COURT FILE NO.: CR-18-70000696-0000
DATE: 20210414
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TANADE MOHAMED AND ABDIRISAQ ALI
Applicants
Anna Tenhouse and Heather Harty, for the Crown
Richard Posner and Gabriel Gross-Stein, for the Applicant Tanade Mohamed
Craig Bottomley and Mayleah Quenneville, for the Applicant Abdirisaq Ali
HEARD: January 30, 31, February 3, 4, 7, 10, 11, 2020
CHARTER RULING
B.P.O’MARRA J.
OVERVIEW
[1] On Sunday, October 1, 2017 at approximately 3:12 a.m., two young men, Tyler McLean and Zemarai Khan Mohammed, were shot and killed in the busy parking lot of the Rebel nightclub, in the docks area of Toronto. The shootings took place as a large group of patrons were exiting the club during closing hours. Immediately after the shooting, two male suspects exited the parking lot in a black Dodge Durango at a high speed. A marked police cruiser in the area took up a high speed pursuit of the Durango that extended northbound onto the Don Valley Parkway. The pursuit was called off when it became evident that the Durango was increasing its lead on the police and it would be dangerous to continue. Neither the police nor any of the witnesses in the parking lot at the time of the shooting or shortly afterward were able to obtain the license plate on the fleeing Durango.
[2] In the hours after the shooting, members of the homicide squad of the Toronto Police Service (TPS) reviewed surveillance videos of areas inside the Rebel nightclub and the adjacent parking area. They observed interactions between two unidentified suspects and the two deceased. There appeared to be an altercation between one of the suspects and Tyler McLean in the parking lot shortly before the shots were fired. Video surveillance inside the nightclub showed the two suspects accessing an ATM earlier at 1:26 a.m. Some limited details of the transactions were retrieved from the ATM, including the date, time and the last four digits of the bank card number in each transaction. The colours of the two bank cards were visible on the videos which indicated that the TD Bank (green) and the CIBC (red) were the relevant banking institutions. By 5:36 p.m. the police were asking TD Bank for the card holder information on the basis of exigent circumstances. The TD representative advised that she would need the entire card number to access the card holder information.
[3] The police arranged for a representative from Interac to attend at the Rebel nightclub to extract the information from the ATM. The police also sent the information they had so far to a representative of the CIBC seeking the same information that had been requested from the TB Bank earlier. By 10:56 p.m., the Interac representative provided the police with the complete bank card numbers, the dates and times of the transactions and the amounts withdrawn for both transactions. The CIBC was contacted, and they advised that the information sought would not be available until the next morning. By 11:33 p.m., the TD Bank provided the card holder’s name as Tanade Mohamed, with an address in Edmonton. By 1:37 a.m. on October 2, 2017, the CIBC provided the other card holder’s name as Abdirisaq Ali, with a Toronto address.
[4] The identification of the two applicants, based on the use of the bank cards inside the Rebel nightclub, was obtained without resort to, or requests for, production orders or search warrants. That critical information led to surveillance of specific locations related to the suspects, the obtaining of search warrants, the seizure of evidence and, ultimately, to the arrests of both accused on October 3, 2017. They were both charged with two counts of second degree murder. The police recovered items including cell phones, items of clothing, ammunition and the Dodge Durango. Following his arrest, Tanade Mohamed was interviewed at length by the police. He denied any involvement in the shootings and provided a false alibi as to his whereabouts at the relevant times.
[5] Counsel for both accused filed applications claiming violations of ss. 8 and 9 of the Charter of Rights and Freedoms. They both sought orders, pursuant to s. 24(2) of the Charter, excluding the critical evidence of identification obtained from the banks without prior judicial authorization, as well as the significant derivative evidence later recovered by the police.
