Attorney General of Canada v. Levy

[Indexed as: Canada (Attorney General) v. Levy]

Ontario Reports

Ontario Superior Court of Justice

Goldstein J.

September 29, 2020

152 O.R. (3d) 705 | 2020 ONSC 5847

Case Summary

Charter of Rights and Freedoms — Reasons for arrest or detention — Right to counsel — Attorney General applying to send cell phone and results of forensic search to United States regarding murder investigation — Cell phone having been seized in arrest in Canada for immigration violation — Evidence not establishing that Border Services constable failed to give reasons for arrest or failed to advise of right to counsel — Canadian Charter of Rights and Freedoms, s. 10(a), (b).

Charter of Rights and Freedoms — Search and seizure — Search warrant — Police obtaining warrant to search cell phone and communications — Attorney General applying to send cell phone and results of forensic search to United States regarding murder investigation — Timing of execution of warrant did not breach s. 8 of Charter, but police exceeded scope of warrant by obtaining browser history — Charter breach did not result in dismissal of Attorney General's application — Application to send cell phone and communications allowed, but results of search of browser history excluded — Canadian Charter of Rights and Freedoms, s. 8.

Criminal law — Mutual legal assistance in criminal matters — Sending order — Attorney General applying to send cell phone and results of forensic search to United States regarding murder investigation — Cell phone having been seized in arrest in Canada for immigration violation — Police exceeded scope of search warrant by obtaining browser history — Application to send cell phone and communications allowed, but results of search of browser history excluded — Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.), s. 15.

A confrontation between two drivers in Brooklyn, New York resulted in one driver shooting the other. The shooter was driving a car registered to L. About nine hours after the shooting, L crossed the border from the United States into Canada driving the car that the shooter was driving. Canadian immigration authorities arrested L for an immigration violation and seized his cell phone and the vehicle. The United States submitted a request for Canadian authorities to search the vehicle and the phone. The Attorney General obtained a gathering order, a sending order and a search warrant under the Mutual Legal Assistance in Criminal Matters Act, resulting in the vehicle being sent to the United States and in Toronto Police conducting a forensic search of the phone. L alleged that his s. 8 rights under the Canadian Charter of Rights and Freedoms were violated in that police did not conduct a search of the phone within the time set out in the search warrant and that they exceeded the scope of the authority granted in the warrant. He further alleged that when he was arrested he was not informed of the reason as required by s. 10(a) of the Charter, nor was he informed of his right to retain and instruct counsel as required by s. 10(b). The Attorney General applied on behalf of the United States to send the phone and the results of the search to the United States for investigation.

Held, the application should be allowed in part. [page706]

The timing of the search of the phone did not violate s. 8 of the Charter. The search warrant authorized a constable to seize the phone from the Toronto Police evidence locker any day between April 9 and April 17. The constable seized the phone on April 16 and turned it over to the Tech Crimes Unit the same day. Forensic data extraction was completed on April 24. L argued that the forensic examination had to be completed by April 17, but neither the law nor the warrant required that. Accepting that argument would have amounted to setting up a constitutional requirement for search protocols in the warrant. It was unrealistic to expect the police to conduct a forensic examination in such a short time.

The authorities breached s. 8 of the Charter by exceeding the scope of the search set out in the warrant. The initial results of the forensic examination did not include the browser history, but the browser history was subsequently made available after a request by the constable who submitted the phone to the Tech Crimes Unit. The plain wording of the warrant limited the search to communications and to GPS data and as such the search of the web history clearly exceeded the scope of the warrant.

There was no breach of s. 10 of the Charter. The notes of the Canadian Border Services Officer who arrested L were consistent with his evidence that he told L why he was under arrest and informed him of his rights at the point of arrest. The officer was technically incorrect about the reason because he cited the wrong subsection of the Immigration and Refugee Protection Act, but functionally the provisions were identical in terms of the grounds required to either issue a warrant or effect a warrantless arrest.

The result of the Charter breach was not to dismiss the application entirely, but rather to limit the sending of the cell phone disclosure to the communications only and not send the browser history. The infringing conduct was in the middle of the seriousness scale. It was not trivial, but nor was it as intrusive as a search involving the violation of bodily integrity. It appeared that the constable who requested the browser history simply erred in his interpretation of the warrant. The impact on L's interests was low. The fruits of the violation were severable. The phone had relevant information to a murder investigation. To refuse to send the phone would amount to potentially depriving a foreign court of relevant evidence for a Charter violation committed by Toronto Police.

R. v. Nurse (2019), 145 O.R. (3d) 241, [2019] O.J. No. 1636, 2019 ONCA 260, 437 C.R.R. (2d) 217, 374 C.C.C. (3d) 181, 54 C.R. (7th) 75, revg [2014] O.J. No. 4932, 2014 ONSC 5989, 322 C.R.R. (2d) 262 (S.C.J.), apld

R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, 309 D.L.R. (4th) 1, 391 N.R. 1, J.E. 2009-1379, 253 O.A.C. 124, 245 C.C.C. (3d) 1, 66 C.R. (6th) 1, 193 C.R.R. (2d) 1, 82 M.V.R. (5th) 1, EYB 2009-161617, 2009 CCAN para. 10,053; R. v. Otto, [2019] O.J. No. 3386, 2019 ONSC 2514 (S.C.J.); United States of America v. Price (2007), 86 O.R. (3d) 762, [2007] O.J. No. 2673, 2007 ONCA 526, 226 O.A.C. 45, 225 C.C.C. (3d) 307, 160 C.R.R. (2d) 169, 75 W.C.B. (2d) 536, consd

