COURT FILE NO.: 17-9001
DATE: 2019/02/19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
John Anstie
Applicant
Counsel:
Julien Lalande, for the Respondent
Michael Crystal and Rosellen Sullivan, for the Applicant
HEARD: February 4, 5, 2019
ruling on voir dire-search warrant issue
A. E. London-weinstein j.
[1] The Applicant seeks judicial review of the search warrant issued in this case on the grounds that the Information to Obtain in support of the warrant contained information obtained in violation of his s. 8 Charter rights. The Applicant further argues that the ITO does not contain full and frank disclosure of material facts. The warrant sought blood and medical records of Mr. Anstie which were held at the hospital where he was treated after a collision which killed two people in another vehicle.
[2] The Applicant seeks an order excising the erroneous information and a declaration that the search warrant could not have been issued on the strength of the information which remains.
[3] Further, the Applicant seeks an Order pursuant to s. 24(2) of the Charter, excluding the results from the Crash Data Recovery (CDR) download, the paraphernalia found in his vehicle, the vials of blood, the Applicant’s medical records and any derivative evidence that flows from the seizure.
[4] Given the time constraints in regard to this motion, I agreed at the request of counsel to provide my ruling on the search warrant in a truncated time frame, and to identify whether or not I found there were breaches of s. 8 of the Charter.
[5] Crown counsel has made s. 24(2) arguments already, but the defence requested that it be permitted to make the s. 24(2) arguments after it heard my ruling on the warrant and on the s. 8 issues. I have agreed to this arrangement.
Relevant Facts on the Voir Dire:
[6] On December 4, 2016 at approximately 9:20 p.m. John Anstie was driving alone in a rented dark coloured Nissan along March Road approaching the on ramp to Highway 417. Some ten minutes earlier, Jennifer Currah was on her way to the Almonte Hospital with her child. As her car approached the small dark vehicle, the small dark vehicle swerved into the oncoming lane. She veered right towards the shoulder, narrowly avoiding a head-on collision. She felt that the passage of the vehicle was so close that her car shuddered as the vehicle pushed by with little room to spare. In her rear view mirror, she saw the car straighten out and continue.
[7] A short time later, the black Nissan rental car driven by John Anstie collided with the vehicle of Joan and Doug Foster. The impact of the collision caused the Foster vehicle to be turned upside down. Mr. Anstie’s vehicle was in the wrong lane. Det. Bruno Gendron and his partner Det. Josee-Anne Harris arrived on the scene. They made some initial observations of the scene and marked the area with pylons to help preserve the evidence on the roadway. The speedometer of the Nissan was frozen at 120 km/h. Police attended the hospital. The vehicle was towed to Metro West which is a secure identification facility. On December 4, Det. Gendron searched the vehicle looking for the keys. In doing so, he found a knapsack with drug paraphernalia in it and a bag of marijuana. Two capped syringes were in plain view in the front passenger foot area. Det. Gendron could not locate the keys. The rental agency, Enterprise, provided the key fob and the CDR data was downloaded. Police then sought a warrant to obtain the blood vials and medical records of Mr. Anstie. Detective Gendron testified on the voir dire and an application record was also provided.
Legal Analysis: Validity of the Warrant:
[8] It must be noted that a reviewing justice does not conduct a second hearing of the application for the warrant. The test is whether there was reliable and credible evidence that might reasonably be believed on the basis of which the authorization could have been issued. In considering the evidence, I must exclude erroneous information. The affidavit should be clear and concise and should never trick the reader. R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65, 149 C.C.C. (3d) 449.
[9] The legal obligation of anyone seeking an ex parte authorization is full and frank disclosure. There should not be strategic omissions. (para. 47) The requirement for full and frank disclosure is based on the fact that only the individual seeking the warrant is present with the issuing judicial official.
