Court File and Parties

COURT FILE NO.: 17-R2037 DATE: 2021/02/19 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – JAHMYLE JOHNSON and KYLE BANCROFT Applicants

Counsel: John Semenoff for the Crown Leo Russomanno for Mr. Johnson Tobias Okada-Phillips for Mr. Bancroft

HEARD: January 4, 2021

Decision on Application to Exclude Evidence

Justice Sally Gomery:

[1] Jahmyle Johnson and Kyle Bancroft are jointly charged with an armed robbery, firearms offences and other offences in connection with a home invasion in Ottawa on August 22, 2016 (the “Carron home invasion”). Johnson is also charged with prohibited possession of a gun, theft of a motor vehicle, and breach of probation. The Crown alleges that Johnson and another person broke into Therese Carron’s house and robbed her at gunpoint. Its theory is that Bancroft planned the Carron home invasion and drove Johnson and the other perpetrator to Ms. Carron’s house.

[2] At the upcoming trial, the Crown’s evidence will include information obtained as the result of searches of a cellphone found on Johnson’s person when he was arrested for drug offences in April 2017.

[3] A first search of the cellphone was conducted by Detective Constable Brent Down, a police officer in Thunder Bay on May 11, 2017. Officer Down had arrested Johnson two weeks earlier while executing a warrant issued pursuant to the Controlled Drugs and Substances Act (S.C. 1996, c. 19) (“CDSA”). Johnson was charged with possession of cocaine and heroine for the purpose of trafficking and his cellphone was seized. Officer Down obtained a further CDSA search warrant on May 3, 2017 to examine the cellphone’s contents for evidence with respect to the ongoing drug investigation (the “CDSA search warrant”). While reviewing a PDF of all of the information downloaded from the cellphone (the “PDF”), he found a history of internet searches in relation to the Carron home invasion and a shooting in Barrie (the “Barrie shooting”). Officer Down contacted two police officers in other cities — Detective Constable Sarah Frith, in Barrie, and Detective Constable Chris Fahey, in Ottawa —and told them about the cellphone’s browser history. This prompted Officer Fahey to identify Johnson as a suspect in the Carron home invasion and to include his image in photo lineups. In August 2017, an individual named Carey St. Michael disclosed to police that he, his employer Bancroft, and two men he knew only as “Konvic” and “Juice” were involved in the home invasion. This led to the arrest of Bancroft and Johnson, the latter of whom St. Michael identified in a photo line up as “Konvic”.

[4] A second search was conducted by Officer Fahey on May 6, 2019. He obtained an electronic copy of the PDF from Officer Down in September 2017 and reviewed the web history section. In May 2019, prior to the preliminary inquiry in this case, Officer Fahey was prompted by Crown counsel to search the PDF for evidence of communications between Johnson and Bancroft. He found texts between Johnson and a cellphone apparently used by Bancroft, including a text sending St. Michael’s name and information to Johnson, and references to “Konvic”. It was only several months later that Officer Fahey obtained a search warrant for the cellphone and, when the chip inside proved to be too damaged for analysis, he got a further warrant to obtain the data generated in Owen Sound in May 2017.

[5] In this application, Johnson and Bancroft seek to exclude the evidence seized from Johnson’s cellphone by Officer Down on May 11, 2017 and by Officer Fahey on May 6, 2019. They contend that the searches violated Johnson and Bancroft’s rights under s. 8 of the Canadian Charter of Rights and Freedoms and that admission of the evidence would bring the administration of justice into disrepute under s. 24(2) of the Charter.

[6] The Crown takes the position that Officer Down’s review of the browser history on Johnson’s cellphone was authorized by the CDSA search warrant or that he discovered it in plain view on the PDF while executing that warrant, and that the sharing of the internet search history with Officer Fahey did not violate Johnson’s s. 8 rights. The Crown furthermore contends that Officer Fahey’s review of other information in the PDF did not require a further search warrant and did not violate either accuseds’ rights. If I find otherwise, however, the Crown argues that the evidence of both searches should be admitted pursuant to the test in R. v. Grant.

[7] To decide this application, I must consider four questions:

(i) What evidence may the police lawfully search while searching cellphone’s contents pursuant to a search warrant? (ii) Did Officer Down’s May 11, 2017 search violate Johnson’s s. 8 rights? (iii) Did Officer Fahey’s May 6, 2019 search violate Johnson and Bancroft’s s. 8 rights? (iv) If one or both of the searches were unlawfully conducted, should the evidence obtained through them be excluded?

(1) What evidence may the police lawfully search and seize while searching a cellphone pursuant to a search warrant?

[8] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. A search will be reasonable “if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable”. R. v. Collins, [1987] 1 SCR 265, at para. 23.