R. v. Yabarow, [2019] O.J. No. 3359, 2019 ONSC 3669 (S.C.J.), distd

Other cases referred to

Belgium v. Suthanthiran, [2017] O.J. No. 2183, 2017 ONCA 343, 347 C.C.C. (3d) 120; Euro-Can-Am Trading Inc. v. Ontario (Attorney General), 1997 CanLII 1288 (ON CA), [1997] O.J. No. 2479, 101 O.A.C. 116, 116 C.C.C. (3d) 471, 45 C.R.R. (2d) 67, 35 W.C.B. (2d) 204 (C.A.); Mutual Legal Assistance in Criminal Matters Act (Re), 1999 CanLII 3787 (ON CA), [1999] O.J. No. 3292, 178 D.L.R. (4th) 91, 124 O.A.C. 24, 138 C.C.C. (3d) 321, 27 C.R. (5th) 316, [page707] 90 A.C.W.S. (3d) 879, 43 W.C.B. (2d) 325 (C.A.); R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, [1994] S.C.J. No. 74, 118 D.L.R. (4th) 83, 172 N.R. 1, J.E. 94-1528, 74 O.A.C. 161, 92 C.C.C. (3d) 289, 33 C.R. (4th) 1, 23 C.R.R. (2d) 193, 6 M.V.R. (3d) 1, 24 W.C.B. (2d) 539, 1994 CCAN para. 10,035; R. v. Barwell, [2013] O.J. No. 3743, 108 W.C.B. (2d) 670, 2013 CarswellOnt 10608 (C.J.); R. v. Budd, 2000 CanLII 17014 (ON CA), [2000] O.J. No. 4649, 138 O.A.C. 116, 150 C.C.C. (3d) 108, 48 W.C.B. (2d) 341 (C.A.); R. v. Canary, [2018] O.J. No. 1786, 2018 ONCA 304, 146 W.C.B. (2d) 460, 361 C.C.C. (3d) 63; R. v. Nguyen, [2008] O.J. No. 219, 2008 ONCA 49, 232 O.A.C. 289, 55 C.R. (6th) 82, 166 C.R.R. (2d) 207, 231 C.C.C. (3d) 541, 78 W.C.B. (2d) 209; R. v. Noel, [2019] O.J. No. 5612, 2019 ONCA 860; R. v. Nurse, [2014] O.J. No. 5004, 2014 ONSC 1779 (S.C.J.); R. v. Rover (2018), 143 O.R. (3d) 135, [2018] O.J. No. 4646, 2018 ONCA 745, 419 C.R.R. (2d) 100, 150 W.C.B. (2d) 134, 366 C.C.C. (3d) 103, 49 C.R. (7th) 102; R. v. Taylor, [2014] 2 S.C.R. 495, [2014] S.C.J. No. 50, 2014 SCC 50, 374 D.L.R. (4th) 64, 460 N.R. 101, [2014] 8 W.W.R. 419, J.E. 2014-1291, 98 Alta. L.R. (5th) 40, 572 A.R. 81, 311 C.C.C. (3d) 285, 12 C.R. (7th) 1, 314 C.R.R. (2d) 307, 62 M.V.R. (6th) 1, 114 W.C.B. (2d) 607, EYB 2014-239894, 2014 CCAN para. 10,068, 2014EXP-2257; R. v. Vu, [2013] 3 S.C.R. 657, [2013] S.C.J. No. 60, 2013 SCC 60, 365 D.L.R. (4th) 601, 451 N.R. 199, J.E. 2013-1939, 345 B.C.A.C. 155, 302 C.C.C. (3d) 427, 6 C.R. (7th) 1, 110 W.C.B. (2d) 109, EYB 2013-228909, 2013 CCAN para. 10,071, 2013EXP-3567; United Kingdom v. Ramsden, 1996 CanLII 1527 (ON CA), [1996] O.J. No. 2716, 92 O.A.C. 270, 41 C.B.R. (3d) 124, 108 C.C.C. (3d) 289, 31 W.C.B. (2d) 538 (C.A.)

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 8, 10(a), (b), 24(2)

Criminal Code, R.S.C. 1985, c. C-46, ss. 487(1) [as am.], 487.014 [as am.], 489.1 [as am.]

Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 55(1) [as am.], (2)

Mutual Legal Assistance In Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) [as am.], ss. 10 [as am.], 11(2), 12 [as am.], (1), (2), 14, (1), (2), 15(1), (a), (i), 17(2), 18 [as am.], (1), (2) [as am.], 19(1), (2), 20(1), (2) (c)

APPLICATION by the Attorney General to send a cell phone and results of a forensic search to the United States.

Adrienne Rice, for Attorney General of Canada.

Michael Little, for Rohan Levy.

[1] GOLDSTEIN J.: — Canadian immigration authorities arrested Rohan Levy on March 31, 2020. Mr. Levy was in Canada illegally. He was an alleged fugitive from justice from the United States. During the arrest, the authorities seized his cell phone. The authorities subsequently obtained a search warrant and conducted a forensic search of the phone. The Attorney General of Canada applies on behalf of the United States to send the phone and the results of the search to the United States for their investigation.

[2] Mr. Levy says that the authorities violated several of his rights under the Canadian Charter of Rights and Freedoms. He says the authorities failed to execute the warrant in accordance with its terms. He says that they exceeded the scope of the [page708] warrant. The authorities were permitted to search for "communications" on the phone but not the phone's web browser history. They searched the web browser history anyway. The authorities therefore violated s. 8 of the Charter. He also says that the authorities violated his rights under s. 10(a) and (b) of the Charter. As a result, he says that I should dismiss the application.

[3] I agree that the Canadian authorities did fail to execute the warrant in accordance with its terms and violated s. 8 of the Charter by searching the web browser history. I find, however, that they did not violate Mr. Levy's rights under s. 10(a) and (b). Should I still order that the cell phone and the results of the forensic search be sent to the United States? In my view, I should send the phone and the result of the search for communications, but not the search of the web browser history. For the reasons that follow, the application is granted in part.