[10] I agree with counsel for the Applicant that there were certain parts of the ITO which, in my view, could have mislead the issuing justice. The fact that the affiant did not disclose that much of the drug paraphernalia was found in a knapsack was potentially misleading in two aspects.
[11] First, failing to disclose that the drug paraphernalia was found in an enclosed knapsack could have left the impression that the drug paraphernalia, which was contained in a partially zipped knapsack, was loose in the car, strengthening the available inference that Mr. Anstie may have been using drugs in the car, perhaps just prior to driving. The failure to disclose that the drug paraphernalia, including the stone pipe, the tourniquet and the other items were actually contained in a knapsack, denied the issuing justice with information which would have put the evidence into proper context.
[12] Secondly, in addition to providing important context as to how the drug related material was contained in the car, the information was important because items in a personal container such as a knapsack may be afforded a higher expectation of privacy, depending on the factual context at issue. In an ex parte hearing, an issuing justice is entitled to be provided with contextual information which relates directly to assessing the privacy interests at issue. Drug paraphernalia in plain view in a rental car which has been lawfully seized, engages different privacy interests than items which are contained in an individual’s personal knapsack. While the affiant also indicated in the ITO that the items were found as a result of an inventory search, in fact, Det. Gendron testified that he was searching for a key. He did not make an inventory either in his note book, or in his investigative action report. The omission of any mention of the knapsack, along with the description of the search as being for the purpose of accounting for personal belongings, deprived the issuing justice of context.
[13] In my view, the omission and the characterization of the search as being for the purpose of accounting for personal belongings was misleading. As a result, I would excise paragraph 26 from the ITO.
[14] In addition, I agree with the Applicant that it would have been preferable, in the interests of providing a clear and more complete record to the issuing justice, to mention that no odour of marijuana was noted. I am not suggesting that police are required to mention everything which they did not observe during their investigation. However, in a case where police were investigating an allegation of impaired driving by drug causing death, it would have been relevant for the issuing justice to know that no evidence of impairment was observed, and no odour of marijuana was observed. In addition, there was no evidence in the car that marijuana had been recently consumed. It would have been preferable to provide the issuing justice with the fact that no roach clips, or marijuana cigarette remainders, were located in the car.
[15] When I excise the erroneous references, even before considering the evidence from the CDR I am left with the following information contained in the ITO:
• The speedometer was frozen at about 120 km. The posted speed limit was 60.
• There were two capped needles located in the passenger side foot well of the Nissan
• The Nissan was initially travelling northbound and somehow made its way to the south lane to meet with the Honda head on.
• Post impact, the Nissan continued north bound due to the momentum previously attained by its speed and it remained facing in that direction.
• The Honda was initially travelling southbound and was forced rearward and north bound due to the force exerted by the Nissan upon impact.
• The impact took place in the southbound lane just beside the west fog line as noted by deep gouges in the asphalt.
• Jennifer Currah’s witness statement indicated that on the same night, December 4, she and her 6 year old son were heading to Almonte Hospital. She exited the 417 off ramp and turned south on March Road. Sometime after 9:10 p.m. a vehicle travelling northbound swerved into her lane, narrowly missing striking her front bumper. She described the vehicle as a smaller dark coloured vehicle which was travelling at a high rate of speed since it caused her car to shake as it passed by.
• She was extremely shaken up and upset over the incident and arrived at the hospital at 9:24 p.m. She knows her encounter with the vehicle occurred after 9:10 p.m. and was certain of her departure and arrival times as she confirmed them on her phone’s GPS system.
[16] In addition, the vehicle was travelling in the opposite lane just before the crash
• The area of impact was in the southbound lanes of March Road meaning Mr. Anstie’s vehicle had crossed into oncoming lane of traffic.
[17] Reasonable and probable grounds has been described as the point where credibly based probability replaces suspicion (Hunter v. Southam, 1984 33 (SCC), [1984] 2 S.C.R. 145). It is not a high standard. The totality of the circumstances must be considered.
