COURT FILE NO.: YC-20-8000000-5-0000

YC-20-8000000-6-0000

DATE: 20210408

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

T.I.

M. Cole and P. Santora, for the Crown

M. Salih and E. Brownscombe, for T.I.

HEARD: 15-16 February 2021

PUBLICATION BAN:

s.110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED-(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

s. 129. NO SUBSEQUENT DISCLOSURE- No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

OFFENCES - Every person who contravenes subsection 110(1) (identity of offender not to be published), 111 (1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

s.a.Q. akhtar j.

RULING #1 - THE DURHAM SEARCH WARRANT

FACTUAL BACKGROUND AND OVERVIEW

The Crown’s Allegations

[1] The applicant, T.I., stands charged with second degree murder.

[2] On 30 May 2018, police were called to a shooting at Dundas Square in Toronto. When they arrived, they found an 18 year old male, Israel Edwards, laying on the ground. Mr. Edwards was transported to hospital where he was pronounced dead on arrival. A subsequent post-mortem examination concluded that Mr. Edwards had died from a single gunshot wound to the chest.

[3] Police retrieved CCTV camera footage overlooking the area of the shooting. The recordings captured three males who had left a Tim Hortons located at 2 Queen Street East walking northbound on the east side of Yonge Street near Dundas Square. The Crown alleges that these three males were the applicant, and his friends, M.M. and M.H.

[4] This group encountered another male, Aaron Stewart, who was with the deceased that day. The CCTV footage showed the deceased walk towards the group and to the left of Stewart. An altercation ensued, and Mr. Stewart pushed M.M. in the face causing him to stagger backwards. Almost immediately, a tall male wearing a grey hooded jacket and white sneakers, alleged by the Crown to be the applicant, pulled out a gun and began firing at Mr. Stewart and Mr. Edwards. Mr. Stewart and the rest of the group fled the scene, as did the shooter. Mr. Edwards, hit by one of the bullets, fell to the ground.

[5] During the course of their investigation, police released a series of internal bulletins in the hope of identifying the shooter from the CCTV footage. A Durham police officer, Detective Constable Van Belleghem, who had been involved in another investigation relating to M.M., recognised him on the video. Van Belleghem also recalled seeing the shooter in images found in M.M.’s phone that had previously been seized after the execution of a search warrant (the Durham warrant).

[6] A subsequent police check revealed the applicant to be one of M.M.’s known associates. Photos taken from M.M.’s phone were submitted for facial recognition analysis, the results of which returned the applicant’s name and date of birth.

[7] The Crown alleges that the applicant is depicted in many of the images and videos found on M.M.’s phone. It seeks to use those images to prove the applicant is the shooter using the principles set out in R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197.

[8] The applicant submits that the Durham warrant could not have lawfully issued, such that the resultant search breached his rights under s. 8 of the Charter of Rights and Freedoms, and seeks exclusion of the evidence pursuant to s. 24(2).

The Durham Warrant

[9] On 15 June 2018, Brock Tate was shot twice in the third-floor hallway of an apartment building, at 101 White Oaks Court, in Whitby. Mr. Tate was visiting the mother of his children, Megan Bayes, at one of the units in the building. Mr. Tate had met Ms. Bayes at a bar earlier in the evening and returned with her to her apartment so that he could visit his daughter. When they arrived, there were a number of other people present, including a man later identified as M.M.

[10] When Mr. Tate left Ms. Bayes’ unit to visit another friend who lived in the building, M.M. followed and shot Mr. Tate twice before fleeing.

[11] Ms. Bayes told the police that after Mr. Tate exited the apartment, M.M. also left and, after 30 seconds, she heard “loud pops”. When Ms. Bayes ran into the hallway she saw smoke and Mr. Tate about to fall down. She also saw M.M. fleeing the scene. Afterwards, Ms. Bayes picked out M.M. from a photo line-up when asked to identify the shooter.

[12] Other witnesses also confirmed Ms. Bayes’ account of events telling the police that M.M. had arrived whilst Mr. Tate and Ms. Bayes were out. They confirmed that M.M. was in the apartment when Mr. Tate arrived to see his daughter.

[13] When police viewed the security video, they saw a man entering the building wearing clothing similar to the description of M.M.’s clothing provided by witnesses. The same male was seen running out six minutes after Mr. Tate and Ms. Bayes had arrived.

[14] On 16 June 2018, police arrested M.M. and seized an iPhone that he was carrying. On 21 June 2018, police obtained a warrant to search the phone for photographs and videos and extracted a number of images and recordings from the device.

The Toronto Warrant

[15] On 6 June 2018, a police bulletin was circulated with images of the group seen on the CCTV footage from Dundas Square. As discussed, Detective Constable Van Belleghem recognised the group from images taken from M.M.’s phone. He made copies of the photos and videos and sent them to the Toronto police.