Background

[4] On March 13, 2020, at around 4:50 p.m., someone shot Dean Lawrence in Brooklyn, New York, while he sat in his car. The American authorities allege Mr. Levy was the shooter. They alleged that he shot Mr. Lawrence during a "road rage" incident.

[5] Mr. Lawrence was in his car in the area of Flatbush Avenue and Bergen Street, in Brooklyn, New York. Witnesses described -- and video surveillance appeared to show -- a confrontation between Mr. Lawrence and the driver of a 2010 white Acura TLX with New Jersey licence plates of Y82FAB. A witness described seeing the driver of the Acura get out of his car, walk over to Mr. Lawrence's car and fire multiple gunshots through the windshield. Mr. Lawrence died the next day.

[6] The Acura was registered to Mr. Levy. The New York Police Department (which I will refer to as the NYPD) obtained Mr. Levy's photograph and fingerprints from an unrelated job application. They compiled a photo array that included Mr. Levy's photograph. The NYPD showed the photo array to the witness who observed the shooting. The witness identified Mr. Levy as the shooter.

[7] On March 14, 2020, at around 2:22 a.m., Mr. Levy crossed the border into Canada in the Thousand Islands area between Ontario and New York State. He was driving the same white Acura with the same New Jersey plates that the shooter had been driving.

[8] Mr. Levy's father lives in Toronto. The Toronto Police Fugitive Squad and the Canada Border Services Agency conducted surveillance on Mr. Levy's father's house. They observed the Acura parked outside. On March 31, 2020, CBSA Officer [page709] Hernandez arrested Mr. Levy for an immigration violation while Mr. Levy was sitting in the Acura.

[9] The police seized white Acura. The police also seized Mr. Levy's cell phone. Constable Dean of the Toronto Police filed a Report To Justice pursuant to s. 489.1 of the Criminal Code, R.S.C. 1985, c. C-46. The Report To Justice indicated that the police had seized the cell phone and the Acura during the course of the arrest. A justice of the peace authorized the retention of the items.

[10] On April 2, 2020, two days after Mr. Levy's arrest, the United States submitted a request to Canada pursuant to the Canada-United States Treaty on Mutual Legal Assistance. The request was for Canadian authorities to

. . . conduct a search of the vehicle and a cellphone seized from Levy on or about March 30, 2020, and thereafter provide any written reports or related evidence, during the inspection of a vehicle and a cellphone which are presently located at Toronto Police 54 Division. Cranfield Road, East York. Ontario, M4B 3H6 Canada.

[11] The United States updated the request on April 6, 2020, to request that the Acura itself be sent.

[12] On April 8, 2020, the Attorney General submitted an ex parte application to this court for an evidence gathering order, a sending order and a search warrant under the Mutual Legal Assistance In Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) (which I will refer to as the "Act"). I was the judge who considered the application. I granted the orders and the search warrant on April 14, 2020. Pursuant to the combined evidence gathering order and sending order, the Acura was sent to the United States. Pursuant to the search warrant, Toronto Police conducted a forensic search of the phone.

[13] Mr. Levy is a Jamaican citizen with residence status in the U.S., which is where Canadian authorities deported him. The American authorities took him to New York City. He police subjected him to a lineup but he was not identified. The NYPD then released him. The NYPD has not charged him with the murder of Dean Lawrence. Mr. Levy remains free in New York. Ms. Rice, counsel for the Attorney General, informed me during the hearing that the NYPD are still investigating the killing.

Issues

[14] Mr. Little, counsel for Mr. Levy, alleges that the Canadian authorities violated Mr. Levy's rights under s. 8 of the Charter in two ways: first, the Toronto Police did not conduct a search of the phone within the time set out in the search warrant; and second, they exceeded the scope of the authority granted in the [page710] warrant. Mr. Little also argues that when Officer Hernandez arrested Mr. Levy he violated Mr. Levy's right to be informed of the reason as required by s. 10(a) of the Charter; and that Officer Hernandez did not inform Mr. Levy of his right to retain and instruct counsel as required by s. 10(b). Mr. Little acknowledges that I have the discretion to send the phone and the search results notwithstanding the violations. He argues, however, that there is a sufficient nexus between the violations and the sending of the phone that I ought to exercise my discretion against doing so.

[15] There are four issues that I must deal with:

-- First, did the authorities fail to carry out the forensic search of the phone within the prescribed time period?

-- Second, did the authorities exceed the scope of the warrant?

-- Third, did the authorities comply with s. 10(a) and (b) of the Charter?

-- Fourth, should I exercise my discretion against sending the phone and the results of the web browser search?

Analysis

[16] Many crimes are committed in one country but evidence, or proceeds of the crime, or a suspect is found in different country. Canada has the obligation, by treaty and convention, to assist other countries in the detection, investigation and suppression of criminal activity. Our international obligations are implemented through the Act. The Act has two objectives: first, to fulfill our international obligations to assist in the investigation and suppression of crime by assisting other countries; and second, to ensure that other countries will assist us: Belgium v. Suthanthiran, [2017] O.J. No. 2183, 2017 ONCA 343, at para. 61.

