two males during the week prior to her interview, that is at the end of July.
[21] With respect to the date range set forth in the ITO going back to May 1, 2017, the Crown points out that the nature of the human trafficking offence is such that connections and historical involvement between parties have investigative value. It was clear that there was a historical association between the applicant and G.C. on the basis that G.C. reported in her statement that they had met at a party.
[22] The Crown submits that the nature of the human trafficking offence is such that the police needed to look at the data from the cell phone search over a period of time, not at a moment in time. There was ample evidence that the human trafficking activity was conducted by telephone and by text and that it was therefore very relevant for police to carry out a historical review to explore what other evidence may shed light on the offences allegedly perpetrated against G.C. during the charge period.
[23] The Crown submits that what the police were looking for was set forth in the broad language of paragraphs 84 and 85 of the ITO, as follows:
I believe that L.R. used her iPhone to actively traffic [G.C.] in August of 2017. I further believe that accessing the data contained within her device between May 1st, 2017 and the date of her arrest, August 15th, 2017 will provide additional evidence to support the charges before the courts.
This date range will include the dates from [G.C.] initially met R. up until her arrest. This range will allow investigators to identify all communications leading up to the time of the offences and will assist in identifying the yet to be identified suspect is known only as “Tizzy,”
(underling added)
[24] The Crown submits that the broad language in paragraphs 84 and 85 is supported by the approach taken by the Supreme Court of Canada in CanadianOxy Chemicals to the phrase “evidence with respect to the commission of an offence” describing it at para. 15, as a “broad statement, encompassing all materials that might shed light on the circumstances of an event which appears to constitute an offence,” and that “anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability falls within the scope of the warrant.”
Guiding Principles
[25] The guiding legal principles respecting judicial authorization for searches and the review of judicial authorizations were very usefully set out by Di Luca, J. in the recent case of R. v. Otto, 2019 ONSC 2514 (S.C.J.) at paras. 17-23. The principles which are pertinent to the case at bar may be summarized as follows (authorities cited in Otto omitted):
(a) search warrants are generally issued on the basis of “reasonable and probable grounds,” a standard that requires “credibly-based probability;”
(b) the inquiry has both a subjective and objective component. The affiant of the ITO must personally believe in the existence of reasonable and probable grounds and the belief must be objectively reasonable;
(c) an officer has an obligation to make full, fair and frank disclosure in an ITO;
(d) the ITO must establish a basis for the reasonable belief that the items being searched will afford evidence in respect of an offence under investigation;
(e) the issuing justice is required to make a judicial determination as to whether sufficient grounds exist for issuance of the warrant, based on the facts conveyed in the ITO;
(f) an issuing justice is permitted to draw reasonable inferences from stated facts, and the affiant need not underline the obvious;
(g) on a review, there is a presumption that the authorization in question is valid and the applicant bears the onus of establishing that the ITO was insufficient to justify issuing the warrant;
(h) the role of the reviewing judge is not to substitute his or her view for that of the issuing justice, but rather, to assess whether, on the basis of the material before the issuing justice, as amplified and excised on review, the authorizing justice could have issued the warrant;
(i) the review is conducted based on the whole of the ITO, using a common-sense approach sensitive to all the circumstances. It is not an exercise in picking apart the drafting of the ITO looking for minor imperfections, misstatements or omissions;
(j) while the police are required to draft an ITO precisely and clearly as possible, they are not expected to spell things out as clearly as counsel and are not required to include every detail, no matter how minute, of the police investigation; and
(k) the question is ultimately whether the core substance of the ITO could support issuance of the warrant.
Analysis
[26] Hill, J. characterized the question of whether the core substance of the ITO could support issuance of the warrant in this way in R. v. Persaud, [2016] O.J. No. 6815 (S.C.J.) at para. 64:
It will not be surprising that an ITO will have some flaws — "[f]ew applications are perfect"…The question remains whether, following any amplification and/or excision, the core substance of the ITO could support the justice of the peace's exercise of discretion to issue the warrant.
[27] I am persuaded that, insofar as the ITO described that one purpose for searching the applicant’s cell phone was to identify “Tizzy,” it was misleading. The issuing justice was not told that the police had information from two independent confidential known sources identifying “Tizzy” and suggesting that he was dead.
[28] I am also persuaded that, insofar as the ITO suggested that G.C. allegedly took money from “D” as early as May, 2017, it was also misleading. The police did not disclose that H.M. reported in her statement that G.C. took the money on “D’s ” birthday and that they knew from their NICHE search that this was on July 28. As a result, the only information that police had of any connection or interaction between the applicant and G.C. was that they had met at a party at which time the applicant informed G.C. that she was working as an escort and that it was an easy way to make money.
[29] The question therefore becomes whether, following the excision of the references to “Tizzy” and the inference that G.C. allegedly took money as early as May, 2017, the core substance of the ITO could support the issuance of the warrant on the basis suggested by the Crown. As indicated above, this was to enable the police to investigate the existence of any contacts or communications between the applicant and G.C. or others which may shed light on the alleged offences committed during the charge period, particularly human trafficking.
[30] In Fontana and Keeshan, The Law of Search & Seizure in Canada (10th ed.) at p. 112 it is stated that the requirement that the items to be seized have some value as “potential relevance” or “potential evidence” means that “there must be some evidentiary nexus between those items and the offence alleged, and the nexus must be supported by adequate facts and the information. If an information for a warrant does not disclose any basis upon which it can be concluded that the items relate in an evidentiary way to the offence, then the warrant will be quashed.”
