FACTUAL BACKGROUND AND OVERVIEW

[1] Daylo Robinson, Rebecca Horton and Tyler Vickers stand charged with numerous counts under the Criminal Code, R.S.C. 1985, c. C-46, alleging offences related to human trafficking. Two complainants, W and D, allege that they were forced into providing sexual services for financial gain at the behest of the accused.

[2] On 10 May 2018, members of the Human Trafficking Enforcement Team arrested the applicants after W reported the allegations to police. The police seized Ms. Horton’s mobile phone and extracted data including various text messages between Ms. Horton and Mr. Robinson. The Crown intends to use these communications to show that both were involved in human trafficking.

[3] Ms. Horton and Mr. Robinson seek exclusion of the messages on the basis that their rights under s. 8 of the Charter of Rights and Freedoms were violated when the police searched the phone.

[4] The following reasons explain why their application is dismissed.

Does Mr. Robinson Have Standing?

[5] Even though the data was found on Ms. Horton’s phone, the Crown concedes that following the Supreme Court of Canada’s decision in R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, Mr. Robinson has standing to challenge the admission of the evidence under s. 8 of the Charter.

The Charter Application

[6] Ms. Horton and Mr. Robinson apply to exclude the extracted data from their trial alleging that it was obtained in breach of their s. 8 Charter rights. The alleged breaches can be grouped as follows:

The police failed to file a Report to Justice in compliance with the requirements of the Criminal Code when they seized the phone
The police failed to file a second separate Report to Justice when they extracted data from the phone
The police unlawfully searched the phone without a warrant when they first obtained it
The police failed to comply with the terms of the “locker warrant” used to seize the phone when they commenced the extraction process
The warrant used to search the phone was facially invalid

[7] The applicants argue that as a result of these breaches the evidence should be excluded pursuant to s. 24(2) of the Charter.

Was the Report to Justice Filed in Accordance with the Criminal Code?

[8] Section 489.1(1) of the Criminal Code reads:

489.1 (1) Subject to this or any other Act of Parliament, where a peace officer has seized anything under a warrant issued under this Act or under section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,

(a) where the peace officer is satisfied,

(i) that there is no dispute as to who is lawfully entitled to possession of the thing seized, and

(ii) that the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding,

return the thing seized, on being issued a receipt therefor, to the person lawfully entitled to its possession and report to the justice who issued the warrant or some other justice for the same territorial division or, if no warrant was issued, a justice having jurisdiction in respect of the matter, that he has done so; or

(b) where the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii), (i) bring the thing seized before the justice referred to in paragraph (a), or

(ii) report to the justice that he has seized the thing and is detaining it or causing it to be detained

to be dealt with by the justice in accordance with subsection 490(1).

[9] This section mandates that if the police are satisfied that the item seized is required for investigation or use at a proceeding, they must file a Report to Justice notifying a justice of the seizure and detention of that item. Otherwise, the item must be returned to its lawful owner.

[10] The section applies to both warrantless seizures and items held by the police pursuant to the execution of a warrant. A comprehensive supervisory scheme is set out in s. 490 of the Code, which requires the justice who receives the report to return the property unless the justice is satisfied that detention is required for investigation or a court hearing. The justice may extend the detention but only up to a year, after which an order from a Superior Court of Justice judge is required: Code, s. 490(3).

[11] The courts have recognised that this procedure fulfils an important function of judicial oversight of items seized and held by the police: R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 45; R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, at paras. 15, 55; R. v. Backhouse (2005), 2005 4937 (ON CA), 194 C.C.C. (3d) 1 (Ont. C.A.), at para. 112.

[12] However, as the phrase itself makes clear, there is flexibility built into the requirement of filing the report “as soon as is practicable”. Evaluation of this stipulation necessitates a contextual and fact specific inquiry which “should only be answered after a careful review of all of the evidence, including any explanations for why the report was filed when it was”: Canary, at para. 47, citing R. v. Kift, 2016 ONCA 374, 349 O.A.C. 239, at para. 10.

