COURT FILE NO.: CR-17-895
DATE: March 22, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Caitlin Downing, Counsel for the Crown
- and -
MARK CAMERON Accused
Jon Doody, Counsel for the Accused
HEARD: August 17, 18 and 19, 2020, February 1, 2, 4, and 5, 2021
RULING ON CHARTER APPLICATION
JAMES, J.
Introduction
[1] The defence has brought two applications to exclude evidence pursuant to s. 24(2) of the Charter as a result of alleged breaches of the applicant’s s. 8, 9 and 10 rights under the Charter. One application focuses on the events of the night of May 30-31, 2017. The other application challenges the issuance of certain search warrants and a production order.
[2] The crimes in question relate to a late-night robbery of an occupied private residence by armed intruders.
[3] The Killaloe detachment of the OPP is located in a primarily rural section of Renfrew County. The night shift on Tuesday May 30, 2017 consisted of Provincial Constable Jeff Cotnam from the Upper Ottawa Valley detachment who was the Acting Sergeant for the shift, and three other officers, Provincial Constables Claude Chartrand, Julie Bourgoin (then McPeak) and Jonathon Anderson.
[4] Just after midnight a call came in from the OPP Communications Center in Smiths Falls, Ontario, advising that the 911 operator had been contacted by someone asking for help at 40473 Combermere Road and the phone line had been left open. The 911 operator could hear muffled voices that sounded like people arguing.
[5] P/C Chartrand and P/C Anderson were the first to be dispatched in an unmarked vehicle, followed by A/ Sgt. Cotnam and P/C Bourgoin, three vehicles in all. The phone line to the address remained open. Further inquiries disclosed that 40473 Combermere Road was a residence occupied by Miles and Jody Tettemer.
[6] The route from the detachment to the residence was west along Highway 60 then south from the village of Barry’s Bay on Highway 62 (also known as Combermere Road), about 30 kilometers in total.
[7] The officers received updates from the Communications Center while enroute. At about 00:24 hours the female caller (subsequently identified as Jody Tettemer) came back on the line. The gravity of the situation increased as additional information became available. She reported that up to four suspects armed with guns and knives had forced their way into the home and that someone had been hurt.
[8] At 00:26 hours the caller reported that the intruders were leaving but could provide no information regarding a vehicle or their direction of travel. She said her husband scuffled with one of the intruders and had what appeared to be a broken nose.
[9] At that moment P/C Chartrand and P/C Anderson were nearing the location. P/C Chartrand was driving. P/C Anderson was watching the 911 numbers along the road for the subject residence. They had not encountered any traffic after turning south on Combermere Road at Barry’s Bay. As they approached the driveway for 40473 Combermere Road, P/C Chartrand saw a vehicle several car lengths in front of him make a U-turn and head north towards them in the opposite lane. P/C Chartrand pulled in front of the still slow-moving vehicle to stop it and illuminated the interior of what was later identified as a 2017 black Jeep. He saw only one occupant. He radioed A/Sgt. Cotnam who was nearing the location from behind to say he was going on ahead and that A/Sgt. Cotnam should check out the stopped vehicle.
[10] A/Sgt. Cotnam said that as he approached the subject residence, he saw P/C Chartrand pull in front of an oncoming vehicle which stopped on the shoulder of the road. A/Sgt. Cotnam drove in behind P/C Chartrand who went on ahead to look for suspects.
[11] Variations in the different officers’ testimony about the exact location of A/Sgt. Cotnam’s vehicle and how far to the left P/C Chartrand drove into the northbound lane in front of the Jeep are inconsequential. I accept A/Sgt. Cotnam’s evidence that his vehicle and the Jeep were positioned “nose to nose”.
[12] A/Sgt. Cotnam remained in his vehicle and radioed in a licence plate inquiry while the Jeep remained stopped on or at the side of the road.
[13] The plate inquiry came back quickly as a rental vehicle. A/Sgt. Cotnam exited his patrol vehicle and approached the Jeep. He testified that ordinarily he would request driver’s documentation and ask a few questions. This stop was different. As he approached, he recognized the driver to be Mark Cameron. Mr. Cameron was known to police in connection with illicit drugs. His knowledge of Mr. Cameron led him to believe the situation could escalate quickly. He radioed the driver’s identity to P/C Chartrand before speaking with the driver. He requested the ignition key and told Mr. Cameron to raise his hands towards the roof liner of the vehicle. He testified that on a routine traffic stop he wouldn’t request the ignition key. If he was detaining or arresting the driver, he would provide a reason for the detention or arrest and would read the usual cautions from a card in his duty book. That did not happen with Mr. Cameron.
[14] A/Sgt. Cotnam agreed that when he requested the applicant to turn over the ignition key and raise his hands, he was in investigative detention at that moment. A/Sgt. Cotnam didn’t tell Mr. Cameron why he was detained. He only said that they were investigating a serious incident.