[6] On February 11, 2020, I dismissed the Charter applications with reasons to follow. By that date, a jury had been selected and the Crown made its opening address on February 12, 2020. I anticipated releasing my reasons on the Charter applications sometime before the trial concluded in March of 2020. By March 13, 2020, the Crown’s case was almost complete. The defence had declared, in the absence of the jury, that both accused would likely testify. The parties agreed that the case would require a further two or three weeks to complete. Unfortunately, by that date, the COVID-19 health crisis was about to shutter public buildings in Ontario, including courthouses, for at least several weeks. Counsel for both accused applied for mistrials based on the imminent suspension of the trial at a critical stage. Based on input from counsel and the jury, I took the unusual step of adjourning the trial until June 8, 2020 in the hope that we might be able to complete the trial at that time. In the weeks that followed, it became clear that was not possible. For sound public health reasons, it appeared that there would not be any jury proceedings in the Superior Court of Justice until September 2020, at the earliest. Based on further input from counsel, and with their consent, I declared a mistrial. A new trial date has been set for March of 2021.
[7] The police officers and the representative of the TD Bank who testified on these applications claimed that they proceeded without resort to prior judicial authorization based on exigent circumstances. The Crown position was that the legal standard for exigent circumstances was not met in the particular circumstances. However, the Crown submitted that there was no reasonable expectation of privacy over the banking information and thus no breach of s. 8 of the Charter. In the alternative, the Crown submitted that there was a diminished expectation of privacy in the bank records. If there was a breach, the Crown submitted that the evidence should not be excluded based on s. 24(2) of the Charter.
THE EVIDENCE ON THE APPLICATIONS
[8] The parties filed extensive application records that were referred to in the evidence of the three police officers and one representative of the TD Bank who testified on the applications.
Evidence of Mary-Jane Galliene
[9] This witness, Mary-Jane Galliene, has been employed as a Senior Investigator with the TD Bank, Global Security and Investigations Department, since 2002. She was previously employed as a police officer with the Halton Regional Police Service from 1992 to 2002. In her current position, she investigates economic crimes committed against the bank and its clients. Her department also responds to law enforcement requests made in relation to ongoing police investigations. Senior investigators in her department occasionally work after regular business hours, on a rotating basis, completing “on call” work between 5 p.m. and 8 a.m. During those shifts, she mainly responds to emergency requests from law enforcement. Those requests relate to TD Bank clients involved in situations where their personal safety or the safety of the public is at significant risk of harm. In those cases, she would review the case details provided by the police and determine whether exigent circumstances exist which would allow her to release client information to the police without a production order. She has invoked the exigent circumstances doctrine hundreds of times. She provided the critical information to the TPS that identified Tanade Mohamed as one of the suspects in this double homicide.
[10] Ms. Galliene has been trained on how to determine whether exigent circumstances exist that would allow her to release client information without a production order. She is also very familiar with the process involved in obtaining such orders. There is a team within the Global Security and Investigations Group at the TD bank that deals with them. They generally work 8 a.m. to 4 p.m. or 9 a.m. to 5:30 p.m. on weekdays. They are not part of an “on call” team that deals with emergency calls from law enforcement on weekends or after hours. Members of her team work with them in certain cases. In her experience, it takes anywhere from thirty to ninety days to produce what is requested on such orders, depending on the volume and type of material requested. She agreed that if a production order has already been obtained and the information sought is not complex or voluminous, it could be produced much more quickly than thirty days.
[11] Ms. Galliene testified that, in this case, it was her own determination of whether there were exigent circumstances and not that of any member of the TPS investigative team that led her to provide the information requested. It was her job to collect the facts and make her own determination as to whether she would provide anything and how much. She said she was not influenced by the police in making her determination and did not view her role as an agent of the police. She referred to a federal statute, The Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, s. 7(3)(d.1), which allows, in part, for an organization to disclose personal information, without the knowledge or consent of the individual, only if the disclosure is made to another organization and is reasonable for the purposes of investigating a contravention of the laws of Canada that has been or is about to be committed and it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the investigation.