[9] A search warrant may be issued by virtue of s. 11 of the CDSA. Subsection 11(1)(d) provides that, where a justice is satisfied that there are reasonable grounds to believe that “anything that will afford evidence in respect of an offence under this Act or an offence, in whole in part in relation to a contravention of this Act … is in a place”, they may “ issue a warrant authorizing a peace officer, at any time, to search the place for any such … thing and to seize it”.

[10] Section 11 permits an officer conducting a search pursuant to a CDSA warrant to seize evidence not mentioned in the warrant in certain circumstances. Subsection 11(6)(d) allows an officer to seize “anything that the peace officer believes on reasonable grounds will afford evidence in respect of an offence under this Act”. Section 11(8) further broadens this power. It provides that an officer who executes a CDSA warrant “may seize, in addition to the things mentioned in the warrant and in subsection (6), any thing that the peace officer believes on reasonable grounds has been obtained by or used in the commission of an offence or that will afford evidence in respect of an offence”.

[11] Section 11 of the CDSA is consistent with s. 489(1) of the Criminal Code, which likewise provides for the seizure of a thing not specified in a search warrant issued thereunder, where the person executing the warrant believes on reasonable grounds that the thing has been obtained by or used in the commission of any federal offence, or will afford evidence in respect of a federal offence.

[12] A search conducted pursuant to a warrant is presumptively valid. If a person claims a s.8 violation arising from such a search, he or she bears the onus of showing that the search was unreasonable. If, however, a search was not authorized by a warrant, the Crown must prove that it was justified in the circumstances. R. v. Jones, 2011 ONCA 632, at para. 19.

[13] In R. v. Jones, the Ontario Court of Appeal considered the operation of s. 489 of the Code and the common law “plain view” doctrine in the context of a search of a computer. As Blair JA put it, the essential question on the appeal was: “What happens when the police are lawfully searching a computer pursuant to a valid warrant for one crime and they discover evidence of another -- are they permitted to continue the computer search for further evidence of the second crime without another warrant?”.

[14] In R. v. Jones, an officer obtained a search warrant to search Jones’ computer for evidence of fraud. The warrant specifically authorized him to search image files as well as other types of files. While conducting the search, the officer unexpectedly found image files of child pornography. He then reviewed video files on the computer to see if they also contained child pornography. When he found that they did, he seized them as well.

[15] The Court of Appeal concluded that the seizure of the image files was lawful, because the officer came upon them while lawfully searching for images that were evidence of the accused’s fraudulent activities as permitted pursuant to the search warrant. The Court held that the search of the video files was unlawful, because it fell outside the parameters of the warrant. The seizure was furthermore not justified under the plain view doctrine, because the video files were not discovered inadvertently. R. v. Jones, at paras. 23 to 26.

[16] In reaching its decision, the Court of Appeal held that a warrant to search a computer for evidence of one crime does not permit an officer to review the entire contents of the computer. Blair JA rejected the Crown’s argument that a computer is “an indivisible object which, like pieces of physical evidence, can be tested and inspected in whatever ways the police deem necessary once lawfully seized under the warrant”. R. v. Jones, at para. 25. He noted that software permits the police to focus on the types of computer files that they believe will generate the evidence they are looking for and that this “is as it should be”. R. v. Jones, at para. 50.

[17] At para. 56 of the decision, Blair JA set out the parameters of the common law plain view doctrine, which exists independent of s. 489 of the Criminal Code:

The "plain view" doctrine operates when a police or peace officer is in the process of executing a warrant or an otherwise lawfully authorized search with respect to one crime and evidence of another crime falls into plain view. Resort to this common law power is subject to the following restraints, however: (i) The officer must be lawfully in the place where the search is being conducted ("lawfully positioned", in the language of the authorities); (ii) the nature of the evidence must be immediately apparent as constituting a criminal offence; (iii) the evidence must have been discovered inadvertently; (iv) the plain view doctrine confers a seizure power not a search power; it is limited to those items that are visible and does not permit an exploratory search to find other evidence of other crimes.

[18] The Supreme Court of Canada has since held that, if in the course of their search of a computer, “ the officers realized that there was in fact no reason to search a particular program or file on the device, the law of search and seizure would require them not to do so”. R v. Vu, 2013 SCC 60, at para. 61.

[19] Where evidence is lawfully seized during a search reasonably conducted pursuant to a valid search warrant, that evidence may be shared with other police forces. As the Supreme Court has noted, police routinely share information that they have lawfully obtained under warrant with their counterparts. It has held that: “Provided information is shared for purposes of law enforcement, the individual cannot complain that the sharing violates his s. 8 right to privacy”. Wakeling v. United States of America, [2014] 3 SCR 5, at para. 93.

(ii) Did Officer Down’s May 11, 2017 search violate Johnson’s s. 8 rights?