[16] On 21 June 2018, a second warrant was issued authorising the Toronto police to search M.M.’s phone for evidence relating to the Dundas Square shooting.

The Alleged Charter Violations

[17] As noted, the Crown seeks to adduce numerous images and videos from M.M.’s phone to demonstrate the association between the applicant, M.M. and M.H.. They also intend to adduce the images to allow the trier of fact to compare the applicant’s likeness and those of his friends to the Dundas Square footage. Witnesses will testify that all three males have a long standing friendship.

[18] The applicant argues that even though the phone belonged to M.M., he has standing to challenge the admission of evidence pursuant to the Supreme Court of Canada decision in R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608. Secondly, he argues that the Durham warrant could not have issued because the Information to Obtain the Warrant (ITO) was deficient. If that is shown to be the case, then the Toronto warrant, obtained using the Durham warrant, must also be found to be invalid. Finally, the applicant submits that in light of the s. 8 breach, the images and videos must be excluded under s. 24(2) of the Charter.

[19] The Crown opposes the applicant’s standing to challenge the Durham warrant. It further argues that if standing is granted, the warrant was validly issued, having already been found to be Charter compliant by another court. Finally, the Crown submits that if this court finds a breach, the evidence should be admitted under s. 24(2).

DOES THE APPLICANT HAVE STANDING?

[20] The applicant submits that he has standing to challenge admission of the evidence found on M.M.’s phone.

[21] In Marakah, a majority of the Supreme Court of Canada held that a sender of text messages held on the recipient’s phone was able to mount a Charter argument that their s. 8 rights had been breached. The majority found that the appellant had a reasonable expectation of privacy in the texts and that the expectation was objectively reasonable. At para. 11, the majority identified four lines of inquiry to assess whether the claimant has a reasonable expectation of privacy:

What was the subject matter of the alleged search?
Did the claimant have a direct interest in the subject matter?
Did the claimant have a subjective expectation of privacy in the subject matter?
If so, was the claimant’s subjective expectation of privacy objectively reasonable?

[22] In Marakah, the subject matter was the electronic communication between the appellant and the phone’s owner. The appellant had a direct interest as he was a participant in that conversation. There was a subjective expectation of privacy in the messages as the appellant testified that he expected the contents to remain private. Moreover, he had asked the owner of the phone to delete their conversations.

[23] In order to determine whether the subjective expectation of privacy was objectively reasonable, three factors need to be assessed: (1) the place where the search occurred; (2) the private nature of the subject matter, i.e., whether the informational content of the electronic conversation revealed details of the claimant’s lifestyle or information of a biographic nature; and (3) control over the subject matter.

[24] The majority in Marakah made clear, at paras. 4-5, that a text message would not always attract a reasonable expectation of privacy but that this was a matter that required evaluation on a case-by-case basis.

[25] In R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, the Court held that an individual had a reasonable expectation of privacy in text messages stored by their mobile phone provider. Accordingly, the police required a production order to gain access to that information.

[26] The applicant also relies on R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, for the proposition that the principle of reasonable expectation of privacy in s. 8 extends to public places.

[27] On this point, I do not agree. In Jarvis, the Supreme Court of Canada was defining a complainant’s reasonable expectation of privacy within the confines of the offence of voyeurism as defined by s. 162(1) of the Criminal Code, R.S.C. 1985, c. C-46, rather than extending the parameters of the application of the Charter.

[28] The leading case on standing in the s. 8 context is R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, where, at para. 45, the Supreme Court of Canada laid down the following non-exhaustive list of criteria to establish whether a Charter claimant had a reasonable expectation of privacy:

(i) presence at the time of the search;

(ii) possession or control of the property or place searched;

(iii) ownership of the property or place;

(iv) historical use of the property or item;

(v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

[29] I accept the Crown’s contention that Edwards remains the leading case on the issue of standing and reasonable expectation of privacy in s. 8 cases: R. v. Sangster, 2021 ONCA 21, at para. 16; R. v. Greer, 2020 ONCA 795, at para. 78; R. v. Yu, 2019 ONCA 942, 383 C.C.C. (3d) 260, at paras. 63-70; R. v. Van Duong, 2018 ONCA 115, 404 C.R.R. (2d) 281, at paras. 5-6.

[30] Where the issue of standing is in relation to text messages, the appellate case law focusses on Marakah: R. v. N.C., 2019 ONCA 484; R. v. Ritchie, 2018 ONCA 918, 424 C.R.R. (2d) 13. However, I do not think the two cases conflict: the Edwards criteria must be in play when applying the reasonable expectation of privacy criterion set out in Marakah.