[12] Ms. Galliene also referred to financial services agreements that all TD bank clients who open a personal account are required to sign. She located documents showing that Tanade Mohamed had signed such an agreement with the bank. That agreement always requires that the client sign off on the fact that the bank shares the personal information with third parties, including loyalty groups and promotions inside and outside the bank. The provisions related to privacy and sharing of information are available for viewing on the TD Bank website.
[13] On Sunday, October 1, 2017 at approximately 5:36 p.m., she was first contacted, while working “on call,” by Officer Tim Gallant, who sought assistance in regard to a double homicide investigation in progress. He told her that there had been two fatal shootings at the Rebel nightclub in the early hours of that day. He also told her that the suspects fled the scene while driving at high speed and in a dangerous manner. The suspects were still at large and were considered a serious risk to the public and law enforcement officers who may interact with them. The police believed that a TD bank card had been used inside the Rebel nightclub at an ATM before the shootings. The person who used the bank card was believed to be a suspect in the shootings. Officer Gallant asked her for the name of the person associated to the bank card. He told her that this information was urgently required as the suspect was still at large and was considered a danger to the public. He emailed her a copy of the ATM receipt, that showed a $400 cash withdrawal on October 1, 2017 at 1:26:18 a.m., at a specific terminal. The first twelve digits of the bank card used for the transaction were masked with asterisks. The last four digits were shown. Ms. Galliene told him that the TD computer system does not accept partial card numbers when running searches. She told him that the company that owned the ATM would have to check the internal logs of its machine to get the full bank card number.
[14] Based on the information provided to her by Officer Gallant, Ms. Galliene believed that she had grounds to disclose the client’s name, date of birth and address to the officer without a production order. That belief was based on the serious risk to the public and police while the suspects remained at large, unidentified and possibly armed. She believed there were exigent circumstances as it would not be in the interest of public safety to delay providing that information while the police applied for and obtained a production order.
[15] Officer Gallant called her again at approximately 11:09 p.m. on the same night and provided the full bank card number. She called him back at approximately 11:25 p.m. and confirmed that it was a TD bank debit card. She had searched the number on the bank’s customer information system. That search showed that the card was issued to Tanade Mohamed, with an address in Edmonton, Alberta and a phone number. A check of the history for that card showed it had been used to complete the transaction at the ATM inside the Rebel nightclub before the shootings. She agreed in cross-examination that the information sought by the police was not voluminous or complex. Once she had the full sixteen digits on the bank card, she was able to retrieve the information in about twenty minutes. She did not provide official copies of the bank’s records at that time. She suggested that Officer Gallant should obtain those through an application for a production order for use in any criminal proceedings.
[16] On October 2, 2017, Ms. Galliene was again contacted by Officer Gallant. He told her that the police had not yet located Mr. Mohamed. He asked her to check and see whether he had used the card again, since it might assist the police in locating him. She checked and found that there had not been any further transactions on the bank card.
Evidence of Detective Sergeant Timothy Gallant
[17] This witness, Detective Sergeant Timothy Gallant, has been a member of the TPS for over thirty years and has been in the homicide squad since 2015. He referred to himself as the officer in charge of this case, although he reported to Detective Sergeant Stephenson. On Sunday October 1, 2017, he was on duty in the early hours after the shooting outside the Rebel nightclub. He attended the scene of the shooting and dealt with the family of Tyler McLean at the hospital where he died. At 12:15 p.m., he viewed surveillance video of an apparent altercation between one of the suspects and Tyler McLean before the shots were fired. One of the suspects, who wore white pants, could be seen throwing a water bottle at Tyler McLean before the shots were fired. The two suspects then fled the parking lot in a black vehicle at high speed. The police had information that the vehicle was a rental. The police were concerned that the fleeing suspects could return the vehicle to the rental company for cleaning, which would remove potential evidence. There were also concerns that the armed suspects could endanger the lives and safety of police officers who might encounter them.