[20] Today’s cellphone is a small, portable computer. It can be used not only to make and receive phone calls and texts but to search the internet and to store documents and images. The data downloaded from a cellphone allows the police to track its user’s movements both in the real world and the virtual one. The analysis in R. v. Jones therefore guides my determination of whether the search of Johnson’s cellphone was lawful.

[21] The defence contends that Officer Down’s May 11, 2017 search was unreasonable because:

(i) the CDSA search warrant did not authorize him to search the cellphone’s browser history; (ii) the plain view doctrine does not apply, because Officer Down did not discover the search history inadvertently; and (iii) even if the discovery was inadvertent, the search was unreasonable because Officer Down failed to restrict it to the purpose for which it was authorized.

(i) Did the CDSA search warrant authorize Officer Down to search the cellphone’s browser history?

[22] Officer Down did not testify in the context of this application. He did however testify in a similar application in the context of the prosecution of charges against Johnson for the Barrie shooting, and the transcript of his evidence was relied on by the parties to this application.

[23] On May 2, 2017, Officer Down swore an Information to Obtain (ITO) in support of a search warrant for the cellphone he had seized when arresting Johnson a few days earlier. He affirmed his reasonable belief that the cellphone was a thing that would “afford evidence in respect to an offence” under the CDSA. He stated that the examination and analysis of the cellphone would be based on the drug trafficking offences with which Johnson was charged, and would be conducted in relation to the following categories:

• Communications – in relation to both the accused and additional potential suspects in relation to trafficking controlled substances.
• A timeline of activity in relation to the pre-offence, offence and post-offence behaviour and usage.
• Ownership details identifying primary ownership and primary user or user information.
• Electronic data which includes, but is not limited to, text messages, pictures, videos, and sound recordings.
• Passwords, encryption keys and access codes required for access.
• Device software configuration settings including geographical location information.

[24] Although the Crown concedes that the cellphone’s browser history is not mentioned in the ITO or the CDSA search warrant, it argues that the terms of the warrant were sufficiently broad to authorize a search of the cellphone’s browser history. It contends, among other things, that the browser history could constitute evidence relevant to a timeline of activities or the ownership and use of the cellphone.

[25] In R. v. Jones, Blair JA stated at para. 42 that:

A computer search pursuant to a warrant must be related to the legitimate targets respecting which the police have established reasonable and probable grounds, as articulated in the warrant.

[26] The CDSA search warrant permitted Officer Down to have access to the cellphone only in order to accomplish identified search objectives. The scope of the warrant, and of the search it authorized, was limited by what he reasonably believed he would find by way of evidence with respect to drug trafficking on the cellphone. He testified that the categories of data he listed in the ITO were boilerplate. He further testified that, “on the drug side of things”, when searching a cellphone he would look for text messages that might be evidence of trafficking, call logs for calls with certain cellphone numbers at certain times, and any relevant photos or videos. There is no indication that he intended to review the browser history for evidence relevant to CDSA offenses. In fact, the very notion that he might do so is inconsistent with his assertion that he inadvertently saw the browser history as he scrolled through the PDF.

[27] Despite the Crown’s assertion in its written argument that one could imagine “a plethora of evidence relating to drug trafficking that could appear in the internet/browser history”, the question is not whether a lawyer, four years after the fact, could imagine a plausible reason for an officer to search particular kinds of files on a computer. The issue is whether the officer who swore the ITO and did the search had a reasonable basis for believing that he might find evidence, relevant to the stated objectives of the search, in a particular kind of file.

[28] I therefore accept the Crown’s argument that the stated terms of the CDSA search warrant could, in some circumstances, support a lawful search of the cellphone’s browser history. An officer who swore an ITO for a CDSA warrant might have reasonable grounds to believe that evidence relevant to drug trafficking would be found in the history. But Officer Down had no such belief. The evidence regarding his motivation for reviewing the browser history on the cellphone, which I will get to further below, reveals that he did so for another purpose entirely.

[29] My conclusion on this point is consistent with the outcome in R. v. Jones. In that case, the officer who conducted a computer search looked at image files because he believed he might find evidence of fraud in them. He had in fact identified image files as an area he wished to search in his ITO. The Court of Appeal accordingly found that the search of these files fell within the parameters of the warrant. The officer did not have any reasonable belief that he would find evidence regarding fraud in video files on the computer. As a result, the Court of Appeal concluded that he had no authority, pursuant to the warrant, to conduct a search of these files.

[30] Given Officer Down’s evidence about his own reasonable belief, I conclude that the CDSA search warrant did not permit him to conduct a search of the cellphone’s browser history unless he first found something else on the cellphone, relevant to his own drug investigation, that might legitimately take him there.

(ii) Was the seizure of information found in the browser history justified under the plain view doctrine?

[31] As previously noted, in order to justify a search under the common law plain view doctrine, the Crown must establish that:

(i) The officer was lawfully in the place where the search was being conducted; (ii) The nature of the evidence was immediately apparent as constituting a criminal offence; and (iii) The evidence was discovered inadvertently.