[18] I found, there was some credible and reliable evidence that might reasonably be believed providing a basis for the issuance of the warrant. I came to this conclusion even without consideration of the CDR evidence. However, for reasons which I will explain, I did not find that Mr. Anstie had a privacy interest in the CDR data and I declined to excise that information from the ITO for the purposes of determining whether the warrant could have issued.
[19] I was not able to find as a fact that the marijuana was in the front passenger wheel well area, despite the photograph showing what looked like a baggie in that location. Detective Gendron was certain in his evidence that the marijuana was found in the knapsack even as he looked at this photograph in court. I appreciate that the photograph appears to depict a baggie in the front passenger floor area of the vehicle which would have been photographed by Identification Officer Tennant. I understand that there was only one baggie of marijuana found in the car. Detective Gendron may have been simply mistaken in regard to where he located the marijuana. However, he was emphatic in his evidence that he found the marijuana in the knapsack. The Identification Officer was not called on the voir dire to contradict this evidence. In light of Det. Gendron’s certainty, I could not find as a fact on the voir dire, that the marijuana was in the floor area of the front passenger seat from the photograph alone. However, two capped syringes were found. A surgical glove was also found in the front passenger foot well. There was no evidence called on this voir dire that pain medication was administered by a paramedic into Mr. Anstie at the scene, although that is a possibility raised by defence counsel. However, based on the evidence before me, I found this inference to be speculative and not as reasonable an inference as the finding that the needles belonged to Mr. Anstie. In assessing the inferences which I can draw from the presence of the capped needles in the front passenger foot well, I am cognizant of the difference between an inference and speculation. Any inferences based on circumstantial evidence must be reasonable and not speculative. The line between a plausible theory and speculation is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience is reasonably capable of supporting the desired inference. Alternative inferences must be reasonable, not just possible (R. v. Villaroman 2016 SCC 33 para 38 and 41). I have inferred that the needles in the vehicle passenger foot well belonged to Mr. Anstie and were not left by a paramedic who may have treated him at the scene.
[20] Further, in relation to the CDR, in the particular circumstances of this case, I find that there was no breach of the Applicant’s right to be free of unreasonable search or seizure in relation to the CDR device and the correlating data. Thus, the driving information revealed in the CDR was properly before the issuing justice in my view
[21] In conclusion, after excision of the erroneous or misleading information from the ITO, there existed reliable and credible evidence, capable of belief, upon which the warrant could have issued. I turn now to the analysis of whether there was a privacy interest in the CDR data.
The relevant facts are these:
[22] The CDR data in this case records the last five seconds prior to a collision. The data provides information regarding speed, whether brakes were applied, and steering information. The Nissan was rented and was the property of Enterprise Car Rentals. Mr. Anstie signed a rental agreement on November 22, 2016. The agreement stipulates that the vehicle is not to be used in an illegal or reckless manner. The agreement stipulates that the owner of the vehicle, in the event of a breach of one of those conditions, automatically terminates the right to use the vehicle, and that the owner has the right to seize the vehicle without legal process or notice to the renter. The rental contract also stipulates that the Renter consents to any Event Data Recorder or similar device, being retrieved and the data used by the owners of the vehicle, in this case Enterprise. The car was lawfully seized after the collision pursuant to s. 489.2 of the Criminal Code. No issue was taken with the lawfulness of that seizure. Police did not seek a warrant, prior to downloading the CDR from the Nissan while it was at the Metro West. There was no urgency to the timeline in terms of when the retrieval of the data could be executed. An individual from Enterprise provided police with the key fob to the vehicle when asked to do so. I have concluded that Mr. Anstie had no reasonable expectation of privacy in the informational data, and a highly diminished, if not completely extinguished, territorial privacy interest in the device itself.
[23] The issue before me is whether Mr. Anstie had a reasonable expectation of privacy in information about his pattern of driving in the last five seconds prior to a collision which killed two people. In my view, no reasonable expectation of privacy in that information arises on the facts of this case.