[15] He didn’t want to ask Mr. Cameron to get out of the Jeep until he had some back up. Also, he believed that he was in an exposed position, with possible armed accomplices nearby. The surroundings were mostly dark woods with long country driveways from residences to the highway.
[16] He didn’t provide a right to counsel caution. He didn’t want to look down for the length of time it would take to read a caution from the card he carried. He wanted to keep a watch towards the woods. He said he was concerned that the situation was developing too quickly and he wanted to slow things down.
[17] A/Sgt. Cotnam positioned himself on the passenger side of the vehicle and looked inside. He didn’t see anyone else.
[18] Upon learning that Mark Cameron was the driver of the Jeep, P/C Chartrand radioed A/Sgt. Cotnam and said that he believed Mr. Cameron was a suspect. He said to A/Sgt. Cotnam that Mr. Cameron was a known “CDSA”.
[19] At the time of this radio exchange, P/C Chartrand had driven about a kilometer further down the road. He hadn’t seen any other vehicles and he told Cotnam that he was going to turn around and return. He was back at the Jeep in under two minutes from the time he had first encountered it. Within that time, A/Sgt. Cotnam had made a licence plate inquiry on the Jeep and had received a return before exiting his patrol vehicle and engaging with the driver.
[20] The police had information that someone had been injured in the residence. An ambulance had been dispatched. P/C Chartrand stopped behind the Jeep and walked to the driver’s window. He recognized the driver immediately. He advised Mr. Cameron that he was under arrest for assault and told him to get out of the vehicle.
[21] He testified that he believed he had reasonable and probable grounds (“RPG”) for the arrest. He said he based this belief on the totality of the circumstances which encompassed the following considerations:
a. Information received from the dispatcher who continued to have an open line to the residence including: i. The number of suspects; ii. That they had just left the residence; iii. That someone had been sufficiently injured to warrant an ambulance call b. That the Jeep had just performed a U-turn near the driveway of the subject residence; c. That he had not encountered any vehicles after leaving Barry’s Bay enroute to the residence and he did not observe any other vehicles were in the vicinity; d. That Mr. Cameron lived in Pembroke, not in the Barry’s Bay area; e. That Mr. Cameron was known to him as a drug user and enforcer.
[22] Subsequent inquiries established that Mr. Cameron never entered the residence and had not assaulted anyone.
[23] P/C Anderson frisked and handcuffed Mr. Cameron and placed him in the back seat of the police vehicle. P/C Chartrand did a cursory search of the Jeep incident to Mr. Cameron’s arrest. He searched quickly because he felt they were in an exposed situation. The search lasted 20 to 30 seconds at most. He said he didn’t look under the floor mats, the seats or in the glove box. He retrieved a cell phone and wallet from the center console and a black duffel bag from the back seat. The zipper on the duffel bag was open. P/C Chartrand observed two knives in the bag- a hunting knife and a flick knife, sometimes referred to as a butterfly knife, a prohibited weapon. He also saw a pair of grey gloves and a black wallet. There were other items in the bag that he said he didn’t see until later when he searched the duffel bag more thoroughly at the detachment.
[24] P/C Chartrand testified that the reason he looked in the duffel bag was to determine if it contained any weapons and to see if it contained any evidence in relation to the incident they were investigating.
[25] He said his focus was to look for weapons and then to relocate from the area for safety reasons.
[26] P/C Chartrand said he arrested Mr. Cameron at 00:33 hours. None of the police officers gave Mr. Cameron a right to counsel warning when he was arrested. Chartrand and Anderson then left the scene with Mr. Cameron in the backseat after he had been frisked and handcuffed. They stopped several kilometers away from where Mr. Cameron had been arrested at a place that had better lighting and where they could make some entries in their duty books. P/C Anderson read a right to counsel caution to Mr. Cameron at 00:44 hours. Mr. Cameron said he understood and declined to call a lawyer. Neither officer’s duty book contained an entry confirming that Mr. Cameron had said he understood the caution.
[27] Mr. Cameron made a spontaneous utterance from the back seat of the cruiser before being provided with a right to counsel warning at 00:44 hours. He said words to the effect that he was in the area on his way back from fishing. Neither P/C Chartrand nor P/C Anderson asked Mr. Cameron any questions to prompt the utterance. P/C Chartrand said he didn’t want to engage in a conversation under the circumstances.
[28] They remained in the area patrolling with Mr. Cameron in the back seat while they waited for additional support to arrive. They eventually left for the detachment at around 03:00 hours.
[29] At 00:50 hours P/C Bourgoin ferried the victims from the residence to an ambulance that was waiting a safe distance away. She escorted the ambulance to the hospital in Barry’s Bay and remained there with them. This left A/Sgt. Cotnam as the only other officer present in addition to P/C Chartrand and P/C Anderson. He took up a position near the residence and began making arrangements for additional support. He requested back-up from the Bancroft OPP detachment. A patrol vehicle from Bancroft arrived at about 01:50 hours. As a result of discussions with senior officers, arrangements were made for a canine unit and the Emergency Response Team to be dispatched to the scene.