[17] The treaty system and the Act create a comprehensive scheme for foreign law enforcement to obtain evidence in Canada. Requests for assistance have three stages: the first, or diplomatic stage, involves a request from the central authority of a treaty partner (or non-treaty partner under an administrative arrangement) to the Minister of Justice, which is our central authority. The Minister acts as both incoming and outgoing gatekeeper. The Minister's role reflects the political nature of the relationship between sovereign countries: Mutual Legal Assistance in Criminal Matters Act (Re), 1999 CanLII 3787 (ON CA), [1999] O.J. No. 3292, 138 C.C.C. (3d) 321 (C.A.). [page711]

[18] In the second stage, requests for orders either to search or gather evidence are actioned by the local competent authority, in this case the Attorney General of Canada. A Superior Court judge may issue the order if he or she is satisfied that the statutory pre-conditions are met (unlike the extradition context, there is no requirement for dual criminality in mutual legal assistance: Belgium v. Suthanthiran, at paras. 45-48, 74, 94). At the third stage, after execution, the same or a different Superior Court judge ensures that the order has been properly executed before ordering that the evidence be send abroad.

[19] There are two main investigative tools available to foreign authorities: through a search warrant (s. 12 of the Act); or through an evidence-gathering order (s. 18 of the Act). These investigative tools are roughly equivalent to a search warrant and a production order under the Criminal Code: ss. 487(1), 487.014. Indeed, the Code applies to a search or seizure under the Act, with such modifications as the circumstances require (s. 10 of the Act). Both a search warrant and an evidence-gathering order must be applied for ex parte: (ss. 11(2) and 17(2) of the Act).

[20] A Superior Court judge may issue a search warrant where he or she is satisfied that there are reasonable grounds to believe that an offence has been committed; that evidence of the offence or information that may reveal the whereabouts of a suspect will be found in a building, receptacle or place; and that it would not be appropriate to make an evidence-gathering order under s. 18(1) of the Act: s. 12(1) of the Act. The judge may impose conditions on the execution of the warrant: s. 12(2) of the Act.

[21] A superior court judge may issue an evidence-gathering order where he or she is satisfied that an offence has been committed; and that evidence of the offence or information that may reveal the whereabouts of a suspect will be found in Canada: s. 18(1) of the Act. The order must set out the manner by which the evidence is to be obtained. The order may require a person to attend and answer questions; and/or require a person to make a copy of the evidence and supply it to a person designated by the order: s. 18(2) of the Act.

[22] Both the search warrant and the evidence gathering order require the person who executed the search warrant or evidence gathering order to file a report with the court and send a copy to the Minister of Justice: ss. 14(1), (2), 19(1), (2) of the Act.

[23] I interpret the Act to read that search warrants under s. 12(1) are generally used to seize physical items or to seize evidence from the target of the investigation. I would further interpret the Act to read that evidence gathering orders are usually [page712] used to obtain documents or data from a third party: s. 18(1). The Criminal Code forbids the use of a production order to obtain documents or data directly from the target of the investigation; in contrast, the Act does not specifically prohibit using s. 18(1) to obtain documents or data from the target, although doing so would obviously raise Charter concerns.

[24] Once the evidence is gathered or seized, a superior court judge must determine whether to send it to the foreign state. I will have more to say about s. 15(1) of the Act later in these reasons, but suffice to say that a judge must hold a be a hearing to determine whether to send the evidence. The Minister, competent authority, the person from whom the evidence was seized and any person claiming an interest in the evidence, have the right to make submissions -- implying a right to be present at the hearing, although there are no notice provisions in the Act. The target of the foreign criminal proceeding does not automatically have standing under the Act: United Kingdom v. Ramsden, 1996 CanLII 1527 (ON CA), [1996] O.J. No. 2716, 108 C.C.C. (3d) 289 (C.A.), at paras. 11, 39, 41 and 60.

[25] In contrast, s. 20(1) of the Act on its face does not require a hearing. Nonetheless, a judge considering a request under s. 20(1) may consider imposing terms and conditions, including terms and conditions with respect to the interests of third parties (see s. 20(2)(c) of the Act). When considering terms and conditions, the court must also consider the need to give effect to the request: Mutual Legal Assistance, at para. 19.

[26] I issued both the evidence-gathering order and the search warrant in this case. I am permitted to review my own order: R. v. Budd, 2000 CanLII 17014 (ON CA), [2000] O.J. No. 4649, 150 C.C.C. (3d) 108 (C.A.), at para. 14.

[27] I turn now to the issues.

(a) Did the authorities fail to carry out the forensic search of the phone within the proscribed time period?

[28] The search warrant authorized Constable Dean to seize the phone from the Toronto Police evidence locker at 54 Division any day between April 9 and April 17, 2020, between 9:00 a.m. and 5:00 p.m. He was authorized to send the phone "to a facility of the Toronto Police Service for the purpose of undertaking a forensic data extraction of the data" on the phone.

[29] Constable Dean seized the phone on April 16, 2020. He turned it over to the Toronto Police Tech Crimes Unit that same day. Tech Crimes completed the extraction of "communications" from the phone on April 24, 2020. [page713]

[30] Mr. Little argues that by the terms of the warrant the police were authorized to seize the phone and complete the forensic examination by 5:00 p.m. on April 17, 2020. By failing to do so, they violated s. 8 of the Charter and failed to execute the warrant according to its terms.

[31] I cannot agree. The cases and the scheme of the Criminal Code itself provide a complete answer to that argument. If I were to accept that argument it would amount to setting up a constitutional requirement for search protocols in the warrant. That is something that the Supreme Court of Canada has rejected: R. v. Vu, [2013] 3 S.C.R. 657, [2013] S.C.J. No. 60, 2013 SCC 60, at paras. 25 and 59.

Virtually the same argument was made to Paciocco J. (as he then was) in R. v. Barwell, [2013] O.J. No. 3743, 2013 CarswellOnt 10608 (C.J.) and Coroza J. (as he then was) in R. v. Nurse, [2014] O.J. No. 5004, 2014 ONSC 1779 (S.C.J.). Both justices now sit on the Ontario Court of Appeal.