[32] My conclusion about the scope of the warrant arguably forecloses the use of the plain view doctrine to justify the search of the browser history. Where an officer realizes there is no reason to search a particular program or file on a computer, they are required to refrain from doing so. R. v. Vu, supra. Given that Officer Down did not believe that he would find evidence relevant to CDSA offenses in the cellphone’s browser history, it is difficult to see how the Crown could establish that, in reviewing this category of information, he was lawfully in the place where the search was being conducted.

[33] The discovery of the internet searches at issue here also fails to meet the second part of the test. The possession of child pornography is a criminal offence. Searching for information on local crime investigations is not, nor does the discovery of a history of such searches constitute compelling evidence that the person who did them was involved in any crime.

[34] These findings suffice to conclude that the plain view doctrine does not justify Officer Down’s seizure of the information from the cellphone’s browser history. Because it is relevant to my consideration of admissibility under s. 24(2), however, I will also consider whether Officer Down’s discovery of the browser history was inadvertent. I will do so by assessing his evidence in the Barrie application and the transcript of the evidence in the same proceeding of Officer Frith, the lead investigator in the Barrie shooting. I will also weigh the evidence of Officer Fahey in this application.

[35] Officer Down did not take any immediate steps to execute a search on the cellphone after obtaining a warrant to do so. On May 8, 2017, he spoke with Officer Frith. This call took place in the evening after both officers had gone home. They spoke again several times on the phone over the next three days, both before and after Officer Down searched the cellphone.

[36] Where Officer Down’s evidence contradicted the evidence of Officer Frith, I prefer her evidence. Officer Frith’s recollection was based on detailed, contemporaneous notes, while Officer Down’s notes were less extensive and sometimes made after some delay. Her account of her interactions with Officer Down was consistent with Officer Fahey’s account of his interactions with him. Finally, I found Officer Down’s evidence about how he discovered the web browser history to be implausible and inconsistent. Officer Frith’s evidence was, by contrast, straightforward and credible.

[37] The Barrie shooting took place in April 2017. On May 5, 2017, Officer Frith learned that Johnson’s DNA had been found on a marijuana roach seized at the scene. She also learned that he had been arrested by Owen Sound police and he was in custody.

[38] On May 8, 2017, Officer Frith phoned the Owen Sound police station and left a voicemail for one of the officers. In cross-examination, she said that she was seeking information about Johnson’s associates. The same day, she phoned the Owen Sound prison to ask if Johnson had been arrested with a cellphone, so she could obtain a warrant to search it.

[39] According to Officer Frith, she received a call from Officer Down that evening. He told her that he was investigating Johnson for drug trafficking and gave her the names of Johnson’s associates. He also told her that he had obtained a warrant for Johnson’s cellphone and would be downloading its contents.

[40] Officer Frith had a further communication with Officer Down on the morning of May 9, 2017. Her notes indicated that Officer Down informed her that there were two telephone numbers associated with the cellphone, because it had two SIM cards. Officer Frith testified that Officer Down called her again around noon that same day “out of the blue” to provide her with further information. They spoke again the next morning.

[41] Officer Frith testified that “I never asked [Officer Down] to take any steps to that cellphone other than to advise me at a later date where it was held so I could write a warrant to it”. In cross-examination, she specifically denied that she asked him to download the cellphone’s entire contents for her or to look for evidence related to the Barrie shooting on it. She said she would never do this because, in her view, that would be an unlawful search and she would not want to jeopardize the integrity of her own investigation.

[42] Officer Down testified that he retrieved Johnson’s cellphone immediately after his call with Officer Frith on May 9. He did not remember what prompted him to do so. He could not in any event begin the extraction of information from the cellphone right away, because he had to recharge it.

[43] On May 11, 2017, Officer Down used Cellebrite software to generate a PDF document listing all of the cellphone’s contents and printed it out. The PDF was over 2000 pages long. Officer Down testified that he did not use any filtering functions when he generated the PDF, as he would routinely do now, having gained more experience with the software. Instead, he simply scrolled through the entire document from top to bottom.

[44] In cross-examination, Officer Down acknowledged that, in May 2017, he was aware that it was possible to search for specific terms using the Cellebrite software. He also admitted that the parameters of the search warrant would factor into his decision to scan over an entire report, and that web searches were not mentioned in the ITO he swore to obtain the CDSA search warrant. But he agreed with the proposition put to him in cross-examination that “any warrant authorizes you to scan a report from top to bottom to look for something relevant”. He denied ever being told that, “when you get a warrant for a cellphone or a computer, you have to limit your search to particular categories of data”.

[45] Officer Down testified that he scanned through the information in the PDF, “just initially looking for anything of interest” to him. He said that, while doing so, he noticed a history of internet searches on the cellphone, including an April 14, 2017 search in relation to the Barrie shooting, and a March 31st, 2017 search in relation to the Carron home invasion, as well as other web searches relating to other criminal activities in Ontario.