[30] One of the wallets found in the Jeep contained identification for a Christopher Gilmour. Mr. Gilmour was arrested a few hours later after he emerged from a wooded area near the subject residence and surrendered to police. Mr. Gilmour later entered a guilty plea to charges related to this incident.
[31] On their way back to the detachment, P/C Chartrand and P/C Anderson encountered the Emergency Response Team who were mustering a few kilometers away. They had a brief discussion and P/C Chartrand arrived at the detachment with Mr. Cameron at 03:26 hours. He took Mr. Cameron to the cells and gave another right to counsel warning. Mr. Cameron responded by saying, “No, I don’t want to wake him up at this time of night.”
[32] After Mr. Cameron was secured, P/C Chartrand searched the duffel bag again. This time he found a bag of white powder that was subsequently determined to be cocaine.
[33] P/C Chartrand conducted a video-recorded interview of Mr. Cameron that started at 04:34 hours and lasted half an hour.
[34] Detective Constable Nisbet received a call at home at about 02:20 hours and arrived at the detachment at 03:10 hours. He was present for P/C Chartrand’s interview of Mr. Cameron at around 04:34 hours.
[35] At 09:00 hours D/C Nisbet arrested Mr. Cameron for the offences in connection with the events at the Tettemer residence and two unrelated assaults. He provided a right to counsel warning and Mr. Cameron asked to speak with counsel, which he did from 09:07 to 09:12 hours.
[36] Subsequently D/C Nisbet arranged for a search warrant for two cell phones that were stored in an evidence locker at the detachment. The search warrant was executed on June 12, 2017, and this date was written on the face of the warrant. There was also a search warrant authorization for the GPS data in the Jeep which was in an OPP garage, which he said was executed on the same date.
The Charter Breach Allegations stemming from the night of May 30-31
[37] The conduct of the police officers involved in this call for service ought to be considered in context. The 911 call came in at night from a rural location about 30 kilometers from the detachment. There were four officers on duty. Additional back up was not immediately available. Updating information received enroute indicated that there were possibly four armed assailants who had just exited the residence. There was a report that someone in the residence had been injured.
[38] The patrol vehicle dispatched from the Bancroft detachment arrived on scene about an hour after support from that detachment was requested.
[39] A/Sgt. Cotnam said he did not tell Mr. Cameron why he was detained and he didn’t request that Mr. Cameron exit the vehicle. He said he did not want to trigger a confrontation with Mr. Cameron without additional officers present and he didn’t want to be alone with Mr. Cameron outside his vehicle. He didn’t know if the intruders were lurking nearby. He walked to the passenger side of the Jeep and surveyed the interior. He also attempted to monitor the nearby woods. P/C Chartrand arrived back at A/Sgt. Cotnam’s location about a minute after A/Sgt. Cotnam radioed Mr. Cameron’s identity. P/C Chartrand immediately proceeded to arrest Mr. Cameron for assault.
[40] It is clear Mr. Cameron was detained from the moment A/Sgt. Cotnam approached the vehicle and requested the ignition key.
[41] The defence says that A/Sgt. Cotnam failed to inform Mr. Cameron as to the reason for his detention and failed to take any steps to further the investigative detention.
[42] Considered in context, and in particular the safety considerations and the very brief period of time from when A/Sgt. Cotnam approached the Jeep to when P/C Chartrand arrested Mr. Cameron, the suggestion of a s. 9 or 10 Charter violation evaporates.
Seizure of the Jeep key
[43] The defence contends that the taking of the Jeep key constituted a warrantless seizure and was therefore unreasonable. As Mr. Doody explained, the seizure of the key itself may have been inconsequential, but the seizure was to further the detention, so in effect the seizure was an illegal act to further another illegal act and was therefore not in good faith.
[44] In my view, the taking control of the ignition key made good sense in the circumstances. It was proper for A/Sgt. Cotnam to consider the safety risks associated with an attempt to flee by Cameron. The seizure of the key was within the scope of A/Sgt. Cotnam’s duties; it was reasonable and necessary. This action did not constitute a Charter breach.
Did P/C Chartrand have RPG to Arrest Mr. Cameron?
[45] In my view, while not the only claim of a breach of Mr. Cameron’s Charter rights, this issue sits at the heart of defence allegations. The question is whether P/C Chartrand’s subjective belief that he had RPG to arrest Mr. Cameron was objectively reasonable in the circumstances. In my view, the factors that P/C Chartrand identified as informing his belief that RPG existed were rationally capable of supporting his subjective belief. Those factors are to be assessed in their totality. They are cumulative.