[31] Counterbalanced against the broad approach to the phrase “evidence with respect to the commission of an offence” at para. 15 of Canadian Oxy is the passage at para. 29 cited above that “the broad powers contained in s. 487(1) do not authorize investigative fishing expeditions, nor do they diminish the proper privacy interests of individuals or corporations.”
[32] However, it is noted that the Supreme Court of Canada also emphasized at para. 22 the role that search warrants play in furthering the investigative function of police as follows:
The purpose of s. 487(1) is to allow the investigators to unearth and preserve as much relevant evidence as possible. To ensure that the authorities are able to perform their appointed functions properly they should be able to locate, examine and preserve all the evidence relevant to events which may have given rise to criminal liability. It is not the role of the police to investigate and decide whether the essential elements of an offence are made out — that decision is the role of the courts. The function of the police, and other peace officers, is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid, and then present the full and unadulterated facts to the prosecutorial authorities. To that end an unnecessary and restrictive interpretation of s. 487(1) defeats its purpose.
[33] As indicated above, the warrant for the search of the applicant’s cell phone is presumed to have been validly issued, and the applicant bears the onus of showing that the ITO was insufficient to justify its issuance.
[34] The ITO did set forth facts that the applicant and G.C. met at a party and that this could have been as early as May, 2017. Moreover, there was a nexus between the circumstances of that interaction and the commission of the human trafficking offence in that the applicant and G.C. discussed escorting and that it was an easy way to make money. It was not a case of the applicant and G.C. having no discussion at their initial meeting or having spoken of matters completely unrelated to the sexual services industry. Given this, I am unable to say that the ITO failed to disclose any basis upon which it could have been found by the issuing justice that the data on the applicant’s cell phone during the date range commencing May 1, 2017 related in an evidentiary way to the human trafficking offence.
[35] Moreover, my role on review is not to substitute my view for that of the issuing justice, but rather, to assess whether the authorizing justice could have issued the warrant. I am satisfied that the issuing justice could have issued the warrant on the basis described above. The date range proposed by police was not overly broad or unreasonable. The applicant has therefore failed to discharge her onus and the application must be dismissed.
Section 24(2) Review re Section 8 Breach Respecting Production Orders
[36] In my ruling released August 2, 2019 and reported at 2019 ONSC 4605 I found a s. 8 breach by police on the basis that there were no reasonable and probable grounds that the Production Orders in respect of Ms. R.’s and her co-accused Mr. T.’ cell phone numbers will afford evidence with respect to the commission of the offences. It is therefore necessary to carry out a review of the admissibility of the resulting evidence under s. 24(2) of the Charter.
[37] The framework for carrying out an assessment and balancing of the effect of admitting evidence obtained following a breach of a Charter right was laid down by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32.
[38] The Court of Appeal in R. v. Dhillon, 2010 ONCA 582 summarised, at para 41, the approach to the enquiry mandated by Grant as follows:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:
(1) the seriousness of the Charter-infringing state conduct (admission may send a message the justice system condones serious state misconduct),
(2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and
(3) society's interest in the adjudication of the case on its merits.
The court's role on a s. 24(2) application is to balance the assessment under each of these lines of inquiry to determine whether, considering all of the circumstances, admission of the evidence would bring the administration of justice into disrepute.
(i) Seriousness of the Charter-infringing State Conduct
[39] As observed by the Court of Appeal in Dhillon at para. 46, the Supreme Court of Canada in Grant directed courts to consider at the first stage of the enquiry the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter. At paras. 73-74 of Grant the Court stated:
State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.
[40] In the case at bar there was no evidence that the police acted otherwise than in good faith. They sought and obtained judicial authorization to acquire the cellular service providers’ records. The police did not flagrantly disregard Charter standards or act deliberately in a way that may be regarded as contrary to those standards. There was nothing done by the police which would undermine public confidence in the rule of law. I find that application of the first branch under Grant would favour inclusion of the evidence derived from the Production Orders.
(ii) The Impact of the Breach on the Charter-protected Interests of the Applicant
[41] As noted in Grant at para. 76 the second branch focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the applicant. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that the administration of justice may be brought into disrepute.
[42] The Production Orders were sought to obtain subscriber information, phone call logs made by and received by each phone number, as well as cell phone tower site history for each phone number which would provide investigators with a geographic area from which calls were made and text messages sent. The Production Orders would not yield the content of any phone calls or text messages sent or received by the applicant. As such, the intrusiveness of the Charter breach would be considered to be at the low end of the scale. In my view, the second branch would also favour inclusion.
(iii) Society's Interest in the Adjudication of the Charges on their Merits
[43] The charges in the indictment involve extremely serious alleged crimes perpetrated on a 15-year-old child. Society has a high interest in adjudication of the charges on their merits. Although the Crown acknowledges that the evidence derived from the Production Orders is not pivotal to its case against the applicant, when considered cumulatively with the other evidence in the Crown’s case, the truth-seeking function of the trial would be better served by inclusion of the evidence.
[44] In my view the third branch also favours inclusion.
Disposition
[45] All three branches of the Grant analysis favour inclusion. I find that the applicant has failed to meet her onus in s. 24(2) of the Charter to establish that the evidence derived from the Production Orders should be excluded. The application is therefore dismissed.
D.A. Broad, J.
Date: October 25, 2019