[46] When asked during examination-in-chief why he was looking at the browser history on Johnson’s cellphone, Officer Down stated that “it was simply a matter of scrolling through the report starting at the top” and “coming across something that stood out to me saying, you know, Barrie shooting”. He admitted that the CDSA search warrant did not authorize him to search for evidence relating to the Barrie shooting.

[47] In cross-examination, Officer Down was asked about the order of the notes he took while scrolling through the PDF. The first bullet point in his notes read “scan over report”. The second said “OBS google searches” made 14-April 17 “Barrie shooting”, 13-Mar-17 “West Carleton home invasion”, and similar notes about another shooting and another robbery. The third bullet point mentioned he had googled these events and they all appeared unsolved, and the next was “10-21 Ottawa Robbery Unit and advises link to similar suspects”. Officer Down testified that “10-21” means that he placed a phone call. It is not until the last bullet point in his notes that Officer Down referred to texts in relation to drugs that he would analyze at a later time.

[48] Officer Down agreed that, based on his notes, it appeared that his focus in the initial scan of the PDF was the Barrie shooting. He maintained, however, that this was just because the discovery of these searches was “something out of the normal”. He could not explain why he did not start scanning the parts of the PDF document with text messages and call logs, even though these were the sections that, on his admission, were most likely to contain information relevant to his drug investigation. He acknowledged that he was “mindful” of the Barrie investigation and so the web searches drew his attention. He nevertheless again denied, in re-examination, that his initial scan of the PDF report focused on the Barrie shooting as opposed to evidence relevant to his drug investigation.

[49] After noting the web searches, Officer Down googled the incidents and discovered that they seemed to relate to unsolved crimes. He then called the robbery unit of the Ottawa Police Service and left a message about the search history for the Carron home invasion, and then called Officer Frith.

[50] Officer Frith testified that, during the May 11 call, Officer Down told her that he had downloaded the data on the cellphone, and spontaneously mentioned that the cellphone’s browser history included searches on the Barrie shooting and on a home invasion in West Carleton. According to her, Officer Down also said that he had himself done internet searches on the incidents and shared what he had found.

[51] Officer Frith told Officer Down that she would seek judicial authorization to obtain information from the cellphone. Officer Down acknowledged that he understood, based on this discussion, that the Barrie Police Service would be consulting with local Crown counsel on how best to obtain the report on the cellphone extraction. As a result, he did not send Officer Frith a copy of the PDF.

[52] Officer Frith obtained a production order on May 24, 2017 for a copy of the PDF download of Johnson’s cellphone. She did not mention the information she obtained from Officer Down in the ITO used to obtain the order. She testified that she omitted this information because she did not think she had received it in a lawful way.

[53] Officer Frith’s judgment on this issue was correct. After he was charged with offences in relation to the Barrie shooting, Johnson challenged the admissibility of the evidence found on the cellphone for the purpose of that prosecution. R. v. Johnson, 2020 ONSC 1631 (“Vallee J.’s first decision”) and 2020 ONSC 7173 (Vallee J.’s second decision”).

[54] During the hearing of this application, I asked counsel whether I should give weight to Vallee J.’s finding with respect to Officer Down’s credibility. The Crown stated that that I should not, based on caselaw holding that issue estoppel does not apply to determinations made on a voir dire. Duhamel v. The Queen, [1984] 2 SCR 555; R. v. Boone, 2012 ONSC 7547, at paras. 9 to 18. I do not find this caselaw fully addresses my question. The issue is not whether I could come to a different conclusion than Justice Vallee on the ultimate issue in this application — whether Officer Down’s search violated Johnson’s s. 8 rights — but rather whether I should defer, to some extent, to the assessment of witnesses’ credibility by a judge who has heard directly from them when I have only seen a transcript of their evidence.

[55] This debate is moot as, having done my own review of the evidence, I reach the same conclusion as Justice Vallee on the reliability of the evidence of the officers and why Officer Down reviewed the cellphone’s browser history. Based on Officer Frith’s evidence about Officer Down’s conversations with her on May 8, 9, 10 and 11 and his decision to do the search after getting her first call, I conclude that he was keen to assist her in her investigation. This was why he fetched the cellphone from the evidence room the day after they first spoke, and likely informed his decision to download the entire contents of the cellphone rather than using the Cellebrite software to confine the download to those areas where he expected to find evidence relevant to the drug investigation. Although he acknowledged that the search warrant did not authorize him to search for evidence regarding the Barrie shooting, he was of the view that the warrant entitled him “to scan a report from top to bottom to look for something relevant”.