[46] This was a sparsely populated, rural area. It was after midnight. There was no traffic. P/C Chartrand knew the suspects had just left the house. As he approached the subject residence, a vehicle performed a U-turn near the driveway of the house they were looking for. P/C Chartrand knew from the dispatcher that someone had been injured. When P/C Chartrand returned to where the Jeep was stopped, he recognized Mr. Cameron immediately upon approaching the vehicle. He knew Mr. Cameron as a drug user and enforcer and as someone who could be violent. Mr. Cameron’s presence in the middle of the night, in a different community from where he lived, in the immediate proximity of where a serious crime had just been committed, were significant objectively-reasonable factors.
[47] A police officer need not exhaust all possible avenues of investigation or inquiry prior to making an arrest. Nor is a police officer required to interview potential witnesses, or to obtain the suspect’s version of events or otherwise establish there is no valid defence, before being able to form RPG (Wong v. Kyriacou, 2009 CanLII 66385 (ON SC), [2009] O.J. No. 5067, (SCJ), para. 59).
[48] Police are not required to evaluate evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges (Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129 at para. 50).
[49] The defence acknowledges that if Mr. Cameron’s arrest was lawful, the subsequent pat-down search of his person and the search of the Jeep are lawful.
The Delay in Providing Right to Counsel Information
[50] After Mr. Cameron was arrested, and after the Jeep was searched along with the duffel bag, P/C Chartrand and P/C Anderson left the location where the Jeep was parked without having provided Mr. Cameron with a statement respecting his right to counsel. P/C Chartrand said his usual practice was to read the caution from a card he carries in his pocket and to make notes of the responses. He said he felt like they were sitting ducks in the area where the Jeep had been stopped, with the possibility of armed suspects nearby. They were standing in a pool of light from the vehicle headlights, surrounded by darkness. His information was that the suspects had just left the house and there was a substantial possibility that they were in the immediate area. He felt it wasn’t safe where they were standing. P/C Anderson said he was worried about getting shot at and not knowing where to return fire. P/C Chartrand and P/C Anderson left that location with Mr. Cameron handcuffed in the backseat and drove to where P/C Chartrand said it was safer and where he could write some notes. It is not clear how far they drove or where they pulled off the road.
[51] Right to counsel was provided by P/C Anderson at 00:44 a.m. when they parked off the road, about 11 minutes after Mr. Cameron was arrested.
[52] The immediacy of the words “without delay” in section 10(b) of the Charter was reinforced in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, but in so doing, the Supreme Court of Canada recognized that concerns for officer and public safety had to be accommodated (para. 42). In R. v. Pileggi, 2021 ONCA 4 at paras. 57 to 63, Trotter J.A. concluded that a 7 minute delay in advising the accused of his right to counsel while the house was searched and secured by other officers constituted a brief delay that was reasonable in the circumstances.
[53] There is no evidence that the police sought to elicit information from Mr. Cameron before providing a right to counsel warning. On the available evidence, I am not persuaded that this delay amounted to a Charter breach.
Change in Jeopardy Issue
[54] The defence says that the police had grounds to arrest Mr. Cameron for further offences after finding the open duffel bag on the back seat of the Jeep but did not re-address Mr. Cameron’s s. 10(a) and 10(b) rights. This requirement comes into play when “there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning” (R. v. Evans, 1991 CanLII 98 (SCC)).
[55] The evidence on this point is that while P/C Anderson was standing on the roadside with Mr. Cameron, P/C Chartrand searched the Jeep. This search revealed a black wallet and a cell phone on the center console between the front seats, which were seized. P/C Chartrand looked in the black duffel bag. Using his flashlight, he saw some gloves and two knives- one of which was a prohibited weapon. There was also a second black wallet. P/C Chartrand seized the duffel bag. There was also a bag containing white powder in the duffel bag that P/C Chartrand said he did not see until later back at the detachment.
[56] P/C Chartrand agreed he saw the knife and knew it to be a prohibited weapon. He said he did not subjectively realize that he had RPG to charge Mr. Cameron with possession of a prohibited weapon until he was back at the detachment and had an opportunity to search the duffel bag more thoroughly. At 04:37 Mr. Cameron was re-arrested for possession of a prohibited weapon, possession of cocaine and breach of a court order.
[57] In my view, the discovery of the prohibited weapon in the duffel bag at the roadside was not such a significant change in jeopardy that a reiteration of the right to counsel caution was warranted. In fact, Mr. Cameron had not been given any right to counsel caution at that point. He was provided with an additional caution back at the detachment when he was charged with additional offences at 04:37 hours.
