Superior Court of Justice - Ontario

COURT FILE NO.: CJ 9373

DATE: 2019-12-03

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 25, 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PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA

ADDENDUM TO RULING RE: APPLICATION FOR EXCLUSION OF EVIDENCE DERIVED FROM SEARCH OF CELL PHONE PURSUANT TO SECTIONS 8 AND 24(2) OF THE cHARTER OF RIGHTS AND FREEDOMS

[1] At the conclusion of the release of my Ruling on October 25, 2019 counsel for the applicant, Mr. Mattson, sought to have my Ruling revisited in reference to his oral submission that there could not have been any authorization for a search of the applicant’s phone for any period prior to July 4, 2017. The applicant’s oral submission with respect to the issue was referenced at para. 15 of my Ruling. As indicated at para. 15, the applicant based this submission on the statement at para. 14 of the ITO that the results of the Production Order issued August 31, 2017 showed “constant text messaging, phone calls and Internet access between the dates of July 4 and August 23, 2017.”

[2] Mr. Mattson submitted that my Ruling failed to address his oral submission which constituted a facial attack on the ITO and therefore I should re-visit the issue. Mr. Mattson advised that, having made his oral submissions on the voir dire, he was not requesting an opportunity to make further submissions in chief. As the Crown had not made any submissions with respect to issues raised by Mr. Mattson in oral submissions, with the agreement of counsel, I directed that the Crown provide its written submissions on whether my ruling should be re-visited and if so, its response to the applicant’s submissions. The applicant was given leave to file a written reply. These written submissions have now been received.

[3] The applicant applied for exclusion of evidence derived from search of her cell phone by Application dated February 7, 2019. The ground for the Application was that the date range for the search of the applicant’s cell phone, namely May 1 to August 14, 2017, was overly broad on the basis that there was no evidentiary basis to conclude that data on the cell phone from May 1, 2017 would afford evidence of the offences alleged to have occurred between July 30, 2017 and August 6, 2017. The applicant submitted that there was therefore a breach of her rights under s. 8 of the Charter.

[4] There was no reference in the applicant’s initial Application to a facial attack on the ITO in reference to the statement at para. 14 of the ITO regarding results of the Production Order as reflected in paragraph 14 of the ITO and the suggestion that no search warrant could have issued for any period prior to July 4, 2017.

[5] The applicant subsequently brought an Application for leave to cross-examine the affiant and sub-affiant of the ITO dated September 24, 2019. The stated grounds for the Application were that:

(a) full, fair and frank disclosure was not made to the issuing justice in regard to the information surrounding the identity of another suspect in the investigation of the offences nicknamed “Tizzy”;

(b) there were no reasonable grounds to suggest that communications related to the offences would be found on the applicant’s cell phone between the dates of May 2017 to August 2017; and

(c) the information from an interview of another suspect was misleading.

[6] As with the February 7, 2019 Application, the September 24, 2019 Application did not include as a ground any suggestion that no search warrant could issue for any period prior to July 4, 2017.

[7] The Court of Appeal addressed the process to be followed when an accused seeks exclusion of evidence alleged to have been obtained by a constitutional infringement in R. v. Sadikov 2014 ONCA 72 (C.A.) at para. 36:

In trials in the Superior Court of Justice, an accused who seeks exclusion of evidence alleged to have been obtained by a constitutional infringement is required to comply with Rule 31 of the Criminal Proceedings Rules. The Rule promotes constructive use of judicial resources and avoids surprise by requiring, among other things, a written application that contains a precise, case-specific statement of the basis and grounds upon which exclusion is sought, a detailed summary of the evidence or other material upon which reliance is placed, and a statement of the manner in which the applicant proposes to introduce the evidence. Challenges to the constitutionality of warranted searches may involve either or both a facial and sub-facial attack on the authorizing warrant. No reason in principle requires a separate voir dire for each mode of attack, although many prefer a discrete hearing for each.