[56] I infer that the notes that Officer Down made as he reviewed the PDF reflected the order in which he reviewed the cellphone’s contents, in the absence of any other rational explanation for this. The browser history was the very first thing he looked at. He reviewed it even though, by his own admission, he would not ordinarily review a cellphone’s browser history in the context of a CDSA search. The level of his interest in what he found in the browser history was such that he interrupted his review of the PDF to do his own internet searches and to place at least one call. Although he made detailed notes about the browser history, he did not, at the time, take any notes about specific text communications relevant to his own investigation.

[57] I conclude that Officer Down deliberately reviewed the PDF for information about the Barrie shooting. In doing so, he also found a history of an internet search with respect to the Carron home invasion. The discovery of this evidence was not inadvertent. It was the result of having intentionally sought out information that had nothing to do with the drug trafficking investigation in furtherance of which he had obtained the CDSA search warrant.

[58] I conclude that Officer Down obtained the information about the browser history on the cellphone as the result of an unlawful search of the cellphone’s contents. It follows that his sharing of this information with Officer Fahey was also unlawful.

(iii) Was the search unreasonable because Officer Down failed to restrict it to the purpose for which it was authorized?

[59] Johnson argues that Officer Down’s decision to download the entire contents of the cellphone, rather than tailoring his search, also violated his right to privacy under s. 8. He relies on R. v. Sop, 2014 ONSC 4610, a case where police systematically reviewed all of the data on computers seized in the context of a child pornography investigation instead of using search parameters to locate specific items they had reasonable grounds to suspect might be found on them. Justice Sloan concluded that the method by which the search was conducted infringed the accused’s rights.

[60] Officer Down admitted that he knew it was possible to tailor the search of Johnson’s cellphone using the Cellebrite software. He could not explain why he chose to download over 2000 pages of information from the cellphone when, in the context of a drug investigation, he would typically be interested only in text messages, calls logs, and image and video files. I conclude that, in the circumstances of this particular case, the methodology he used was unreasonable and in violation of Johnson’s s. 8 rights.

(iii) Did Officer Fahey’s May 6, 2019 search violate Johnson and Bancroft’s s. 8 rights?

[61] Officer Down’s May 11, 2017 call to the Ottawa Police Service was referred to Officer Fahey because he was investigating the Carron home invasion. Officer Fahey testified that, when they spoke, Officer Down advised that he had searched Johnson’s cellphone. Officer Fahey asked what he had found. He recalled that Officer Down mentioned various robberies referred to in the browser history in the PDF, including the Carron home invasion.

[62] In August 2017, Carey St. Michael disclosed information to the Ottawa police about the Carron home invasion. He told police that Bancroft was the mastermind and that the perpetrators were two men he knew only as “Konvic” and “Juice”. He subsequently identified Johnson in a photo lineup, and Johnson and Bancroft were arrested on the charges giving rise to this prosecution.

[63] On September 5, 2017, Officer Fahey asked Officer Down for the PDF, an electronic copy of which he received the next day. On September 11, 2017, he reviewed the browser history. He then delivered a four-page excerpt to the Crown so that it could be disclosed to the defence.

[64] Officer Fahey testified that he did not review any other portion of the PDF until May 6, 2019, when he was preparing to testify at the preliminary inquiry in this case. Crown counsel brought up the possibility that day that there might be a record of relevant text messages in the PDF. Officer Fahey then searched the text messages using “Bancroft” and a telephone number believed to be used by Bancroft as search terms. On May 14, 2019, he testified at the preliminary inquiry and was asked about the PDF. He expressed the view, during his testimony, that he did not need a search warrant or production order to view the PDF, because the plain view doctrine allowed him to do so. This view was apparently based on advice he had received from an assistant Crown attorney at some point prior to his May 6, 2019 search.

[65] After the preliminary inquiry, Officer Fahey gave Crown counsel a copy of the entire PDF. He was subsequently told by Crown counsel on the file that he should get a warrant and that he should consult with outside counsel on this issue.

[66] As a result, on August 12, 2019, Officer Fahey swore an ITO to obtain a warrant to search Johnson’s cellphone in the context of this prosecution. In the ITO, he expressed the belief that information on the cellphone would further link Johnson, Bancroft and St. Michael and provide evidence on the identity of the suspect known as Juice. A warrant was issued. When the Ottawa Police received the cellphone, however, its chip was too damaged for further extraction. As a result, on February 24, 2020, Officer Fahey swore a further ITO to obtain a production order for the data extracted in Owen Sound in 2017.

[67] In his testimony on this application, Officer Fahey agreed, in general terms, that he is not allowed to rely on information that was unlawfully obtained. He stated that he assumed that Officer Down’s search was lawful. If it was not, he conceded that he could not review the PDF based on the plain view doctrine.