[58] The defence says that when P/C Chartrand stated that he departed from the location of the Jeep immediately after the arrest, this evidence creates uncertainty about the timing and identity of the person who searched the duffel bag. I do not agree. The radio transmissions establish that the duffel bag was searched at the place where Mr. Cameron was arrested. P/C Anderson said he did not search the Jeep or the duffel bag. He was outside the vehicle dealing with Mr. Cameron. It was P/C Chartrand who saw the duffel bag on the back seat of the Jeep, and when he looked in the open bag, saw the knives and another wallet and decided to seize the duffel bag.
Alleged Evidentiary Inconsistencies
[59] The defence points to some purported inconsistencies that Mr. Doody says, when taken together, ought to have the effect of reducing the weight to be given to the police officers’ testimony:
a) The U turn by the Jeep- this evidence is as follows—A/Sgt. Cotnam and P/C Anderson didn’t see the U turn maneuver described by P/C Chartrand. Also, the defence characterizes P/C Chartrand’s testimony about the U turn as unusual because he didn’t see the brake lights come on and the turn was executed with an unrealistically short radius because he didn’t think the vehicle left the road. I do not view these differences in evidence as inconsistencies nor do they operate to reduce my reliability assessment of their evidence. P/C Anderson said he was watching the 911 numbers at the ends of the driveways as he looked for the number for the subject property. His attention was out the side window of the police vehicle, not straight down the road. A/Sgt. Cotnam was a short distance behind the first police vehicle. He may have been too far back to see the maneuver or his sight line may have been obstructed by the police vehicle in front of him. The evidence that he did not see the Jeep execute a U turn is not necessarily an inconsistency, just as it is not an inconsistency that P/C Anderson didn’t see the U turn because his attention was focused to the side of the road as they approached the residence they were looking for. Recall that P/C Chartrand was driving and it makes sense that his attention would have been more focused on the road ahead. Whether the brake lights came on, or whether P/C Chartrand remembers them coming on, is an insignificant detail. Similarly, it does not surprise me that the Jeep was able to execute a U turn without leaving the road which could well include the margins or shoulders of the road on both sides. Recall as well that it was nighttime in an area that was not well-lit.
b) The manner in which the Jeep was stopped— this evidence is as follows—P/C Chartrand said he directed the police vehicle into the path of the Jeep which had just executed a U turn and was now oncoming in the northbound lane. P/C Anderson said he didn’t think the vehicle he was in crossed into the northbound lane. A/Sgt. Cotnam said P/C Chartrand pulled into the northbound lane and the Jeep went onto the shoulder of the road. P/C Chartrand thinks he was near the centerline of the road. In my view these differences in recollection are inconsequential.
c) The positioning of the police vehicles—this evidence is as follows—A/Sgt. Cotnam said he positioned his vehicle in front of the Jeep. He described it as nose to nose. When P/C Chartrand returned a brief time later, he pulled in behind the Jeep as if to box it in. P/C Chartrand said the Cotnam vehicle was just ahead of the Jeep facing it and Chartrand came up behind the Jeep. P/C Anderson thought the Cotnam vehicle was behind the Jeep and the Chartrand vehicle was also behind the Jeep, possibly beside it, but he can’t recall exactly where. P/C Bourgoin seemed unsure of the positioning of the police vehicles. Again, in my view, these differences in recollection are inconsequential.
d) The sequence of events surrounding the Jeep ignition key—this evidence is as follows—A/Sgt. Cotnam said he took the key from Mr. Cameron and placed it on the hood of the Jeep. After Mr. Cameron was arrested P/C Chartrand took possession of the key but he didn’t remember doing so. Later, when A/Sgt. Cotnam asked him in a radio transmission about the location of the key, P/C Chartrand discovered he had the key on his belt. The radio exchange was as follows, (Cotnam) “The next time you pass by that vehicle, just check on the hood. I had them there and I thought I took them off and gave them to you, but I don’t have them”. (Chartrand) “They’re a little busy there. I found them, they were on my belt, 10-4”. D/C Nisbet’s recollection was that he obtained the vehicle key from A/Sgt. Cotnam back at the detachment at 04:13 hours. The defence suggests that the failure to recollect details regarding the location of the ignition key detracts from the reliability of police evidence. Again, I am not sure that D/C Nisbet’s evidence that he got the key from A/Sgt. Cotnam is an inconsistency; it may simply be a gap in the evidence respecting how the key came back into the possession of A/Sgt. Cotnam after everyone had returned to the detachment. In either case this issue does not operate to reduce the reliability of other, more significant, evidence.
e) The location where P/C Anderson placed Mr. Cameron in handcuffs—this evidence is as follows— After P/C Chartrand arrested Mr. Cameron, P/C Anderson frisked Mr. Cameron and placed him in handcuffs. P/C Anderson’s recollection was that he did so in front of A/Sgt. Cotnam’s patrol vehicle and his notes confirm this. P/C Chartrand said he thought that the handcuffing took place at the rear of the vehicle that Chartrand was driving, about two car lengths from the position described by P/C Anderson. This evidence cannot be reconciled. I prefer the evidence of P/C Anderson on this point. He was the one who placed Mr. Cameron in handcuffs and there is an entry in his duty book about where he did this. This discrepancy does not prompt me to discount the reliability of P/C Chartrand’s other evidence.