[18] At approximately 4:42 p.m. on October 1, 2017, Officer Gallant received information from Detective Constable Matthew Emptage that there was video footage of the two suspects inside the Rebel nightclub using an ATM before the shooting. Receipts for the transaction by each suspect had been recovered. The receipts provided details of the date, time, amounts of the withdrawals and partial bank card numbers. Officer Gallant decided that it was urgent that the police obtain the identity of the two card holders. The fleeing suspects were armed and had carried out “basically an execution” in the crowded parking lot of the Rebel nightclub. He felt it was imperative that the suspects be arrested, evidence be preserved and that safety of the public and police be protected. The police were looking for very basic information, specifically a name and address associated to each bank card. He referred to this as “tombstone” information. It would not be more detailed biographical information that related to lifestyle issues. At 5:36 p.m., Officer Gallant spoke by phone with Arnold Chin of the TD Bank and referred to the exigent circumstances. Mr. Chin advised that he did not have the right program at his home and would need the complete card number in any event. At 6:31 p.m., Officer Gallant sent an email to Shandy Song of the CIBC. The message referred to exigent circumstances and sought assistance in getting the name, address and contact information associated to the bank card. He sent a similar email request at 6:37 p.m., with the same urgency, to Mary Jane Galliene of the TD Bank. Officer Gallant had also directed Officer Emptage to obtain the full card numbers from the company that operated the ATM in the Rebel nightclub. Officer Gallant testified that the police had grounds to seek and obtain a production order but would have had to wait until Monday, the following day, when the courts are open. That would have been an unacceptable delay in the investigation bearing in mind the exigent circumstances. He testified that telewarrants are not available for production orders.
[19] At approximately 10:56 p.m. on October 1, 2017, Officer Gallant received information that Officer Emptage had obtained the full bank card numbers. Shortly thereafter, Officer Gallant provided the complete number for the TD Bank card to Mary Jane Galliene. At 11:25 p.m., she provided the police with the name and contact information of Tanade Mohamed associated to that card. The same process was followed with the CIBC, who provided the name and contact information of Abdirisaq Ali associated to that card.
[20] Later in October 2017, production orders were applied for and granted for the bank records of both accused.
[21] In cross-examination, Officer Gallant was asked about his understanding of the term exigent circumstances. He said it related to urgent situations involving public and police safety and the potential loss of evidence. He was not aware of any police training on the subject but he believed there was case law and references in the Criminal Code, R.S.C., 1985, c. C-46. He agreed the police should try to know what the law is on such an issue. He agreed it would be reasonable for a citizen to expect privacy in a banking transaction. However, that would be subject to exigent circumstances which, as he believed, prevailed in this case. His own view of the issue was based on years of experience and many circumstances. He agreed that the invocation of exigent circumstances should not be abused.
[22] Officer Gallant testified that he was informed that the Crown on this case did not agree that there were exigent circumstances as defined in law. He has not read the Crown’s factum on this issue. Notwithstanding the Crown position, he would do the same thing today as he and his team did on October 1 and 2, 2017.
Evidence of Detective Constable Matthew Emptage
[23] This witness, Detective Constable Matthew Emptage, has been with the TPS for fourteen years. He has been in the homicide squad since 2016. He referred to Detective Sergeant Gallant as the managing officer or major case manager in this investigation. He attended the initial team briefing at 5:55 a.m. on October 1, 2017. At 3:36 p.m., he received information from the parking valet at the Rebel nightclub that the vehicle driven away by the suspects was a rental. That meant that the suspects could be from out of town. None of the witnesses at the scene had noted the license plate numbers on the vehicle. The suspects may have fled the jurisdiction.