[32] In Barwell, an employee of a computer store noticed child pornography on Barwell's computer. The store contacted the police. The police seized the hard drives and then obtained a warrant to search them. The warrant authorized the police to obtain the drives on a particular day. An officer seized the drives from a police locker and turned them over to another officer to conduct a forensic examination. That officer did not complete the forensic examination on the day of the seizure. The accused argued that the police were required to complete the examination on the day set out on the warrant.

[33] Justice Paciocco refused to accept that argument. He noted that it would be unrealistic to expect a forensic examination of a computer or other device to be completed in such a short time. Moreover, the scheme of the retention provisions of the Criminal Code themselves provided the legal basis to conduct the search. The retention provisions require that an officer make a report to justice (s. 489.1). Broadly, a justice is required to order the seized item returned to the lawful owner unless the officer or prosecutor satisfies him or her that retention is required for the purposes of investigation. As Paciocco J. put it [at para. 18]: ". . . the search warrant provision deals with the time required for the initial search for an item and with its seizure. The detention provisions address how long the item can be kept for forensic analysis . . .".

[34] In Nurse, the police seized a phone incident to arrest. They retained it in their evidence locker. They then obtained a warrant to enter the locker and seize the phone. The police force, the OPP, did not have the technical expertise to unlock [page714] the phone. The OPP turned to the RCMP for technical assistance. The RCMP was able to unlock the phone. The RCMP then provided the data to the OPP. About a year later, substantially improved analytical software was available to the police. The police conducted a second analysis but did not obtain a fresh warrant.

[35] Justice Coroza rejected an argument that the police were limited to conducting the forensic search to the day of the seizure. He adopted the reasoning in Barwell. He also rejected the argument that the police were required to obtain a fresh warrant a year later, when improved software was available. On appeal, Trotter J.A. agreed: R. v. Nurse (2019), 145 O.R. (3d) 241, [2019] O.J. No. 1636, 2019 ONCA 260. Trotter J.A. found that a second forensic examination a year later did not involve a further invasion of privacy. There was nothing in the warrant itself that prevented a further inspection. He stated, at para. 137:

The appellants do not contend that it was improper for the police to image the data on their devices. Once this was done, there was no restriction, on the face of the warrant or at law, as to when or how often the police were permitted to examine or inspect this lawfully seized and copied data.

[36] In this case, Constable Dean seized the phone on a day set out in the warrant. He turned the phone over to Tech Crimes. It would be completely unrealistic to assume that the police could conduct a forensic examination in such a short period of time. Neither the law nor the warrant required it.

[37] If there had been a failure to report to justice -- which ensures continued judicial supervision of the retention of the seized items for the purpose of an investigation -- that may well have constituted a Charter breach and invalidated the search: R. v. Canary, [2018] O.J. No. 1786, 2018 ONCA 304, at paras. 45-46. That is not what happened here -- Constable Dean filed a report under s. 489.1 of the Criminal Code for the seizure incident to arrest of both the phone and the car. He also filed an extensive report to judge regarding the phone pursuant to s. 14 of the Act.

[38] I therefore find that the Toronto Police executed the warrant in accordance with its terms when they conducted the forensic examination beyond April 17, 2020. They did not violate s. 8 of the Charter.

(b) Did the authorities exceed the scope of the search authority set out in the warrant?

[39] The search warrant authorized the police to search and examine "the data" in Mr. Levy's cell phone. On April 24, 2020, [page715] Tech Crimes completed the forensic examination of the cell phone. Tech Crimes turned over a CD with the results to Constable Dean. Constable Dean reviewed the results and noted that the material did not include the internet browser history. He further noted that he would follow up with Tech Crimes. On May 4, 2020, Tech Crimes provided him with a further report that include a web browsing history.

[40] Mr. Little argues that the search of the web history was outside the scope of the warrant. By extracting the web history, the police did not execute the warrant in accordance with its terms. That search, therefore, violated s. 8 of the Charter.

[41] Ms. Rice, for the Attorney General, argues that the search warrant authorized the police to extract Mr. Levy's web browsing history. She argues that there were grounds to search for the web browsing history. Furthermore, the web browsing history shows that Mr. Levy was searching for information about the status of the investigation: clear evidence of post-offence conduct. Ms. Rice further argues that the combined effect of the two paragraphs of the warrant permitted a search for any evidence of the offence within the specified time period.

[42] With respect, I disagree with the Attorney General. The search of the web history clearly exceeded the scope of the warrant. The plain wording of the warrant limited the search to "communications" and GPS data (which is not at issue here):

THIS WARRANT FURTHER AUTHORIZES Detective Constable Jesse Dean, or his designate, to search and examine the data in LEVY's cellphone or its forensic Image. The search of the data shall be limited to seeking evidence relevant to the Offences, specifically any communications which may relate to the homicide on March 13, 2020, including any outgoing phone calls, text messages, emails or other communications, and any data from any GPS technology installed on LEVY's cellphone to assist in tracking the location of the cellphone[.]

[43] Ms. Rice further argues that the next paragraph of the warrant gave the police the authority to search the browser web history:

THIS WARRANT FURTHER AUTHORIZES that the search of the data is limited to relevant data of the Offences within the period of March 13, 2020 to March 31. 2020 with the exception of the search for passwords that may facilitate access to relevant data, which search is not limited by this date range[.]

[44] Ms. Rice specifically points to the words "relevant data of the offences" as expanding the scope of the warrant to include a search of the web browser history. I cannot agree. That paragraph is a limiting provision -- it limits the search to particular dates. It cannot be read separately from the earlier paragraph, which limits the search to communications. [page716]

[45] Ms. Rice relies on the decision of Dambrot J. in R. v. Yabarow, [2019] O.J. No. 3359, 2019 ONSC 3669 (S.C.J.), at para. 27. In that case, the police had extracted a phone's web browser history, as they did in this case. Defense counsel argued that there was no basis upon which the issuing justice could have authorized the search. Justice Dambrot disagreed and stated:

Given that Mr. Yabarow had expressed a desire to flee, an examination of his internet searches in the relevant time frame would logically reveal information about the places he was considering fleeing to and the means by which he was considering his flight. Flight is after the fact conduct that tends to support an inference of guilt.