Search Warrant Issues
The Further Police Investigation
[60] When D/C Bernie Dikih prepared the ITOs for a variety of search warrants about a week after the incident, the police investigation had yielded more information. They were told by the Tettemers that there were two masked and armed intruders who confronted them on the night in question. The initial report that there were up to four intruders was an error. One of the intruders was armed with a rifle and the other had a knife and a sledgehammer. They demanded that a safe in the house be opened and wanted cash. Both suspects fled on foot.
[61] At about 5 a.m. on May 31, 2017 one of them, Christopher Gilmour, emerged from a wooded area near the subject residence and surrendered to police. He was in possession of a Samsung Galaxy cell phone at the time of his arrest. Mr. Gilmour made several admissions to police. He disclosed that he was in the company of a still unidentified second intruder when they entered the victims’ residence. He acknowledged knowing Mr. Cameron. He said that they had been together the night before the incident at a cottage on Carson Lake. He said Mr. Cameron drove him to the scene of the robbery. Mr. Gilmour said that he was the intruder who was carrying a knife and he admitted striking the male resident. The other intruder had the rifle. When the intruders left the residence they split up and went into the woods in different directions.
[62] On June 2, 2017 Samantha Chrest, Christopher Gilmour’s girlfriend, told police that during the evening of May 30, 2017 she saw her boyfriend and Mr. Cameron together outside her apartment in Pembroke. Mr. Cameron was driving a black Jeep. When she returned home from walking her dog, Mr. Gilmour was gone. At about 01:33 hours she received a call from Gilmour on his cell phone and he told her that “something had gone wrong, I am sorry, I’m not coming home, I should have believed you and listened to you”. Ms. Chrest received a second call from Gilmour about three hours later at 04:35 hours at which time he told her that he was “walking out to the cops”.
[63] On June 7, 2017 D/C Dikih spoke with D/C Kyle Kanstain of the Technical Crime Unit of the OPP regarding the GPS device installed in the Jeep. D/C Kanstain referred D/C Dikih to the TCU website for information about obtaining and analyzing data from the GPS unit. This work, if authorized, is performed at OPP headquarters in Orillia, Ontario. The website also provided information about how cell phones work and the kind of information that they are capable of storing including subscriber information, messages sent and received, photographs, contact lists, telephone call logs and internet activity.
[64] On June 8, 2017 D/C Dikih applied for search warrants for the two cell phones and the GPS device in the Jeep and a production order against Rogers, Bell and Telus for a “cell tower dump”. The request was contained in one ITO. The requested warrants and production order were granted. The defence says that the affiant failed to provide reasonable and probable grounds to support the issuance of these authorizations. I will deal with each in turn.
The Cell Phones
[65] The police must provide sufficient information in the ITO to satisfy the issuing justice that there are reasonable and probable grounds to support the request. Suspicion and hunches are not enough.
[66] The onus is on the party challenging a search warrant to demonstrate on a balance of probabilities that the warrant was improperly granted.
[67] On a review of the granting of the authorizations, the reviewing justice shall not substitute his or her own assessment of whether the warrant ought to have issued. The information provided by the affiant is to be reviewed to determine whether there is evidence upon which the justice of the peace could determine that a search warrant ought to be issued.
[68] The justice of the peace is entitled to draw reasonable inferences from the stated facts and the affiant is not obliged to underline the obvious.
[69] The appropriate standard of reasonable or credibly-based probability envisions a practical, non-technical and common sense probability as to the existence of the facts and inferences asserted.
[70] In this case there is no question that a crime had been committed (which is not always the case) when the search warrant was requested and the identity of one of the intruders was known. He was arrested with the Samsung cell phone in his possession. Mr. Cameron was arrested in very close proximity to the residence just after the intruders were reported to have left. There is both temporal and locational proximity to the crime. In Mr. Cameron’s case, there was an iPhone in the vehicle when he was arrested. The affiant provides evidence of the type of information that a search of the cell phone will disclose. The request for a warrant was not just a fishing expedition. The information was adequate to support the issuance of a search warrant for the cell phones.
[71] Crown counsel also contends that Mr. Cameron does not have a Charter-protected privacy interest in Mr. Gilmour’s Samsung phone and makes the point that the iPhone did not belong to Mr. Cameron.
[72] The search warrant for the cell phones expired at 9 p.m. on June 12, 2017. The phones were secured in an evidence locker at the detachment when they were seized. D/C Nisbet said that he executed the search warrant on that date and marked the face of the warrant as having been executed on that date.
[73] In cross-examination it was noted that there was no written record of the time when the search warrant was executed. D/C Nibet said that he went off duty that day at about 8:15 p.m. and he executed the search warrant at the detachment before he went off duty. I accept this evidence.