[13] In this case, Ms. Horton’s phone was seized on 10 May 2018 with the Report to Justice being sent to the common informant on 25 May 2018. The Report to Justice was endorsed by a Justice of the Peace on 29 May 2018. It is unclear what happened between 25 May 2018 and 29 May 2018. However, the applicants rely on the 14-day delay as being a breach of their Charter rights.

[14] I do not agree. As I have already observed, the requirement of “as soon as is practicable” is a flexible one. In United States v. Viscomi, 2016 ONSC 5423, the court found a 28 day delay to be within the statutory time period. Cases such as Garcia-Machado can be distinguished as the period of time was much longer (3 months) in a less complex case. Here, 14 days was not unreasonable in the circumstances.

[15] Although the applicants rely on R. v. Neill, 2018 ONSC 5323, where a seven day delay was found to be unreasonable and a breach of the accused’s Charter rights, that case is distinguishable. There, Coroza J., as he then was, was alive to the fact that the police had seized the phone under exigent circumstances. That urgency placed an obligation on the police to file the Report to Justice with greater haste.

[16] The spirit and purpose of the section must also be considered. Section 489.1(1) is a mechanism which ensures judicial supervision of items seized and the return of those items if not needed. In other words, it prevents the police from unduly and unnecessarily retaining items lawfully belonging to their owner and ensuring their return. In this case, the phones were not likely to be returned to Ms. Horton in the intervening 14 days because the police intended to extract information from the device.

[17] Accordingly, I find no Charter breach.

The Failure to Provide a Second Report to Justice

[18] On 14 March 2019, Detective Constable Manny Flores began the extraction process on Ms. Horton’s phone. On 4 September 2019, two extractions were performed. One day later Detective Constable Flores generated an extraction report using the Cellebrite Physical Analyzer. However, no second Report to Justice, covering the newly obtained data, was filed. The applicants submit that the failure to provide a second report constituted a breach of their Charter rights.

[19] I disagree.

[20] Police had already filed a report for the phone - the “thing” seized from Ms. Horton. That phone had been seized for the purposes of acquiring data which might prove to be of evidentiary value in the charges against Ms. Horton.

[21] This process is akin to seizing clothing for the purposes of finding DNA or other substances. A second report would not be required for any information disclosed by the clothing’s analysis. Similarly, if documents are seized, and sent for a forensic examination, any information gleaned from the facts and figures contained therein would not require a second report.

[22] As the Crown correctly argues the physical item seized is the “thing” specified in s. 489.1(1), not the information that it later reveals. In this case, the item was the phone. I can find no reason to justify the separation of the phone from the data contained therein.

[23] Although the applicants rely on prior case law from this court, such as R. v. Otto, 2019 ONSC 2514, and R. v. D’Souza, 2016 ONSC 5855, it is apparent that the court in those cases found a second report was required on the basis of a Crown concession. It is also noteworthy that notwithstanding that concession, the court in D’Souza, at para. 168, declined to find a Charter breach.

[24] It is also unclear what the filing of a second report would achieve. As described, the Report to Justice process is a way of ensuring supervision of the seized item and its return to the owner when it is no longer needed. I ask, rhetorically, what would the justice do with the extracted data?

[25] The applicants rely on R. v. Merritt, 2017 ONSC 1508, as authority for the proposition that there is a distinction between the item seized and data gleaned from that device. I acknowledge that in Merritt the court found that a second report was required for data obtained from a USB key that had been seized and that the court in Neill followed that decision. However, in declining to exclude the evidence in Neill, Coroza J. made the following observation, at para. 99:

I acknowledge that the law remains unsettled as to whether, in the case of a cell phone or a computer, a peace officer must file a Report to Justice outlining every piece of data found on the device seized. Indeed, there is very little authority dealing with this issue. Indeed, I acknowledge that there is a strong argument that the regime was not meant for searches of data. It is debatable whether Cst. Martin should have or ought to have known that he was required to submit a report to a justice regarding the seizure of the items, photographs and images that had been seized.