[46] I could not agree more with Dambrot J.'s conclusion as a general matter, but the issue in Yabarow was different. The issue in that case was whether there were grounds in the information to obtain to support the search of a web browser history. The warrant specifically authorized a search of the web browser history. Here, the United States did not ask the Canadian authorities to search for the web browser history; the Attorney General did not request the search of the web browser history in the search warrant application; and the search warrant did not mention the web browser history. That is very different from the Yabarow case.

[47] The request from the United States and the affidavit in support of the application for the warrant in this court did not provide any grounds upon which the web browser history could be sought. Constable Dean stated, at para. 39 of his affidavit:

American authorities . . . are seeking communications after the homicide, including any outgoing phone calls, text messages, emails or other communications[.]

[48] Constable Dean then set out (in paras. 41 and 42) examples of Mr. Levy's communications that provided grounds to believe that communications would be found on his phone. He did not set out grounds to search the web browser history.

[49] With respect, if I were to accept the argument of the Attorney General, it would amount to "a licence to scour the devices indiscriminately": R. v. Vu, at para. 61.

[50] This issue was also dealt with by Coroza J. in a different ruling in the Nurse case: see R. v. Nurse, [2014] O.J. No. 4932, 2014 ONSC 5989 (S.C.J.). The initial warrant authorized a search limited to correspondence and communications. The second search of the phone with the better software resulted in a "data dump" that extracted all of the contents of the phone. The forensic analysts were capable of taking extracting the correspondence and communications from the "data dump" and [page717] putting only that material in a report for the investigating officers. The analysts were also capable of using parameters that would have limited the search. Instead, the analysts simply searched for and handed over everything.

[51] Justice Coroza found that the search was overbroad. He stated, at paras. 34 and 36:

I am of the view that, in this case, communications and correspondence would have been limited to: BBM chats, SMS (texts), emails, notes, and call logs. Therefore, the reporting back to the OPP on items such as web browsing history, photographs, and cookies was not reasonable, and was not consistent with s. 8 of the Charter.

. . . while they were authorized to search for data on the devices, it was important for the police to determine what could be done technologically to ensure that they were complying with s.8 of the Charter.

[52] The accused did not challenge this ruling on appeal. I agree with Coroza J.'s conclusion and apply it here.

[53] I also agree with the observation of DiLuca J. in R. v. Otto, [2019] O.J. No. 3386, 2019 ONSC 2514 (S.C.J.), at para. 120:

A search for evidence that can take any form in an electronic device may result in an indiscriminate scouring of the device sufficient to warrant constitutional scrutiny. As such, it will generally be safest if the warrant is restricted to certain types or categories of files and backed by sufficient grounds, and that the search be conducted in an organized and focused fashion.

[54] The warrant was so restricted in this case; while the scouring of the phone was not "indiscriminate" -- it was only the search of the web history that is at issue -- it certainly warrants constitutional scrutiny. In my view, the warrant was not executed in accordance with its terms and the search of the web browser history violated s. 8 of the Charter.

(c) Did the authorities comply with [s. 10(a)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) and (b) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[55] Mr. Little, for Mr. Levy makes the following argument: Officer Hernandez failed to promptly inform Mr. Levy of the reason for the arrest as required by s. 10(a) of the Charter. Officer Hernandez also failed to inform Mr. Levy of his right to counsel under s. 10(b). I should be skeptical about Officer Hernandez's evidence. Constable Dean's notes do not indicate that Officer Hernandez provided Mr. Levy with his rights upon arrest. Even if I accept that Officer Hernandez provided the right to counsel at the roadside, he failed to implement that right at the station. There was a close temporal connection [page718] between this serious violation and the obtaining of the evidence; no causal connection is required to engage the exclusionary rules: R. v. Rover (2018), 143 O.R. (3d) 135, [2018] O.J. No. 4646, 2018 ONCA 745, at para. 35. As a remedy, I should exercise my discretion against sending the evidence to the United States. Exclusion of evidence is warranted for clear violations of rules established to govern state conduct: R. v. Noel, [2019] O.J. No. 5612, 2019 ONCA 860, at para. 34.

[56] With respect, I must disagree. I find as a fact that Officer Hernandez provided Mr. Levy with the reason for the arrest (although he was technically incorrect about the reason) and he also provided Mr. Levy with his right to counsel. I find that Mr. Levy did not ask to be put in touch with a lawyer. There was, therefore, no violation of the informational or implementational aspect of s. 10(b).

[57] The obligation of the police under s. 10(a) is simple but important: to inform the person of the substance of the reason he or she is under arrest or detention. No particular term or technical formulation is required: R. v. Nguyen, [2008] O.J. No. 219, 2008 ONCA 49, at para. 16. A person needs to know whether he or she is actually required to submit to the arrest or detention. A person also needs to know the reason for the arrest so that he or she can obtain meaningful legal advice. Sections 10(a) and (b) of the Charter are, therefore, linked.

[58] The police have three s. 10(b) Charter obligations to a person under arrest or detention:

-- to inform him or her of his right to retain and instruct counsel, and of the availability of legal aid and duty counsel (the informational component of the right);

-- if the person under arrest or detention wishes to exercise his or her right to counsel, to provide him or her with a reasonable opportunity to exercise the right, except under urgent or dangerous circumstances (the implementational component of the right); and

-- to refrain from eliciting evidence from the person under arrest or detention until he or she has had a reasonable opportunity to exercise that right.