[24] A key factor in my analysis of this matter turned on whether there is any private information revealed in the data. I have reviewed the decisions of R. v. Glenfield, 2015 ONSC 1304, [2015] O.J. No. 1212, and R. v. Hamilton, 2014 ONSC 447, and with respect, I am unable to agree that there is anything about the data which would characterize it as personal, or related to the concept of a biographical core of information which would give rise to a privacy interest. Further, the data was not created by Mr. Anstie in the expectation that it would be kept private, which might have otherwise given rise to a privacy interest even if core biographical information was not disclosed. (See R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19
Applicable Legal Principles.
[25] Section 8 of the Charter protects a right to privacy and protects people and not places. Hunter v. Southam, 1984 33 (SCC), [1984] 2 S.C.R. 145. The right to privacy is not absolute. The Charter protects what we have come to term a reasonable expectation of privacy. As Justice Dickson noted in Hunter, the limitation on the right guaranteed by s. 8 whether it is expressed negatively as freedom from unreasonable search and seizure, or positively as an entitlement to a reasonable expectation of privacy, indicates that an assessment must be made as to whether in a particular situation, the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.
[26] A reasonable expectation of privacy is to be determined through an assessment of the totality of the circumstances of the case. (R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128)
[27] The issue to be determined is whether the Applicant had a subjective expectation of privacy and whether that subjective expectation of privacy was objectively reasonable. (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432)
[28] The concept of privacy is a broad concept and the law, as pointed out in Tessling, has evolved to recognize a number of privacy interests including: personal privacy, involving bodily integrity; territorial privacy, involving questions of privacy related to places we occupy and informational privacy, which relates to the right to determine how much data about an individual is shared with others. These categories are not isolated silos, and there may be overlap from one category to another, as indicated in Tessling
[29] Before determining whether a search is reasonable, the accused must first establish that a reasonable expectation of privacy existed to trigger the protection of s. 8.
[30] The present case involves a territorial interest in privacy and an informational interest in privacy. The territorial element relates to the seizure of the actual physical CDR device from the rental car. On the particular facts of this case, even though the subjective aspect of the reasonable expectation of privacy is a relatively low hurdle, I cannot find that Mr. Anstie had any realistic claim to a reasonable expectation of privacy in the rental vehicle itself (a territorial type of privacy interest) after it had been seized lawfully after the collision pursuant to s. 489.2 of the Code.
[31] Mr. Anstie did not own the vehicle, he rented it. I recognize that a territorial right to privacy can exist in a vehicle, as discussed in cases like R. v Belnavis, [1997] 3 S.C.R. 34. However, on the particular facts of this case, given the rental vehicle was lawfully seized post collision, if there was a subjective territorial privacy interest in the vehicle which Mr. Anstie could assert, it would be a highly diminished interest. Looking at the totality of the circumstances, if an interest of this type existed, it would not be regarded as being objectively reasonable.
[32] If I am incorrect on that point it is not determinative, as the real issue in this case is whether there was a right to privacy in the informational data in the CDR which was recovered from the vehicle.
Subjective Expectation of Privacy:
[33] In R. v. Plant, 1993 70 (SCC), [1993] 3 S.C.R 281, the court rejected a categorical approach to informational privacy, and asserted that only information that is personal and confidential should be protected.
[34] Justice Sopinka wrote,
“In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.”
[35] The facts in Plant are that police consulted electricity use records of a home as part of a marijuana grow operation investigation. Information about relative electricity use in the neighbourhood was included alongside visual observations about the home in an affidavit to obtain a search warrant. The accused’s argument that use of the electricity records were obtained through a warrantless search which violated s. 8 of the Charter was rejected by the Court for two reasons.
[36] The first reason for finding there was no breach of s 8 was that the nature of the information did not reveal any personal intimate details of the Appellant’ s life, since electricity consumption reveals very little about the personal life style or private decisions of the occupant of the home.