[26] I agree with the Crown that these cases have been overtaken by the Court of Appeal for Ontario’s holding in R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241, at paras. 132-138, that Blackberries and other electronic devices were not a “place” to be searched and that a second analysis of data extracted from the device did not constitute a new “search” but the same search authorised by the warrant that allowed seizure of the device.

[27] Here, the data obtained from the phone was not a “thing” and did not require a second Report to Justice.

Did Detective Constable Morden Conduct an Unlawful Search?

[28] By agreed statement of facts, the parties agree that on 15 May 2018, Detective Constable Todd Morden, an officer assigned to the Technological Crimes section of the Toronto Police Service, took possession of Ms. Horton’s phone. After reviewing the search warrant authorising the search of Unit 502, 200 Queen Street South, Mississauga, Morden began the intake process by opening the property bag containing the phone.

[29] After taking the phone out of the bag, Morden removed the SIM card and checked to see if the iPhone was locked. After confirming that it was password protected, Morden replaced the phone into the property bag and had no further interaction with it.

[30] It is agreed that Morden had no contact with any of the investigating officers prior to or during the intake process.

[31] The applicants allege that Morden conducted a warrantless search of Ms. Horton’s phone which breached their s. 8 rights.

[32] I reject this contention.

[33] In R. v. Sandhu (1993), 1993 1429 (BC CA), 82 C.C.C. (3d) 236 (B.C.C.A.), at p. 247, leave to appeal refused (1993) 84 CCC (3d) vi, Southin J.A. offered the following as a definition of “search” within the Charter context:

“Search” is a common English word. We speak of search for a person as in search for a child who is lost. We speak of a search for a culprit seen running from the scene of a crime and lost sight of. But in this section of the Charter, I think the word is about looking for things (and in this context I use the word “things” to include words spoken) to be used as evidence of a crime. It is not about going on the property of A in order to arrest B in circumstances in which B may be arrested without a warrant.

[34] In R. v. Evans, 1996 248 (SCC), [1996] 1 S.C.R. 8, at paras. 10 and 45-48, the Court indicated that not every action taken by the police, even if investigatory in nature, constitutes a search. The Court indicated that the fundamental objective of s. 8 was to preserve the reasonable privacy interests of individuals. As made clear by Sopinka J., at para. 11:

It is only where a person's reasonable expectations of privacy are somehow diminished by an investigatory technique that s. 8 of the Charter comes into play. As a result, not every form of examination conducted by the government will constitute a "search" for constitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a "search" within the meaning of s. 8.

[35] These sentiments were echoed by Major J., at para. 48, where he stated:

The word "search" is defined by The Oxford English Dictionary (2nd ed. 1989), vol. XIV as: "1. a. The action or an act of searching; examination or scrutiny for the purpose of finding a person or thing....Also, investigation of a question; effort to ascertain something." In this sense, every investigatory method used by the police will in some measure constitute a "search". However, the scope of s. 8 is much narrower than that, and protects individuals only against police conduct which violates a reasonable expectation of privacy. To hold that every police inquiry or question constitutes a search under s. 8 would disregard entirely the public's interest in law enforcement in favour of an absolute but unrealistic right of privacy of all individuals against any state incursion however moderate. This is not the intent or the effect of s. 8.

[36] In R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, police used an infra-red camera without judicial authorisation, and discovered an unusual amount of heat rising from the appellant’s home. In dismissing the appellant’s s. 8 application Binnie J. considered a number of factors including whether the technique used permitted the police to draw “any inferences about the precise activity” inside the dwelling: at para. 36. He concluded that since the information obtained - the heat - was non-intrusive and did not touch on “a biographical core of personal information” nor “ten[d] to reveal intimate details of [the appellant’s] lifestyle”, there was no breach of s. 8 as there was no reasonable expectation of privacy in the information revealed by the police activity in question: at paras. 62-63.

[37] Finally, in R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, the Court re-affirmed the principle that s. 8 protects the right to a reasonable expectation of privacy. The Court, at para. 39, re-affirmed that "[t]he issue ought to be framed in terms of the privacy of the area or thing being searched and the potential impact of the search on the person [or thing] being searched, not the nature or identity of the concealed items”: citing R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 32.