[59] See R. v. Taylor, [2014] 2 S.C.R. 495, [2014] S.C.J. No. 50, 2014 SCC 50, at para. 23; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, [1994] S.C.J. No. 74, at para. 18.

[60] On March 31, 2020, the authorities carried out the arrest. Mr. Levy was in his white Acura. Constable Dean broke the driver's side window and apprehended Mr. Levy. Officer [page719] Hernandez arrested Mr. Levy pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (which I will refer to as "IRPA"). He testified that he told Mr. Levy that he was under arrest pursuant to s. 55(1) of IRPA and provided Mr. Levy with his rights under the Vienna Convention and the Charter. Section 55(1) of IRPA provides for an arrest with a warrant. Officer Hernandez had not seen a warrant but he believed that one had been issued.

[61] Officer Hernandez's notes indicate that at 12:45 he arrested Mr. Levy. The notes indicate that at that time:

55(1) conducted

Vienna & Charter provided

[62] Officer Hernandez testified that "55(1)" refers to the warranted arrest provision of IRPA. He agreed in cross-examination that there is no specific note of the words that he actually used or Mr. Levy's response. He has conducted thousands of arrests and he only makes a note of a response where there is something out of the ordinary. He said he had a specific recollection of telling Mr. Levy he was under arrest under s. 55(1) of IRPA.

[63] Once Mr. Levy was under arrest, the Fugitive Squad transported him to the CBSA office in Mississauga. According to the Notice of Arrest,

At 12:45 hours his warrant was executed and he was transported to the Enforcement and Intelligence Operations Division Greater Toronto Area Region (BIOD-GTAR) where his prints, photos and interview was conducted. He was provided with his Vienna and Charter Rights.

[64] Mr. Little suggested to Officer Hernandez that the Notice of Arrest makes it clear that he did not provide his Charter rights to Mr. Levy upon arrest, but rather at the station at least 30 minutes later. Officer Hernandez disagreed. He testified that he provided Mr. Levy with his Vienna Convention and Charter rights upon arrest, and then again at the station.

[65] Officer Hernandez explained that the Vienna Convention provides that a foreign national is to be informed that has the right to have his country's representatives informed of the arrest, and of his right to have consular assistance. He testified that Mr. Levy did not want him to inform either the Jamaican or United States consulates that he was in custody. He testified that most people do not want their consulates informed. He also testified that Mr. Levy did not request an opportunity to speak to a lawyer. He would have facilitated that had he been asked.

[66] Mr. Levy filed an affidavit. In his affidavit he swore that Officer Hernandez did not tell him why he was under arrest or [page720] provide him with his right to counsel. He further swore that the first time he was given his rights was at what he believed to be a police station. He was given his "Miranda" rights by a NYPD detective. Officer Hernandez confirmed that a NYPD detective was present at the office.

[67] Mr. Levy also testified. He stated that when he was first arrested nobody told him the reason or provided him with his rights to counsel. At the station, an immigration officer gave him some paperwork indicating that he faced a charge of murder in New York. He testified that the immigration officer -- likely Officer Hernandez -- said "I'm sure you know why you're here". Mr. Levy testified that he said: "not really". He was not provided with his rights to counsel at the station. He was given a paper to sign about his home country, Jamaica, and asked if he wanted assistance. He said he did not.

[68] I pause to note that Mr. Levy undoubtedly knew exactly why he was under arrest. He may have said "not really" but that was clearly untrue. The communications retrieved from his cell phone make it clear that he knew he was under investigation for a shooting: at least one of the messages from a romantic partner asked him whether it was really true that he killed someone over a parking spot. (The Google queries extracted from his phone also make it very clear that he knew he was under investigation -- although I do not in any way rely on them.)

[69] I accept that there were some problems with Officer Hernandez's evidence. The fact that Mr. Levy knew why he was under arrest does not necessarily mean that Officer Hernandez provided him with that information or his Charter rights. It is also problematic that Officer Hernandez mistakenly believed that there was a warrant in existence for Mr. Levy's arrest under s. 55(1) of IRPA when in fact the arrest occurred under s. 55(2). Functionally, however, the two subsections are identical in terms of the grounds required to either issue a warrant or effect a warrantless arrest.

[70] When I examine all of the evidence, I find that Officer Hernandez complied with s. 10(a) and (b). His notes are consistent with his evidence that he told Mr. Levy the reason why he was under arrest and provided him with his rights at the point of arrest. He did make a specific note that he provided Mr. Levy with his rights under the Charter and the Vienna convention. I do not accept that the Notice of Arrest undermines Officer Hernandez's evidence on that point -- he explained the reason for the Notice of Arrest and the contents. His explanation is not inherently unbelievable or unreliable. [page721]

[71] Mr. Levy's evidence confirmed Officer Hernandez's testimony in at least one important respect: they both agree that Mr. Levy was asked if he wanted consular assistance and that he said that he did not. I infer that it is highly unlikely that Officer Hernandez provided Mr. Levy with his rights to consular access under the Vienna Convention but somehow failed to comply with the informational component of s. 10(b) of the Charter. I think it would be speculative to infer that Mr. Levy did not want to speak to a lawyer because he did not want consular services, and I do not make that finding. I do infer, however, that Mr. Levy was aware that he could speak to a lawyer.

[72] There is also no evidence that Officer Hernandez refused a request for a lawyer. Moreover, Mr. Levy agrees that he was provided with his "Miranda" rights by a New York City police officer. Mr. Levy did not suggest that learning of his "Miranda" rights caused him to ask for a lawyer. I accept Officer Hernandez's evidence that Mr. Levy did not ask to speak to a lawyer. There was, therefore, no breach of the implementational component of s. 10(b) of the Charter. I obviously, therefore, do not need to consider the impact of s. 10(a) or (b) Charter breaches.