[24] At 4:30 p.m., Officer Emptage was at the Rebel nightclub to view and collect video surveillance of the events. He spent several hours watching videos from various locations inside the nightclub and the adjacent parking lot. He saw the black SUV with the suspects arrive at the club. After they entered the nightclub, both of the suspects could be seen using an ATM to withdraw some cash. The colours of the bank cards, red and green, were visible on the video. The red card would be a CIBC card and the green card a TD Bank card. Receipts were retrieved for the two transactions that showed the date, time and amount of the withdrawals, as well as the last four digits of the bank card. Officer Emptage made inquiries as to how he could obtain the complete bank card numbers. The ATM was owned and operated by Newer Technologies Ltd. Officer Emptage was given the name Ryan as a contact person at that company. He left a message for Ryan to call him. At 6:08 p.m., Ryan returned his call. Officer Emptage advised Ryan of the urgency of the situation based on a random altercation in a crowded parking lot that led to shots being fired, two young men dead and the armed suspects fleeing at high speed in a rental vehicle while being pursued by police. Ryan referred him to Jody Campbell at Interac. At 9:55 p.m., Officer Emptage emailed an urgent request to Jody Campbell that specifically referred to exigent circumstances. He stated that “we are happy to provide production orders but there is no way to get them after hours”. The information was needed to help identify two males responsible for two murders at the Rebel nightclub. The two banks were on standby for the complete card numbers and were willing to rush the information prior to the granting of production orders. Officer Emptage left his personal cell number for a quick response. At 10:02 p.m., Campbell responded by email that he would see what he could do “but we are after hours as well”. Emptage responded that he understood and would appreciate anything Campbell could do to help. At 10:13 p.m., Campbell emailed Emptage to say that the issue was whether his technical person was awake. A request had been sent to that person but, as there was no response yet, “it doesn’t look good … if the technical person was awake he would reply as soon as possible”. At 10:14 p.m., Emptage emailed Campbell asking if the technical person had a phone contact number and suggested the person call him directly. At 10:21 p.m., Campbell replied that he still had no response and would try others. At 10:52 p.m., Campbell emailed to Emptage a password for a file that contained the two complete bank card numbers. Emptage was, at that time, in a room with other officers, including DS Stephenson and DS Gallant. He advised them that they now had the information necessary to get the names and contact information associated to both of the bank cards.
[25] Officer Emptage testified as to his understanding of the process involved in applying for and obtaining production orders. An Information to Obtain (ITO) is required and the drafting of such a document would take two to six hours to produce. The application has to be done on a Monday through Friday, during business hours at court. Production orders cannot be obtained by telewarrant. The records are usually produced in thirty to sixty days, perhaps thirty days in exigent circumstances. It was his decision to seek the bank information in this case without a production order based on his view of the exigent circumstances. He kept Officers Stephenson and Gallant informed, but did not take specific direction from them in this regard. He testified that he sought tombstone information for the two suspects, being names and dates of birth. He did not seek biographical core information that would reveal a more in-depth knowledge of the suspects’ lifestyles. He did not consider applying for production orders because he could not obtain one after hours on a Sunday. He was aware of “after hours” rosters of judges and justices related to search warrants, but not in regard to production orders.
[26] Officer Emptage was not aware of any police training or policy related to exigent circumstances. He believed the issue was referred to in the Criminal Code. In this case, he referred to the safety concern for police officers who might stop the fleeing vehicle with two armed suspects and two dead bodies left behind as “more than theoretical”. As he testified, he still believes that he acted within the ambit of exigent circumstances. He first heard the Crown had conceded that there were no exigent circumstances when he testified on the pretrial motions.
Evidence of Detective Sergeant Katherine Stephenson
[27] Detective Sergeant Katherine Stephenson has been a member of the TPS for over twenty years. She has been a member of the homicide squad for two and a half years. She was the lead officer on this case. It was the first time she was the lead officer on a homicide case. She was on duty by 5:50 a.m. on October 1, 2017 and worked until approximately 2:00 a.m. on October 2, 2017. By then, the police had identified the two suspects involved in this incident, as well as their addresses. She was back on duty by 7:00 a.m. that day. She later learned that investigators had located the Dodge Durango, believed to be the vehicle driven away from the shooting at 2:04 p.m. that day.
[28] Officer Stephenson knew that Detective Constable Matthew Emptage was a part of the investigative team but she did not provide him with instructions as to what he should or should not do.