[38] Applying these principles, I find that when Detective Constable Morden dealt with the phone there was no search within the meaning of s. 8 of the Charter.

[39] Morden interacted with the phone as part of the intake process. There was no attempt to obtain personal information or any type of private information contained in the phone other than to check that it was password protected. There was no reasonable expectation of privacy in the existence of a SIM card or seeing if the phone was locked. In other words, taking the lawfully seized phone out of the bag to check it in this way as part of the intake process did not infringe on Ms. Horton’s reasonable expectation of privacy. This was exactly the type of non-intrusive inquiry envisaged in Evans.

[40] I conclude that there was no breach of the applicants’ s. 8 rights based on Detective Constable Morden’s actions.

The Locker Warrant

[41] After the police had originally seized Ms. Horton’s phone on her arrest, and it had been placed in a secure locker, they obtained a warrant to search the device for data that might afford evidence in the investigation.

[42] The warrant authorised the police to seize and search the phone between the hours of 9 a.m. and 9 p.m. on 12 March 2018.

[43] The officer charged with extracting the phone data, Detective Constable Flores, removed the phone from the locker at approximately 9:25 p.m. on 12 March 2018.

[44] Comparing the property bag with the description of the item to be searched in the warrant, Detective Constable Flores realised that the number of the property bag described in the warrant did not match that of the property bag containing the phone.

[45] Flores sent an email to the officer in charge of the case, Detective Constable Theresa Curtis, who replied, on 13 March 2019, that the number in the warrant was incorrect and that he did have the correct phone. On 14 March 2019, Flores connected the phone to his computer and began the extraction process. Flores testified that the time taken to crack the phone and complete the process varied and could range from months to possibly even years.

[46] On 4 September 2019, the first extraction of data was reported by Flores with an extraction report being generated the next day.

[47] The applicants launch a two pronged attack on the procedure followed by Detective Constable Flores.

[48] First, they submit that Flores removed the phone from the locker at 9:25 p.m. - 25 minutes after the expiry of the time set by the warrant.

[49] Secondly, they argue that even if Flores had acted to seize the phone within the specified time, he was obliged to search the phone and extract the data within the 12 hour time period specified.

[50] Crown counsel concedes the s. 8 breach committed by Flores in his late retrieval of the phone. However, she argues that the data obtained should be admitted pursuant to s. 24(2) of the Charter.

[51] With respect to the second argument, the Crown submits that the time limit specified in the warrant applied to the seizure of the phone from the locker. Extracting the data within that time frame did not form part of the warrant’s stipulations.

[52] The applicants’ argument that the warrant required the police to complete their search in the time specified must be viewed in light of the wording of the warrant which authorised the police “between the hours of 9:00 a.m. and 9:00 p.m. enter into the premises and to search for the above things, and to bring them before me or some other justice to be dealt with according to law”.

[53] The applicants argue that this wording is in line with previous cases which support their position. They rely on R. v. Little, 2009 41212 (ON SC), [2009] O.J. No. 3278 (S.C.J.); R. v. Perkins, 2013 ONSC 1807; and D’Souza as authorities for their submissions. However, those authorities can readily be distinguished from this case as the warrants in those cases explicitly set out terms and the time period that the device had to be searched within. There was no such explicit requirement in this case.

[54] In R. v. Barwell, [2013] O.J. No. 3743 (C.J.), Paciocco J., as he then was, dealt with a case where, as here, the warrant authorised the police to enter and search for computer drives between the hours of 6:00 a.m. to 9:00 p.m. on a particular day. The police retrieved the computer from the police storage facility and began their examination by recording the serial number. However, they did not examine the drives until the next day. The defence argued that by continuing the search outside the time window, the police had violated the terms of the warrant and the accused’s s. 8 rights.