[37] A further reason for rejecting the reasonable expectation of privacy related to the relationship between the utility and the accused. In Plant, the utility permitted police to access the utility’s electronic records. Electricity consumption records of a particular address were available to the public at large.
[38] The Court in Plant considered the totality of the circumstances of the information, including the type of information disclosed and found that there could be no reasonable expectation of privacy.
[39] In the case before me, Mr. Anstie did not own the vehicle, he rented it. The rental agreement provided a proviso that any CDR records would be retained by the rental company. Mr. Anstie did not testify on the voir dire.
[40] Aside from his signature on the car rental, which referred to Enterprise being able to retain the CDR information, there is no evidence that before me that Mr. Anstie would have a subjective expectation of privacy in the CDR data of the rental car.
[41] However, even if I were to resolve this question in favour of Mr. Anstie, when I turn to the second objective branch of the privacy analysis, which is looking at whether the subjective expectation is objectively reasonable, I am unable to find that a subjective expectation of privacy in the CDR data was objectively reasonable.
Was the Subjective Expectation of Privacy Objectively Reasonable?
[42] The information gathered in this case, in my view, does not expose any intimate details, or core biographical detail related to Mr. Anstie. Nor is it the type of information which was created with the expectation that it would be kept private. In my view, it is not the type of information which requires protection from the state.
[43] There is no risk that core biographical information which an individual might want to keep private will be disclosed by collection of the data, such as the information which was the subject of dispute in cases like R. v. Jones, 2011 ONCA 362, 107 O.R. (3d) 241 and R. v. Vu, 2013 SCC 60, [2013] S.C.J. No. 60, 3 S.C.R. 657. Those cases dealt with cell phones and personal computers, where the data collected is vastly different from the type of data collected on a CDR. One would expect to encounter a great deal of core biographical information on a person’s cell phone, or their personal computer. The devices are ubiquitous, and not surprisingly, full of personal information disclosing intimate details related to the user’s use of the device.
[44] It must be born in mind that the data on a CDR only reveals information which relates to steering, braking and speed in the last five seconds prior to a collision. The manner in which one operates a vehicle five seconds before a collision is not the type of information for which it is objectively reasonable to expect privacy. Driving is a public and highly regulated activity. The cars involved in this collision were captured on a posted video camera. A still of the two cars taken from that video was presented in this court.
[45] I recognize that some information which is not identifiable as core biographical information may still be considered private. As Justice Binnie wrote in R. v. M.A, 2008 SCC 68, 2008 SCC, at para 68, In Dyment, Plant and Tessling:
“…various categories of "information" (including "biographical core of personal information") were used as a useful analytical tool, not a classification intended to be conclusive of the analysis of information privacy. Not all information that fails to meet the "biographical core of personal information" test is thereby open to the police. Wiretaps target electrical signals that emanate from a home; yet it has been held that such communications are private whether or not they disclose core "biographical" information. R. v. Sanelli, 1990 150 (SCC), [1990] 1 S.C.R. 30 (S.C.C.); R. v. Wiggins, 1990 151 (SCC), [1990] 1 S.C.R. 62 (S.C.C.), and R. v. Thompson, 1990 43 (SCC), [1990] 2 S.C.R. 1111 (S.C.C.). The privacy of such communications is accepted because they are reasonably intended by their maker to be private.”