[29] At 6:40 p.m. on October 1, 2017, she was advised by Officer Gallant that he had requested the CIBC and the TD Bank to identify the card holder names associated to the transactions captured on video at the ATM in the Rebel nightclub before the shooting. At an 8:00 p.m. briefing, Officer Emptage advised that he had made an urgent request to the owners of the ATM to provide the complete card numbers. At 11:30 p.m., she was advised by Officer Gallant that one of the card holders was Tanade Mohamed. At 1:40 a.m. on October 2, 2017, she was advised by Officer Gallant that the name of the second card holder was Abdirisaq Ali. Officer Stephenson was kept informed of contacts by the investigative teams with the two banks but she did not have any personal contact with either bank.
[30] Based on all of the information she had about the shooting at that time, including a review of the video of events before, during and after the shooting, Officer Stephenson believed there were exigent circumstances for the police to find out the name of the two suspects without resort to a production order. She believed there was a serious public safety risk, including potential danger to police who could possibly stop the vehicle that left the scene at high speed.
[31] In cross-examination, Officer Stephenson testified that her belief that there were exigent circumstances in this case was based, in part, on the potential delay in seeking a production order. She volunteered that there had been a negative experience on an unrelated and ongoing investigation that had occurred after the matter before this court. That case involved a shooting homicide with a suspect still at large. She testified that the police obtained a production order for phone records and made an urgent request for the records. She said she was frustrated when the record holder replied that they would be in a queue for thirty days to obtain the records. The records were ultimately provided and were very helpful.
[32] At the conclusion of her evidence, counsel for Mr. Mohamed requested disclosure of an edited copy of Officer Stephenson’s notes from the other investigation that she had referred to. The Crown properly complied with that request. Officer Stephenson was then recalled for further cross-examination.
[33] In further cross-examination by Mr. Posner, Officer Stephenson conceded that there was in fact very little delay in obtaining the phone records pursuant to the production order in the unrelated case she had referred to. Officer Stephenson testified that she had not recently reviewed her notes on that case in advance of the current application. In a forceful cross-examination, Mr. Posner suggested that Officer Stephenson had left a false impression with the court that there was in fact a significant delay in response to an urgent request by police pursuant to a production order in the other case. He further suggested that she did so in order to support her professed belief in exigent circumstances in the matter before this court. Officer Stephenson responded that she was referring to her initial frustration on hearing that there would be a thirty-day delay in obtaining the records. She said her recollection of the length of delay in that case was refreshed after she reviewed her notes.
EXIGENT CIRCUMSTANCES
[34] The common law recognized exigent circumstances as a basis for search and seizure without prior judicial authorization. The urgency of certain situations relieved against the necessity of obtaining a warrant although there must have been grounds to obtain a warrant: R. v. Kelsy, 2011 ONCA 605, at para. 29. It is well established that courts will continue to recognize the exercise of police powers that comply with the common law Waterfield test: R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at paras. 49-50. That reference is to the decision of the English Court of Criminal Appeals in R. v. Waterfield, [1963] 3 All E.R. 659.
[35] In R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, the court was dealing with a warrantless search for drugs in a place other than a residence. The issue was framed as to whether there was imminent danger of the loss, removal, destruction or disappearance of the evidence sought if the search or seizure is delayed to obtain a warrant. The second basis for exigency is where there is an imminent threat of danger to the safety of the public or the police. By their nature, exigent circumstances are extraordinary and should be invoked to justify a violation of privacy only where it is necessary: Kelsy, at paras. 24 and 35.
[36] In R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 74, the court referred to the existing powers of the police to obtain subscriber information from an internet provider in exigent circumstances where the information is required to prevent imminent bodily harm.
[37] The common law power to search for evidence in exigent circumstances has been largely codified since the advent of the Charter, including the following sections of the Criminal Code:
Search and seizure without warrant where offence committed
117.02 (1) Where a peace officer believes on reasonable grounds
(a) that a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence, or
(b) that an offence is being committed, or has been committed, under any provision of this Act that involves, or the subject-matter of which is, a firearm, an imitation firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance,
and evidence of the offence is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house, the peace officer may, where the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practicable to obtain a warrant, search, without warrant, the person, vehicle, place or premises, and seize anything by means of or in relation to which that peace officer believes on reasonable grounds the offence is being committed or has been committed.