(d) Should I exercise my discretion against sending the phone and the results of the web browser search?

[73] Mr. Little argues that the Attorney General's application should fail because the warrant was not executed according to its terms and because of the serious Charter violations committed by the Canadian authorities. I should order that the phone be returned to Mr. Levy pursuant to s. 15(1)(a)(i) of the Act. In the alternative, if I agree to send the phone to the United States, I should limit the sending of the cell phone disclosure to the communications but not the web search history.

[74] I respectfully disagree that I should exercise my discretion against sending the phone. I see no reason, however, why I should send the web browser history. I decline to make that order.

[75] A reviewing judge under s. 15(1)(a) of the Act must be satisfied that the warrant was executed in accordance with its terms; and that there is no reason why the order should not be made. The reviewing judge has a discretion to review all relevant factors: Euro-Can-Am Trading Inc. v. Ontario (Attorney General), 1997 CanLII 1288 (ON CA), [1997] O.J. No 2479, 116 C.C.C. (3d) 471 (C.A.), at para. 8.

[76] The failure of the authorities to execute the warrant in accordance with its terms does not preclude the sending of evidence. Rather, the role of the judge on a hearing under s. 15(1)(a) of the Act is akin to that of a judge considering the admissibility of evidence under s. 24(2) of the Charter: United [page722] States of America v. Price (2007), 86 O.R. (3d) 762, [2007] O.J. No. 2673, 2007 ONCA 526, at paras. 15-17, 23; R. v. Budd, at para. 26.

[77] In Price, the RCMP executed a search warrant in Toronto at the request of the United States. The police seized some 20 boxes of documents when only about 1 1/2 boxes were relevant. The sending judge found that the terms of the warrant were overly broad and that an equivalent domestic warrant would have been quashed. Nonetheless, the judge exercised his discretion in favour of sending the evidence to the United States. On appeal, Sharpe J.A. found that there was no rule that the failure by the police to execute the warrant in accordance with its terms automatically resulted in a refusal of a sending order. Sharpe J.A. stated, at para. 24:

The concern of a trial judge is with the use of the evidence at the trial. The validity of the warrant is a relevant factor, but there is no automatic exclusion of evidence obtained pursuant to an invalid search warrant; the issue falls to be resolved under the broad discretion of the trial judge. The role performed by a judge conducting a hearing under s. 24(2) of the Charter is not precisely congruent to the role of a judge under s. 15. The matter is still at the investigative stage and the s. 15 judge is not in a position to assess the impugned evidence in terms of its importance or impact on the fairness of the trial. However, it remains that just as at trial, the central focus and concern on a s. 15 review is on the use of the evidence against the respondent by the requesting state, rather than the narrower issue of the validity of the warrant and whether or not improperly seized evidence ought to be returned to the respondent.

[Emphasis in original]

[78] I interpret Sharpe J.A.'s words to mean that I am not required to conduct the precise analysis mandated in R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32. A "Grant" analysis requires that I balance the various factors in order to determine whether admission of the evidence at a criminal trial would bring the administration of justice into disrepute. It is quite possible that under a Grant analysis I would not admit the web browsing history in a domestic criminal trial. That, however, is not precisely the issue here.

[79] In a s. 24(2) Grant analysis, a trial judge must first evaluate the seriousness of the Charter-infringing state conduct; second, the impact of the breach on the Charter-protected rights of the accused; and third, society's interest in the adjudication of the case on its merits. A Grant-type analysis requires that a judge on a s. 15(1) hearing balances the failure to execute the warrant in accordance with its terms against Canada's need to fulfill its international obligations. The judge "must ensure that the sending order strikes an appropriate balance between any [page723] state and individual interests engaged by the sending order": Belgium v. Suthanthiran, at para. 92.

[80] When I analyze the failure to execute the warrant in accordance with its terms, I think it is helpful to think about it in terms similar to that of the first and second Grant factors: the Charter-infringing state conduct and the impact on the Charter-protected rights of Mr. Levy. Society's interest in the adjudication on the merits is roughly equivalent to Canada's interest in meeting our international obligations, although the tenor of the cases at the appellate levels suggests that significant weight must be accorded to that interest.

[81] I find that the Charter-infringing state conduct was in the middle of the seriousness scale. It was not trivial; at the same time, was not as intrusive as a search involving the violation of bodily integrity. It is something of a mystery why Constable Dean assumed that the warrant authorized a search of the phone's browser history. It seems clear that the Tech Crimes unit examined the warrant and concluded that they could only search for communications. Constable Dean's notes, affidavits, and reports indicate that he otherwise properly complied with all of his duties. I can only conclude that he simply erred in his interpretation of the warrant. Although I would have thought that the language was clear, in fairness to him the Attorney General's position at this hearing was consistent with that interpretation. I note that the fruits of the violation are severable.

[82] I find that the impact on Mr. Levy's Charter-protected interests was low. Although Mr. Levy's privacy interest in the contents of the phone was high, if the American authorities had merely asked for the phone to be returned without a forensic search (which they did in a later request) then there would be no basis to oppose that request. The NYPD could then conduct their own forensic search.

[83] When I balance the failure of the police to execute the warrant in accordance with its terms with Canada's international obligations, I find that the phone should be sent. The phone has relevant information that may assist the United States in a murder investigation. To refuse to send the phone would amount to potentially depriving a foreign court of relevant evidence for a Charter violation committed by the Toronto Police. There is no need to send the results of the search of the web browser history. That is because the American authorities did not ask for it. The American authorities only requested communications.

[84] Accordingly, the Attorney General's application is granted in part. The phone and the results of the forensic search for [page724] communications will be sent to the United States. I ask that counsel for the Attorney General send a new draft order reflecting these reasons.

Application allowed in part.

End of Document