[55] In dismissing the application, Paciocco J. held that the police complied with the terms of the warrant when they assumed control over the drives by acquiring them from the storage facility during the appropriate time frame: there was no requirement that the forensic examination also take place during specified times. As observed by Paciocco J., at para. 17, “[t]his would be unrealistic. Forensic examinations take time, and it would be counter-productive to the privacy interest to extend search and seizure periods for long periods of time in order to accommodate forensic examinations”.

[56] The reasoning in Barwell was followed by Coroza J. (as he then was) in R. v. Nurse, 2014 ONSC 1779, at paras. 41-53, a case which, as mentioned above, was affirmed on other grounds by the Court of Appeal for Ontario.

[57] The applicants argue that Barwell and Nurse should be distinguished on the grounds that the search at least began within the time period set out in the warrant whereas in this case, Detective Constable Flores only began the extraction process on 14 March 2019.

[58] I find this to be an insignificant distinction. The purpose of the time period set out in the warrant is to ensure the police start the process within that period of time rather than let things linger. The police did this when Detective Constable Flores retrieved the phone from the locker pursuant to the warrant (albeit 25 minutes late).

[59] In R. v. Yabarow, 2019 ONSC 3669, Dambrot J., faced with a similar argument, followed Barwell and Nurse. He added, at para. 48, that “[i]t is desirable that authorizing justices focus on the appropriate time period for a search and seizure, and the time permitted for a forensic examination of things seized be left to the reporting and detention regime in the Code.” What is significant is that in Yabarow, whilst the police assumed control of the item within the time specified in the warrant, the forensic examination of the phone took place over a month later.

[60] A similar view was taken by McCombs J. in Viscomi, at paras. 102-107.

[61] I find that the principles in Barwell, Nurse, Viscomi and Yabarow apply in this case. The warrant authorised searching for and seizing the phone on 12 March 2019. Detective Constable Flores did so when he retrieved it from the locker, although he narrowly missed the time limit. There was no obligation to conduct or commence the forensic examination within the hours specified in the warrant.

[62] Indeed, Flores testified that the data extraction could not be completed in that time frame as the police had to break the phone’s passcode, an extremely time consuming process with no definite time estimate. As pointed out in Barwell, for the applicants’ position to hold sway, the police would have to seek warrants that might specify time limits which last for years.

[63] I would therefore reject the argument that the police had to complete their search of the phone’s data within the time limit specified in the warrant.

Was the Warrant Facially Invalid?

[64] The applicants argue facial invalidity of the warrant on the basis that the police were authorised to search only “the Silver (phone cellular phone in property bag #31874665 and iPhone cellular phone in property Bag #131874666)”. However, Ms. Horton’s phone was contained in a property bag with a different number. The applicants therefore argue that the police searched Ms. Horton’s phone without proper authority.

[65] Detective Constable Flores testified that when he seized the phones, he noticed the discrepancy between the bag numbers and contacted the officer in charge to make sure he had the correct phone. On 13 March 2019, Flores received confirmation that the number contained in the warrant was incorrect and that the seized phone was the one that required forensic examination. As a result, Flores began the data extraction process.

[66] In R. v. Ting, 2016 ONCA 57, 333 C.C.C. (3d) 516, at para. 48, the Court of Appeal for Ontario, found that an “adequate description of the place to be searched is a fundamental component of a search warrant.” There, the police had described a multi-unit building to be searched as a street address without explicitly differentiating the units within the building. Thus the warrant was facially invalid because it had to be “clear and limited on its face with respect to the location to be searched”: Ting, at para. 59.

[67] The Court in Ting explained that the warrant had to describe the thing to be searched and that the Information to Obtain the Warrant (ITO) could not function to validate a facially invalid warrant. At para. 60, the court went on to say: “A function of a warrant is to guide and limit the actions of the police officers. A warrant that is ambiguous cannot perform that function.”

[68] As noted, the applicants, relying on Ting, argue that, on its face, the warrant specified a particular bag number which contained the phone to be searched. Since Ms. Horton’s phone, the one from which Flores extracted data, was not found in a bag with the same number, the police could not search it.