Disposition of seized things
(2) Any thing seized pursuant to subsection (1) shall be dealt with in accordance with sections 490 and 491.
Where warrant not necessary
487.11 A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.
Authority to enter dwelling without warrant
529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.
Exigent circumstances
(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer
(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or
(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.
It is also referred to in s. 11(7) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19:
Where warrant not necessary
(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.
[38] The Crown position that the police in this case were not acting in exigent circumstances rests on the term “imminent”. That word means “about to happen”. Imminent is not the same as urgent. However, for reasons I will outline below, I am of the view that there is a reasonable nexus between those two concepts in situations of extreme urgency involving reasonably perceived threats to the safety of the public and police and/or the potential loss of evidence.
WAS THERE A BREACH OF s. 8 OF THE CHARTER?
[39] In R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 27, the court outlined the considerations as to whether there is a reasonable expectation of privacy for the purposes of s. 8 of the Charter:
On the facts of this case, we need to address:
What was the nature or subject matter of the evidence gathered by the police?
Did the appellant have a direct interest in the contents?
Did the appellant have a subjective expectation of privacy in the informational content of the garbage?
If so, was the expectation objectively reasonable? In this respect, regard must be had to:
a. the place where the alleged “search” occurred; in particular, did the police trespass on the appellant’s property and, if so, what is the impact of such a finding on the privacy analysis?
b. whether the informational content of the subject matter was in public view;
c. whether the informational content of the subject matter had been abandoned;
d. whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?
e. whether the police technique was intrusive in relation to the privacy interest;
f. whether the use of this evidence gathering technique was itself objectively unreasonable;
g. whether the informational content exposed any intimate details of the appellant’s lifestyle, or information of a biographic nature.
[40] The case before me involved a warrantless search of specific portions of the banking records of both applicants. Neither of the applicants testified. I am satisfied that they both had a degree of reasonable expectation of privacy in those records. On the basis that there was a breach of s. 8 in the obtaining this information, it is important to assess the extent and nature of that reasonable expectation.
[41] The Criminal Code provides that a production order for specific limited financial information related to a bank customer may be ordered based on “reasonable suspicion”:
Production order — financial data
487.018 (1) On ex parte application made by a peace officer or public officer, a justice or judge may order a financial institution, as defined in section 2 of the Bank Act, or a person or entity referred to in section 5 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, to prepare and produce a document setting out the following data that is in their possession or control when they receive the order:
(a) either the account number of a person named in the order or the name of a person whose account number is specified in the order;
(b) the type of account;
(c) the status of the account; and
(d) the date on which it was opened or closed.
Identification of person
(2) For the purpose of confirming the identity of a person who is named or whose account number is specified in the order, the order may also require the institution, person or entity to prepare and produce a document setting out the following data that is in their possession or control:
(a) the date of birth of a person who is named or whose account number is specified in the order;
(b) that person’s current address; and
(c) any previous addresses of that person.
Conditions for making order
(3) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 that there are reasonable grounds to suspect that
(a) an offence has been or will be committed under this or any other Act of Parliament; and
(b) the data is in the possession or control of the institution, person or entity and will assist in the investigation of the offence.
Form
(4) The order is to be in Form 5.008.
Limitation
(5) A financial institution, person or entity that is under investigation for the offence referred to in subsection (3) may not be made subject to an order.
[42] A search warrant under s. 487 of the Criminal Code is based on “reasonable grounds to believe”. The lower standard of “reasonable suspicion” in s. 487.018 reflects the lower expectation of privacy for the specific information sought under that section in contrast to the standard under s. 487.