[46] In this case, I have also considered that Mr. Anstie did not own the vehicle. He rented it, and the rental agreement stipulated that Enterprise would access any CDR data in the event of an accident. The fact that the person asserting an expectation of privacy claim should have known that terms governing a commercial relationship may have permitted disclosure is not necessarily determinative.( R. v. Gomboc, 2010 SCC 55 at para 34). I agree with counsel for the Applicant that one cannot be said to have contracted away one’s constitutional right to be free from unreasonable state intrusion. I did not regard the rental lease to be determinative in this case as to whether any expectation of privacy which Mr. Anstie was asserting in the CDR data was either subjectively or objectively reasonable. It was one factor to be considered in the analysis, as certainly Mr. Anstie would have known that in the event of an accident, the data itself relating to any accident would be retrieved by the company who owned the car. This knowledge would have impacted his reasonable expectation of privacy in the data to some degree. Counsel for Mr. Anstie argued that this is analogous to the recent case of R. v. Reeves, 2018 SCC 56 where the privacy interests in a shared computer were not waived despite the fact that the computer itself was shared. In my view, the facts in the case before me distinguish it from Reeves. In Reeves, the computer was shared, and police obtained a consent from one spouse and searched the computer without a warrant. However, in that case, both parties owned the computer, and the nature of the data which police would be able to access would have been of a personal nature, and would have been created by the accused in part. Further, some of that data was created in the expectation that it would be kept private. In the case before me, Mr. Anstie was merely renting the car, he did not own it, but more importantly, it is the nature of the data itself which in my view, render it unable to give rise to s. 8 protection. The data was five seconds of driving in the moments before a crash. While potentially incriminating, it contains no personal characteristics which I can detect.
[47] A guarantee of informational privacy protects things like the intimate details of the lifestyle and personal choices of the individual that form part of the biographical core data protected by the Charter. (Gomboc, supra)
[48] Data relating to the final five seconds before collision is less invasive of privacy in my view, than heat signatures which were the subject of a claim of privacy in Tessling, or the electricity consumption records in Plant at p. 293.
[49] In my view, this type of data should not attract s. 8 protection. Since there was no reasonable expectation of privacy, s. 8 is not engaged.
[50] If I am wrong in this regard, this search is authorized by the consent of the owner of the vehicle. An individual from Enterprise dropped off the key fob to police. It is a reasonably available inference for me to conclude that consent to the data download was provided at the time that the keys were made available to police. Under this analysis, I find that the search was authorized by law, the law authorizing the search is reasonable and the manner in which the search was carried out is reasonable.
Knapsack Issue:
[51] I did find that there was a breach of Mr. Anstie’s s. 8 right in relation to police accessing Mr. Anstie’s knapsack which was in the rear seat of the vehicle after the vehicle was seized pursuant to s 489.2 of the Criminal Code. I appreciate that police are authorized to examine a vehicle in these circumstances and inventory the items found in the vehicle. See R. v. Wint, 2009 ONCA 52, 93 O.R. 514. I accept that going through purses, or bags, or whatever personal containers are contained in the vehicle is authorized by law in order to inventory the items found in the car. In this case, Det. Gendron testified he was searching for a key to power up the vehicle and access the CDR.
[52] There was no evidence before me that police attempted to inquire about the keys when they attended at the Civic Hospital where Mr. Anstie was being treated according to page 3 of the Investigative Action Report created by Det. Harris and filed as part of the Application Record on this motion. According to the report, Mr. Anstie was conscious in the trauma unit. His parents were also present. He was asked some basic information by Det. Gendron. There is no evidence before me that police made any inquiry in regard to the location of the keys. However, in fairness, although I am certain that police knew they would be conducting a CDR download at this point, and that keys would be required, they may not have realized the keys were not in the car at this point. However, once they realized the keys were not visible in the car, there was no attempt to request them of Mr. Anstie. Instead, for reasons which I will outline below, a search of the vehicle was conducted for the key
[53] In his IA report, Det. Gendron indicates that while searching in the Nissan Altima for keys and doing the interior examination of the vehicle, he located a blue knapsack on the rear passenger seat. Inside the knapsack he wrote that he located a small black plastic bag which appeared to be the same bag that he had previously located in the car. The previous bag had syringes that the city provides to drug users. When he opened the bag, he could see open syringes wrappers, blue elastic tourniquet, used syringes and saline vials. Also in the knapsack, there was a clear plastic Ziploc type bag with small marijuana buds in it. The fresh odour of marijuana could be detected immediately when the bag was slightly opened. He seized the suspected marijuana substance and secured it at the Greenbank Station.