[68] In cross-examination, Officer Fahey also admitted that:

• he did not know why Officer Down had reviewed the browser history on Johnson’s cellphone;
• he did not know why such a review would be relevant to a drug investigation;
• he had never seen the ITO sworn by Officer Down in support of the CDSA search warrant or the warrant itself;
• he made no inquiries to verify whether the 2017 search had been conducted lawfully; and
• he did not know whether the Owen Sound police would have had any interest in Johnson’s web search history in the context of their drug investigation.

[69] Officer Fahey also acknowledged that he spoke with Officer Frith in May 2017, after his conversation with Officer Down, and that he knew she was seeking a production order for the PDF. He nonetheless elected to review the PDF in September 2017 and again in May 2019 without first obtaining his own warrant or order.

[70] Officer Fahey’s reliance on legal advice from an assistant Crown attorney may be relevant to the admissibility of the evidence he obtained prior to getting a warrant. It does nothing, however, to transform an unlawful search into a lawful one.

[71] As of May 6, 2019, the only source of judicial authorization for a search of Johnson’s cellphone was the CDSA search warrant. It clearly did not permit a search for evidence relating to the Carron home invasion. As a result, Officer Fahey’s review of the PDF in September 2017 and again in May 2019 was unlawful and violated Johnson and Bancroft’s s. 8 rights against unreasonable search and seizure.

(iv) If one or both of the searches were unlawfully conducted, should the evidence obtained through them be excluded?

[72] Section 24 of the Charter provides as follows:

1. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
2. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[73] Since I have determined that the searches violated Johnson and Bancroft’s s. 8 rights, I must now consider whether the admission of the evidence seized during those searches would bring the administration of justice into disrepute under s. 24(2) of the Charter. This requires me to weigh the three factors set by the Supreme Court in R. v. Grant: (i) the seriousness of the Charter-infringing conduct; (ii) the impact of the breach on the accused’s Charter-protected interests; and (iii) society’s interest in an adjudication on the merits.

(i) The seriousness of the Charter-infringing conduct

[74] As stated by former Chief Justice McLachlin: R. v. Harrison, 2009 SCC 34, at para. 22:

At this stage the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. Did it involve misconduct from which the court should be concerned to dissociate itself? This will be the case where the departure from Charter standards was major in degree, or where the police knew (or should have known) that their conduct was not Charter-compliant. On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern.

[75] Officer Down took advantage of the authorization he was given to search Johnson’s cellphone for one purpose — to find evidence relating to drug offences — for a different purpose — to find evidence relevant to the Barrie shooting. In doing so, he also found information that might suggest that Johnson was involved in other crimes. I do not find that Officer Down acted in bad faith. He seems to have been motivated by a desire to help with other investigations. Through his conduct, however, Officer Down displayed a clear lack of understanding of what a search warrant for a cellphone entitles the police to do. He failed to use the tools available to him to tailor the search. He acted as though his search power was unrestricted. This is concerning given the broad range of deeply personal information that a cellphone may contain.

[76] I have furthermore found that, in his testimony in the Barrie proceeding, Officer Down was not candid about his reasons for reviewing the web history information on the PDF. As noted by the Court of Appeal, “the integrity of the judicial system and the truth‑seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority”. R. v. Harrison, quoted in the SCC decision, supra, at para. 26.

[77] Officer Fahey’s conduct was less egregious, but also showed a lack of understanding of Johnson’s Charter rights. He did not question whether Officer Down had conducted a lawful search of the cellphone. This oversight is somewhat understandable; a police officer might legitimately assume that another officer was acting lawfully. This excuse becomes less tenable given that Officer Frist advised Officer Fahey that she was seeking a production order. This should have alerted him to the possibility that he too lacked the requisite authority to search Johnson’s cellphone without first obtaining his own warrant or production order.

[78] Although Officer Down and Officer Fahey were wrong about what the CDSA search warrant entitled them to do, the evidence does not lead me to think that this reflects a systemic problem. If their view was universally shared, Officer Frith would not have sought a production order. Officer Fahey also sought out legal advice before doing his own search in May 2019 and did a tailored search for specific kinds of information on the cellphone. The absence of a systemic problem does not mitigate a breach. R. v. Harrison, at para. 25. It does however allay concerns that admitting the evidence will condone a widespread practice.

[79] A more serious issue arises, however, from the advice provided by an assistant Crown attorney in May 2019. Both the decision to give that advice, and the advice itself, displayed a reckless disregard for Bancroft and Johnson’s s. 8 rights.

[80] A lawyer cannot possibly determine the legality of a search pursuant to a warrant without seeing the warrant or, at the very least, having an understanding of the context in which it was issued. Officer Fahey did not have a copy of the CDSA search warrant and asked Officer Down nothing about it. In light of this, the assistant Crown attorney did not have the information he required to provide meaningful legal advice. He ought to have recognized that he could not ascertain whether the warrant gave Officer Fahey authority to search the cellphone or whether there were any limits to the scope of that authority.