[69] Whilst the ITO cannot be used to save an invalid warrant, the contents of the warrant must be looked at as a whole. Cases such as R. v. Grabowski, 1985 13 (SCC), [1985] 2 S.C.R. 434; R. v. Lachance, 1990 53 (SCC), [1990] 2 S.C.R. 1490; and R. v. Sonne, 2012 ONSC 584, have found that inaccurate or “bad” parts of a warrant may be severed from the “good” leaving the remainder to be assessed for facial validity.

[70] In this case, if the bag number is severed from the warrant, I must look at the remainder to determine if an “adequate description” of the phone was contained within the warrant. Two phones were seized during the investigation: one each from Ms. Horton and Mr. Robinson, whose phone was in a bag correctly described in the warrant. Moreover, Appendix A to the warrant, which formed part of its contents, described the phone to be searched as being an iPhone with a pink and green case, matching the phone that Detective Constable Flores searched.

[71] Finally, Appendix A also made clear that the devices would be used to search for communications between Ms. Horton, Mr. Robinson, Mr. Vickers and W. These phones related to the investigation of Ms. Horton and Mr. Robinson.

[72] The policy considerations in Ting are important: there is a need to avoid ambiguity. Ting was concerned with a warrant that permitted the police to search multiple units under the guise of a single address descriptor. The circumstances of this case are very different.

[73] The description of the phone as well as the fact that it was listed to be searched with Mr. Robinson’s phone narrows the descriptor significantly and does not permit the potential abuse of police power contemplated by the ambiguity in Ting.

[74] Accordingly, I find no breach of the applicants’ s. 8 rights.

Section 24(2) of the Charter

[75] As noted, the Crown concedes that Detective Constable Flores’ seizure of Ms. Horton’s iPhone outside the specified time window constituted a breach of the applicants’ rights. That being the case, I turn to the question of whether the evidence should be excluded under s. 24(2) of the Charter.

[76] In deciding this question, the three-part test in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, directs the reviewing court to evaluate the following three factors:

(a) The seriousness of the police conduct in committing the breach;

(b) The impact of the breach on the applicants’ Charter protected interests; and

[77] In R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, the court found that if the first two inquiries strongly favour exclusion of the evidence, the third “will seldom, if ever, tip the balance in favour of admissibility”. On the other hand, if the first two grounds “provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence”.

[78] Dealing with the first limb of Grant, I find that Flores’ actions in missing the deadline to retrieve the iPhone from the police locker to be on the least serious side of the spectrum. As I have already indicated, the purpose of the time window in the warrant was to ensure that the police began their examination of the phone on the date specified rather than let things linger for an inordinate amount of time. Detective Constable Flores’ seizure of the phone missed the mark by minutes, not days or weeks. Even though this constitutes a breach it does so in the most minimal manner.

[79] The Crown concedes that the search of the phone clearly impacted on the applicants’ Charter protected interests as it gave the police access to their private conversations.

[80] With respect to the third limb, the text messages strongly support the Crown’s position that the applicants were involved in human trafficking. As made clear in Grant the reliability of the evidence is an important factor when evaluating the third limb. Exclusion of this type of evidence would undermine the truth seeking function of the justice system and bring the administration of justice into disrepute. Accordingly, the third limb favours admission.

[81] Applying McGuffie, both the first and third limbs of the Grant test strongly favour the admission of the evidence. For these reasons, the data extracted from Ms. Horton’s phone is admissible.

S.A.Q. Akhtar J.

Released: 31 March 2021

COURT FILE NO.: CR-20-10000202-0000

DATE: 20210331

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DAYLO ROBINSON, REBECCA HORTON AND TYLER VICKERS

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.

R. v. Robinson, 2021 ONSC 2446

Case Summary

FACTUAL BACKGROUND AND OVERVIEW

Does Mr. Robinson Have Standing?

The Charter Application

Was the Report to Justice Filed in Accordance with the Criminal Code?

The Failure to Provide a Second Report to Justice

Did Detective Constable Morden Conduct an Unlawful Search?

The Locker Warrant

Was the Warrant Facially Invalid?

Section 24(2) of the Charter

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 2