[31] Turning to Marakah, the first two components - the subject matter of the alleged search and whether the applicant has a direct interest in that subject matter - are easily dealt with. The Crown correctly concedes that as the applicant is depicted in the photos he has a direct interest in them. The result of this application turns on the applicant’s subjective and objective reasonable expectation of privacy in the images found in the phone.

[32] The applicant claims a subjective expectation of privacy in the photos and videos because they reveal “a host of intimate details and personal life choices” including who he associates with and when; what he does with his associates in private settings; and his involvement in criminal activity, such as carrying a firearm. The applicant argues that these factors accord with those set out in Marakah as assigning a subjective expectation of privacy.

[33] I cannot agree with this submission. In my view, there is a difference between wanting privacy and having a subjective expectation of it.

[34] In Van Duong, the appellants obtained a piece of residential property through fraudulent means and converted it into a laboratory manufacturing methamphetamine. When police executed a search warrant, a month later, the appellants attempted to flee and were arrested. The trial judge, applying Edwards, held that the appellants had no standing to bring a s. 8 Charter claim.

[35] The Court of Appeal for Ontario upheld the decision. At para. 7, the court discussed the distinction between “desired” privacy and an “entitled” expectation of privacy:

Although the application judge found that the appellants had a subjective expectation of privacy, even this seems too generous to the appellants. Allowing the appellants a subjective expectation of privacy, in this instance, would confuse the relevant sense of expectation with desire. "Expectation" can be ambiguous between two meanings, only one of which is relevant to s. 8 analysis. In the first sense, a person has an expectation of privacy where he desires privacy and believes it is unlikely, as a matter of fact, that he will be disturbed. In the second sense, a person has an expectation of privacy where she believes she will be undisturbed because she is entitled to be left undisturbed. In s. 8 jurisprudence, subjective expectation is used in this latter sense. [Emphasis added]

[36] Here, I heard no evidence relating to the applicant’s subjective expectation of privacy. It must also be said that on these facts one would be hard to find.

[37] These were photographs and videos taken by another person in a group setting. There is nothing in any of the images that indicate that the applicant expected privacy let alone believed he was entitled to “be left undisturbed”. There are a multitude of group images and videos with the applicant posing with confidence, seeking attention and playing to the camera. The images leave a clear impression that the applicant knew the images were to be shared by the person who took them.

[38] There is a definite distinction between private text messages and images on a mobile phone. I agree with the applicant that there are situations where photos on a phone might attract a reasonable expectation of privacy. For example, a person posing for intimate or nude pictures taken by a romantic partner would obviously have a subjective and objective expectation of privacy: they would not only desire privacy but be entitled to expect the images to remain private.

[39] That is hardly the applicant’s case.

[40] The applicant’s claim is also fatally flawed when assessing whether any subjective expectation of privacy was objectively reasonable. As discussed, the applicant is manifestly an active participant, posing, singing, and performing for the camera. For example, on one occasion he flamboyantly brandishes a gun on video. On another he is seen looking at the camera waving money about in a swaggering, boastful manner. This is hardly an image which attracts the privacy attributes referred to in Marakah.

[41] Here, the informational aspect of the images is hardly private in the sense that it reveals lifestyle information that the appellant would wish to keep private. The images are taken in public view of those in attendance. As I have already indicated, the applicant is seen showing off his gun when the camera is pointed directly at him. There are videos with others at his birthday party singing his name.

[42] Moreover, the applicant knew the images and videos were being captured by his friend. The applicant had no control over the images as they were in M.M.’s phone. Nor, using the Marakah scenario, is there any evidence that the applicant sought to keep the images private, requested confidentiality, or demanded that they be deleted.

[43] For these reasons, I find that the applicant had no reasonable expectation of privacy in the images found on M.M.’s phone and is unable to claim a Charter violation as result of the police seizure.

IS THE WARRANT INVALID?

[44] If I am wrong on the issue of standing, I would find that the Durham warrant was validly issued.

[45] By way of background, M.M., at his trial for unrelated offences, brought an application to exclude the contents of the same mobile phone seized under the Durham warrant advancing a similar argument to the applicant. This was dismissed by Salmers J. on 23 October 2020. However, because M.M. resolved his matters, no judgment was ever released.

[46] The Crown asks this court to apply the doctrine of res judicata to the applicant’s motion, relying on the Supreme Court of Canada decision of R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316. That decision confirmed the continued application of issue estoppel in the criminal law context.

[47] The difficulty for the Crown is that the Court in Mahalingan, at para. 57, also made clear that the doctrine could only be raised by the accused.

[48] The Crown faces a second obstacle: since no judgment was released, this court cannot know what facts were found by Salmers J. when he dismissed M.M.’s Charter claim.