[81] To the extent that the Crown attorney thought he should venture to assess the legality of the proposed search, in these circumstances, he ought to have erred on the side of caution. He did the opposite, by giving Officer Fahey a go-ahead to do the search without limitation.

[82] Finally, it is hard to understand the basis for the advice provided by the assistant Crown attorney. Prior to the Court of Appeal’s decision in R. v. Jones, it could be argued that a search warrant for a computer entitled police to search all of its contents. The debate on that point ended with that decision, which was issued almost ten years ago. In its written submissions in this application, the Crown acknowledges that Officer Down’s possession of the CDSA search warrant did not mean that he was permitted to search Johnson’s cellphone “indiscriminately for evidence that might assist the Ottawa Police service”. And yet, that is exactly what the assistant Crown attorney told Officer Fahey he could do in May 2019.

[83] Taking into account Officer Down’s fundamental lack of understanding of the limits of his authority to search in May 2017, his misleading evidence about the search in the Barrie proceedings, and the role played by an assistant Crown attorney in the May 2019 search, I conclude that the conduct in this case falls on the more serious end of the spectrum.

(ii) The impact of the breach on Johnson and Bancroft’s s. 8 rights

[84] The Crown argues that the evidence at issue here is not sensitive personal information. Information about web searches and text messages, it contends, do not demean the dignity of either Johnson or Bancroft.

[85] I agree that the information seized here was not particularly sensitive. This does not mean that the unlawful searches had no impact on Johnson and Bancroft’s privacy rights. As Justice Fish has observed, “[i]t is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer”. R. v. Morelli, 2010 SCC 8, [2010] 1 SCR 253, at para. 2. The impact of the breaches should be measured not only by what was unlawfully seized, but by what was unlawfully viewed. Officer Down testified that he gave the entire 2000-page PDF a cursory look.

[86] The Crown also argued that the impact of the breach was not serious because Johnson’s cellphone had been used to commit criminal offences. I do not know that to be true. In any event, I am unaware of any legal authority for the proposition that would somehow mitigate the impact of a Charter breach.

[87] I must also consider the discoverability principle. The more likely it is that evidence would have been discovered absent a violation of the accused’s Charter rights, the less its impact, and vice versa. R. v. Grant, at para. 122. Officer Fahey testified that, when Officer Down shared information from his search in May 2017, neither Johnson nor Bancroft were on his radar as possible suspects in the Carron home invasion. He did not know that the Owen Sound police had seized Johnson’s cellphone or that there might be anything relevant to his investigation on it. Although the Ottawa police learned of Bancroft’s alleged involvement in the home invasion through St. Michael, he knew Johnson only as “Konvic”. Officer Fahey did not provide any evidence indicating that he might have discovered Johnson’s potential involvement prior to August 2017, absent his receipt of information from Officer Down. It was only the information obtained unlawfully from Johnson’s cellphone that prompted Officer Fahey to include his picture in a photo lineup at which he was identified by St. Michael as “Konvic”. This weighs against the admissibility of the evidence.

[88] In reaching this conclusion, I do not make any finding as to whether the Ottawa police might have obtained other evidence that would have implicated Johnson after August 2017, following St. Michael’s disclosure of Bancroft’s involvement.

(iii) Society’s interest in the adjudication of the case on the merits

[89] In this third part of the Grant analysis, I must consider “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”. R. v. Grant, at para. 79.

[90] This factor weighs in favour of admitting the evidence. Society has a strong interest in seeing this case adjudicated on its merits. The charges against Johnson and Bancroft stem from a violent home invasion and robbery. The information on the cellphone is real and reliable, and existed in the absence of the breaches of Johnson and Bancroft’s privacy rights. The admission of this evidence will enhance the court’s ability to determine what happened on August 22, 2016. It will corroborate St. Michael’s testimony and his identification of Johnson in the August 2017 lineup.

Conclusion on the admissibility of the evidence

[91] A cellphone contains a wealth of private and personal information. I conclude that the court must dissociate itself from an approach to the search and seizure of cellphones that disregards the principles set out in R. v. Jones and that would permit an officer with a warrant for a limited purpose to exploit the situation by searching the entire contents of the device for another purpose. Officer Down and Officer Fahey’s conduct and the advice given by the assistant Crown attorney in this case show, respectively, a lack of awareness of the limits of authority conferred by a search warrant for a cellphone, and a reckless disregard for the privacy rights of its owner. Although the evidence at issue would assist the court in adjudicating this case on its merits, this consideration does not outweigh the factors weighing against admission.

[92] Weighing the three Grant factors, I conclude that the evidence ought to be excluded as its admission would bring the administration of justice into disrepute.

Disposition

[93] The application is granted. The evidence seized from Johnson’s cellphone by Officer Down on May 11, 2017 and by Officer Fahey on May 6, 2019 is excluded.

Justice Sally Gomery Released: February 19, 2021