[54] His IA report also indicates that he and Det. Fong completed the vehicle examinations and the information was entered on the field notes. This took place on December 4, after leaving the hospital. The vehicle was stowed on a flat bed at the Metro West facility, which is a secure identification bay.
[55] Nowhere in the IA report is there a reference to Det. Gendron taking an inventory of the contents of the Nissan. There is a notation related to Det. Gendron and Det. Fong completing the vehicle examinations and the information about those examinations being reported on the field notes. I understood this reference to be to examining the vehicles to determine information related to the collision.
[56] In discussion with counsel in regard to this issue, the Crown submitted that the officer’s search of the back pack could have a dual purpose, to both find the keys and to conduct an inventory search. Counsel for the appellant indicates that it must be clear to me that the sole purpose of the search was to conduct an inventory search. I did not find it necessary to resolve this issue, as I found that Det. Gendron was not conducting an inventory search at all, but was looking for the key to the vehicle.
[57] Items listed in the ITO, such as the stone pipe which were seized by Det. Gendron during his search for keys, are not noted in either his duty notebook or his IA. If the purpose of the search was related to taking an inventory, I would have expected that Det. Gendron would have at least noted the fact that he located a stone pipe in either his duty notebook or his IA. There also was no reference in either the IA or the duty notebook to the other items listed in the ITO including: spoons, a lighter, cigarette papers, cotton filters or alcohol swabs.
[58] Similarly, in his duty note book, Det. Gendron had noted that he searched under the vehicle’s seats and surrounding areas to locate the keys to the vehicle. On the rear seat he found a blue back pack containing a plastic bag with used syringes, tourniquet, and saline vials. A clear plastic Ziploc type bag was found with what appeared to be marijuana buds. The bags, the marijuana and the used syringes were seized as evidence. He noted that he could not do the download without the keys to the car. He lodged the marijuana in his gun box for safekeeping.
[59] I have found as a fact that Det. Gendron was not conducting an inventory search, but was looking for the keys to the vehicle in order to do the CDR download.
[60] I find additional support for this conclusion by the fact that on December 6, according to his duty notebook, he seized a cellular phone found in the glove box of the Nissan. If the initial search was to conduct an inventory of the car, it is difficult to explain how the cell phone was not noted on December 4 which is when the purported inventory search was conducted.
[61] Police were able to have a representative from Enterprise attend Metro West and deliver the key fob. Police were then able to do the CDR retrieval. Det. Gendron knew the name of the representative from Enterprise, and I was left with the impression that he had prior similar interactions in relation to rented vehicles.
[62] It would have been a simple thing to simply either seek the keys from Mr. Anstie, or having realized that Enterprise owned the car, seek them from the owner of the vehicle, which was done. The search of the knapsack for the keys, even under the circumstances of a s. 489.2 seizure, in my view, should not have been executed absent Mr. Anstie’s consent to search the knapsack, or an easily obtained telewarrant, enabling police to lawfully search the knapsack.
[63] In conclusion, I have found that the warrant could have issued, that there was no breach of Mr. Anstie’s s. 8 right to be free of unreasonable search and seizure by virtue of the CDR download, and that the search of the knapsack was not part of an inventory search, but that it was in search of a key. Given the lack of urgency, police should not have accessed the knapsack without at least trying to obtain the keys either form Mr. Anstie, or from the owner of the vehicle.
A.E. London-Weinstein J.
Released: February 19, 2019
COURT FILE NO.: 17-9001
DATE: 2019/02/19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
Respondent
– and –
John Anstie
Applicant
Ruling on voir dire-search warrant issue
A.E. London-Weinstein J.
Released: February 19, 2019