[49] Even though I decline the Crown’s request to apply res judicata, I have some sympathy with its assertion that the applicant’s motion runs contrary to recent jurisprudence advising of the need for trial efficiency, minimisation of delay and ensuring the best use of judicial resources. It is somewhat surprising that the applicant seeks to revisit, with the same or similar legal argument, a Charter issue already lost by the party who, unlike the applicant, was the actual subject of the warrant.

[50] Turning to the issue of whether the Durham warrant could have issued, the legal principles surrounding the review of search warrants are trite.

[51] A judge reviewing an authorisation does not conduct a de novo hearing of the validity of the authorisation or ITO, substituting their own view for that of the authorising judge. Instead, the reviewing judge considers the record placed before the authorising judge as supplemented by any evidence tendered on the s. 8 motion. After excising any misleading or unconstitutionally obtained evidence, the reviewing judge decides whether the ITO discloses sufficient evidence that might reasonably be believed on the basis of which the judge could have issued authorisation: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 99.

[52] The ITO must specify reasonable and probable grounds to believe an offence has been committed and that there is evidence to be found at the place of search: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 167-168. An authorisation is presumed to be valid from the outset and the burden of establishing invalidity rests upon the party challenging it: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 83. The authorisation would only be held invalid if the reviewing judge concludes that, on the material before the authorising judge, as amplified by the evidence on the review, and after the excision of erroneous and unconstitutionally obtained evidence, there was no basis upon which the authorizing judge could be satisfied that the conditions for granting the authorisations existed: R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, sub. nom. R. v. Pires, at para. 8.

[53] Here, the applicant argues that the ITO relating to the search of M.M.’s phone listed the following grounds for asserting reasonable and probable grounds that his phone would contain evidence relating to the shooting at 102 White Oaks Court:

I know the Apple iphone has the capability to take photographs and video. This data can be stored on the device. I believe there may be photographs or video of [M.M.] wearing clothing worn at the time of the offence. In previous investigations I know individuals will capture photographs of weapons including firearms on such devices. This data will corroborate physical evidence and CCTV video evidence.

[54] The warrant authorised the search of “all content currently stored on device including but not limited to: text message content, call logs, contact information, photographs and map information as well as files, photos, videos, programs and internet browse history”.

[55] The applicant argues that there was not “a scintilla of evidence” in the ITO to support the affiant’s belief that there would be any photographs or videos relating to the shooting at 102 White Oaks Court contained in the phone. Indeed, says the applicant there was no evidence that any photos would be found on the phone. The applicant argues that the claim was a “bald” assertion which, if permitted, would lead to a universal entitlement to search all suspects’ mobile phones.

[56] When the police applied for the warrant to search and seize M.M.’s phone, their objective was to seize evidence well beyond the scope of photographic evidence. At paras. 50-53 of the ITO, in addition to the photographs and videos, the affiant stated that he was seeking text messages to identify M.M.’s activities on the day of the shooting; M.M.’s search history prior to or after the offence to see if M.M. had checked the internet for reports of the shooting; and GPS location data which would have been stored on the phone.

[57] It is somewhat ironic that the applicant argues that there was not a scintilla of evidence that photographs and videos relating to the shooting would be found on the phone after he has forcefully argued, as part of his claim to standing, that mobile devices contain far reaching personal information including criminal activity.

[58] I find that there was every reason for the police to believe that evidence relating to the shooting would be located on the phone. As noted, photographs and video were only part of the evidentiary puzzle the police sought to find on the phone. Text messages and GPS location data are common features of any mobile phone. The information they would reveal would be of enormous benefit as would any images of M.M. wearing clothing similar to that described by the witnesses present on the night of the shooting.

[59] In this regard, I am ad idem with the comments of Dambrot J., at para. 23, of R. v. Yabarow, 2019 ONSC 3669 where he observed:

In the circumstances of a case like this, where there is evidence that a person committed a murder, it is no leap of logic to conclude that there is a probability that his or her cell phone communications, photographs, videos and the like will contain evidence of the offence. Evidence of the person's whereabouts, associations, and communications in the period immediately before and after the crime will invariably have evidentiary value in relation to the crime. Undoubtedly, in some respects, the proposed search here was wide, but it was very far from unlimited. The search was limited by time, subject matter and purpose. And the categories of evidence sought were logically connected to the offence. I do not see how I could say that the judicial officers in question could not have issued the production order and search warrant in issue. Having said this, I will go on to address some of the specific points made by the applicant.

[60] See also: R. v. Ryn, 2020 ONSC 1574 at para 118.

[61] For these reasons, I find the police had the required reasonable and probable grounds to believe evidence would be found on M.M.’s phone and I find the Durham warrant to have been properly issued. There was therefore no breach of the applicant’s s. 8 Charter rights and the application is accordingly dismissed.

S.A.Q. Akhtar J.

Released: 8 April 2021