(emphasis added)

[8] The applicant did not follow this process in reference to the ground that the search warrant should not have issued for any period prior to July 4, 2017. Specifically, the ground was not included as part of a “precise, case-specific statement of the basis and grounds” upon which exclusion of evidence was sought in either of her written Applications.

[9] The Crown did not expressly object to the applicant making submissions with respect to the ground on the basis that it had not been referred to in the written Applications, and did not respond to it in its submissions. In fairness, the applicant did not seek leave to first raise the ground in oral submissions and did not otherwise alert the Crown and the court that she proposed to raise a ground not referred to in her written Applications.

[10] As noted, the Court of Appeal in Sadikov made specific reference to the desirability of avoiding surprise in pointing out the requirement for the inclusion of a precise, case-specific statement of the basis and grounds relied upon in a written application to exclude evidence on constitutional grounds.

[11] The Crown, in its written response to the request to re-visit the Ruling, made reference to the case of R. v. Nazarek, 2016 BCSC 1927 (B.C.S.C.) to address the principles which should inform the exercise of my discretion to re-open my Ruling. Watchuk, J., at paras. 22 and 23, stated as follows:

The exercise of discretion by a trial judge with respect to applications to re-open, or to re-calling a witness for additional examination, is a function of the issues and facts that arise in a particular case, including the need for the orderly conduct of the trial.

Concerns regarding the orderly and expeditious conduct of the trial have been frequently commented on by the judiciary. In R. v. Sipes, 2008 BCSC 1257 (B.C. S.C.), Smart J. held (at paras. 30 and 31):

A trial judge's management power can include requiring reasonable notice and particulars of a pre-trial application from the defence, including a synopsis of the evidence to be adduced and the issues and the law to be argued. As stated in Horan, a judge owes a duty to the parties and to the public to promote the efficient use of court time and to ensure that all parties are treated fairly.

It is important that each party to an application clearly knows in advance of the application what is at issue, what evidence will be led, what arguments will be made and what case law will be presented.

[12] Watchuk, J. went on the observe at para.26:

The re-opening of voir dires has been permitted where new disclosure has arisen. However, these cases appear to be fact specific and the courts in these cases also examined the context, including trial tactics, timing of the application, stage of the proceedings, agreements between counsel, and whether the content of the new disclosure ought to have been known to the applicant party.

[13] The applicant took no issue, in her reply submissions, with the authority or applicability of the foregoing statement of the principles derived from Nazarek.

[14] The applicant did not provide any explanation as to why the ground now relied upon was not identified in her written Applications. Moreover, the applicant did not address in her reply submissions the question of the basis upon which the court should exercise its discretion to re-open the Ruling on the admissibility of the cell phone search evidence.

[15] In my view, the applicant has not satisfied her onus of demonstrating why the court should exercise its discretion to re-open the Ruling on the basis of a ground not raised in its written applications.

[16] In the event that I am wrong in the foregoing finding, I find that the ground for the applicant’s facial attack on the ITO based on para. 14 would not change the conclusion in my Ruling that the issuing justice could have issued the warrant. The Ruling stated at para. 34 that it cannot be said that the ITO failed to disclose any basis upon which it could have been found 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.

[17] As indicated in the Ruling, the ITO sought authorization to search the applicant’s cell phone 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.

[18] The statement at para. 14 of the ITO that the results of the Production Order issued August 31, 2017 showed “constant text messaging, phone calls and Internet access between the dates of July 4 and August 23, 2017” does not preclude the prospect that evidence with respect to the commission of the offence may be located in one or more of the four categories of data sought, including internet history, contact lists and pictures/videos, none of which rely upon a particular telephone number for their use.

[19] As indicated in my Ruling, the warrant for the search of the applicant’s cell phone is presumed to be validly issued, and my role on review is not to substitute my view for that of the issuing justice. I am satisfied that the issuing justice could have issued the warrant, even in the face of para. 14 of the ITO.

[20] The application of the applicant to re-visit my Ruling on the application to exclude evidence derived from the search under warrant of her cell phone is therefore dismissed.

D.A. Broad J

Date: December 3, 2019