[74] D/C Mark Young extracted data from the iPhone on June 19, 2017. On September 14, 2017 he received a “chip-off extraction” for the Samsung phone.
[75] The defence says that based on this evidence, the “seizure” of the iPhone was completed 7 days after the expiration of the warrant and the “seizure” of the Samsung phone was completed 95 days after the expiration of the warrant.
[76] I do not agree with this characterization of the situation. Upon the search warrant being executed at the detachment on June 12th, the subsequent data analysis need not be completed within the time frame set out in the warrant (J. Fontana and D. Keeshan, Law of Search and Seizure in Canada, 11th ed., (Markham, Ont.:LexisNexis, 2019 at p. 77).
The GPS Device
[77] I come to the same conclusion respecting the request to obtain information from the GPS device that was installed in the Jeep. In addition to Mr. Cameron’s temporal and locational proximity to the subject property, his name was on the rental agreement for the vehicle. It was known that he and Mr. Gilmour had been together, that he had driven Gilmour to the residence and that Gilmour’s identification was found in a wallet in the Jeep.
[78] I would suggest that it is unrealistic to expect the affiant to state with certainty in the ITO that relevant information would be obtained from the data stored on the device. He explained the basis for his belief that relevant information to assist the investigation would probably be found in the device’s recorded data.
[79] The defence notes that while the ITO says that a search warrant for the GPS unit in the Jeep, if granted, would be executed on June 9th, it was not. The warrant as authorized extended the timeframe in which a seizure could occur from June 9th to 9 p.m. on June 12th, 2017. D/C Nisbet recorded on the face of the search warrant that it was executed on June 12th at a time when the Jeep was stored in a secure compound at the detachment. I accept this evidence.
The Production Order
[80] The production order requested stored data from Rogers Communications, Bell Canada and Telus Communications for cell towers operated by any of these three service providers in the vicinity of the subject residence for a 15-hour period around the time of the crime.
[81] The ITO referred in a cursory manner to the recommendations of Sproat, J. in R. v. Rogers Communications, 2016 ONSC 70 and to R. v. Vu, 2013 SCC 60, [2013] 3 SCR 657 regarding the need to ensure that a search is reasonable and no more intrusive than necessary. The affiant went on to say, “Having this in mind I determined that the least intrusive and most reasonable time window for the “cell dump” data would be between 11:00 p.m., 30 May 2017 (approximately one hour prior to the incident time of 00:07, 31 May 2017) to 2 p.m., 31 May 2017.” This statement was followed by several lines of redaction in the copy of the ITO that was disclosed. It is not clear to me why the cell dump would need to stretch into the mid-afternoon of May 31st.
[82] Although the requested production order was granted, the order was not provided to the service providers promptly, with the result that a new production order had to be sought. A further ITO dated August 14, 2017 incorporated the substance of the earlier ITO and included an explanation regarding why a new authorization was required.
[83] The defence says that the affiant failed to demonstrate adequate grounds for the issuance of a production order and referred to the case of R. v. Mahmood, 2008 CanLII 51774 (ON SC). In Mahmood, two perpetrators managed to gain entry to a jewelry store during business hours then, after letting a third accomplice into the store, made off with a valuable haul of jewelry and cash. The investigators had no leads respecting the identity of the suspects. They had no evidence that the suspects had used cell phones in the commission of the robbery, or that the suspects had cell phones on their person when the robbery was committed. In finding the police did not have sufficient evidence to justify their request for a cell tower dump, Quigley J. commented that the investigators:
could have waited to seek this initial warrant until they had cogent and credibly probative evidence that cell-phones had been used by the perpetrators of that crime. They could have waited until traditional police investigation techniques yielded adequate information about real suspects that would have permitted them to seek and obtain cellular telephone records under s. 492.2 of the Code” (para. 94)
[84] The defence also says that the omission of a statement by the affiant that he had RPG to believe that the data requested will afford evidence of the commission of the offence is a glaring omission. The issue here is not whether an offence has or will be committed. That is a known fact. In the present case, the police knew the identity of two suspects, one of whom made significant admissions to the police, both of whom had cell phones in their possession at the relevant time and at least one of the suspects, Mr. Gilmour, was known to have used his phone to communicate with his girlfriend on the night in question. In my view, a reasonable inference may be drawn from the evidence provided that a cell tower dump would probably reveal evidence of communications between the suspects that would assist the investigation.
[85] One of the issues that preoccupied the reviewing judges in both Mahmood and Rogers Communications, supra, is that production orders for cell towers in downtown Toronto can capture vast quantities of private information that is not relevant to the investigation. There is no evidence of the volume of data that was captured by the production order in this case. It seems obvious that cell towers near the subject residence on Combermere Road would have only a miniscule fraction of the volume handled by cell towers in large urban areas but a precise comparison is not available.
The Report to Justice Issue
[86] Following the seizure of the two cell phones and the Jeep on May 31, 2017, a report to justice was filed on June 2, 2017 for these items. The justice of the peace who received the report ordered the detention of this property “until the completion of all proceedings, as charges have been laid”.
[87] Subsequently, the same items became the subject matter of the search warrants previously referred to. It will be recalled that D/C Nisbet said that he executed the search warrants while the items were in police custody on June 12, 2017. A report to justice was not filed as soon as practicable following the execution of the search warrants.
[88] About three years later the police were made aware that a report to justice had not been filed and they attempted to do so. The justice of the peace who received the report refused to sign it under the belief that as more than 12 months had passed, he did not have jurisdiction to accept the report. Subsequently a report was accepted March, J. of the Ontario Court of Justice on June 29, 2020 that authorized the detention of the property until the completion of all proceedings.
[89] In R. v. Garcia-Machado, 2015 ONCA 569 the police obtained a search warrant authorizing the seizure of hospital records and a vial of blood drawn for medical purposes from an accused who was charged with impaired driving causing bodily harm after he and a passenger were injured in a car accident. A report to justice was filed about 15 weeks later. The officer was unaware that s. 489.1 of the Code required him to prepare a report to justice “as soon as practicable”. Hoy, A.C.J.O. concluded that the constable’s failure to file a timely report breached s. 8 of the Charter but that the trial judge erred in excluding the evidence by failing to consider several factors, including the nature of the privacy interest at the time of the breach, whether the owner was deprived of the use and enjoyment of the item and the “inevitability factor”, that is, had the requisite report been made as soon as practicable, the justice of the peace would have undoubtedly ordered detention of the evidence.
[90] Bennett, J.A. conducted a thorough review of the interplay between the Criminal Code provisions respecting the report to justice requirements and s. 8 of the Charter in R. v. Craig, 2016 BCCA 154, 2016 B.C.C.A. 154. It is clear that s. 8 continues to apply to protect a person’s privacy rights in seized items during detention of those items.
[91] In my view, however, the question of whether a second report to justice for the same items was required is not free from doubt. The purpose of a report to justice is to ensure that the items seized remain under judicial authority. When the initial report to justice was filed on June 2, 2017 the justice of the peace authorized the detention of the two cell phones and the black 2017 Jeep “until the completion of all proceedings, as charges have been laid”. Moreover, when D/C Dikih applied for the search warrant for these items on June 8, 2017, the authorizing justice of the peace would have already balanced the privacy interest of the accused against the interest of the state in investigating the crime (Vu, supra, para. 46).
[92] Notwithstanding this uncertainly, I am inclined to assume for the purposes of this application that Mr. Cameron’s Charter interests were breached by the omission and that an analysis under s. 24(2) of the Charter as to whether evidence ought to be excluded as a result of the breach is appropriate.
[93] The application of s. 24(2) to determine whether evidence should be excluded as a result of a Charter breach engages the following considerations:
a) The seriousness of the Charter-infringing state conduct; b) Impact of the breach on Mr. Cameron’s the Charter-protected interests and, c) Society’s interest in an adjudication on the merits.
[94] The seriousness of the Charter-infringing conduct- It is clear from the recent cases that the failure to file a report to justice is more that an administrative oversight and Charter-protected interests are engaged. If the number of recent cases on this issue is any indication, the necessity of a report is missed with some regularity. Admitting evidence in the face of Charter breaches risks sending the message that Charter rights count for little. In the circumstances here, however, the case for discounting the seriousness of the conduct is compelling. Judicial oversight had been exercised in two ways: on the initial return following the June 2, 2017 report and later, pursuant to a search warrant authorization. On the “inevitability factor” consideration, it is not open to serious debate whether a timely report would have resulted in any other outcome but the continued detention of the property. This factor weighs in favour of admission of the evidence obtained as a result of the searches.
[95] Impact on Mr. Cameron’s Charter-protected interests- Neither of the cell phones nor the vehicle actually belonged to Mr. Cameron. His privacy interests were highly-attenuated, even accepting that he may have had a privacy interest in the communications sent from the iPhone in his possession to the Samsung cell phone belonging to Mr. Gilmour. This factor weighs in favour of admission of evidence.
[96] Society’s interest in an adjudication on the merits- The offences involved in this case are serious. Weapons were used to facilitate the robbery and an injury was sustained as a result of violence perpetrated by one of the intruders. The crime involved an intrusion at night into a private residence. The evidence obtained is reliable and important to the Crown’s case. This is not a situation where deliberate and egregious police conduct severely impacted Mr. Cameron’s protected interests. This factor also weighs in favour of admission of evidence.
Disposition
[97] The applications are dismissed.
Mr. Justice Martin James
DATE RELEASED: March 22, 2021