[43] The options available and the different ways in which customers can conduct their interactions with a bank reflect different levels of reasonable expectations of privacy. The days are long gone when the only way, or even the primary way, to conduct a financial transaction with a bank was to attend in person before a teller. That process is actually discouraged in modern times. For many years, bank customers have had multiple options to conduct business with their bank, or even through another bank, remotely by phone or computer. Those transactions can be done from a home, business or any other location where the customer is alone. Another option is to access any one of the proliferation of ATMs that have sprung up throughout the landscape. This option is very convenient. It is also significantly less private than access from home or business through phones or computers.
[44] Anyone who uses an ATM in a public place knows that they may be seen by other persons who happen to be nearby. They may be seen by persons who know who they are. They know that their image is being captured on the surveillance videos that perpetually scan public areas, inside and outdoors, and especially around ATM devices. An observer of someone at an ATM may even gain a pretty good idea of what type of transaction the customer is conducting. Someone who resorts to an ATM in a busy nightclub at 1:30 a.m. is not likely paying a utility bill. They are most likely making a withdrawal. The act of withdrawing cash from an ATM in a public place is not private. The customer must know that they could be identified doing so.
[45] In R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at paras. 50-51, the court held that a reasonable expectation of privacy existed related to information from an internet provider. That information went beyond basic subscriber information and into the person’s activity on the internet. It linked the person with anonymously undertaken online activities. This was core biographical information that linked the person by name to activities online. Such information showed how the person conducted their life and provided insight into intimate details of his or her lifestyle and personal choices. This information goes far beyond tombstone information that is restricted to the name, date of birth and contact information of the subject.
[46] In R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293, Justice Sopinka held that for constitutional protection to be extended the seized information must be of a personal and confidential nature. He went on to state that the Charter should protect the biographical core of personal information, including “information which tends to reveal intimate details of the lifestyle and personal choices of the individual”. On such applications, the court should consider such factors as the nature of the information itself, the nature of the relationship between the party releasing the information and the party claiming confidentiality, the place where the information was obtained, and the seriousness of the crime being investigated, and allow for the balancing of the societal interest in protecting individual dignity, integrity and autonomy with effective law enforcement.
[47] In R. v. Merritt, 2017 ONSC 366, at paras. 39, 141, 154, the court distinguished between tombstone information and core biographical information. The former included the name, date of birth, territorial area and the person’s bank account number. The latter revealed preferences, intimate choices and lifestyle details.
[48] The police in the applications before me were not seeking, and did not obtain, core biographical information about anyone. The two suspects were observed in a public place making withdrawals from an ATM. The police sought and obtained tombstone information about them. The two suspects had a diminished level of reasonable expectation of privacy in that information.
THE SERIOUSNESS OF THE BREACH
[49] That the applicants had a reduced level of reasonable expectation of privacy is one factor in assessing the seriousness of the breach. A further relevant factor is whether the police acted in good faith in obtaining the tombstone information without prior judicial authorization. Their professed belief that these were exigent circumstances is central to that issue.
[50] The law specifies that imminence is the precondition for exigent circumstances. Urgency, even extreme urgency, does not equate to imminence. However, imminence and urgency both have a temporal aspect. Something imminent is about to happen. A truly urgent situation requires some immediate attention or action.
[51] A judicial finding that there were in fact exigent circumstances means there was no violation of the Charter in obtaining the evidence, provided there were grounds to obtain prior judicial authority. Over time, the provisions of the Criminal Code and the CDSA, as well as caselaw, have set out the legal parameters of exigency. The ultimate finding in any given individual case is very fact driven. All homicides are serious and of great public interest, but not all of them require urgent action by the police to protect the public. There are some circumstances that clearly fall short of the definition. The case before me is not one of those. The Crown position is that the police did not have exigent circumstances. However, in my view, at the very least, in the particular circumstances, the key investigators honestly and reasonably believed these were exigent circumstances. This finding has implications related to good faith and the seriousness of the breach of s. 8 of the Charter.
[52] The key police witnesses on these applications were Officers Gallant and Emptage. They were the ones who had direct contact with the representatives of the two banks. They made their decisions based on their assessment of exigent circumstances. The initial critical hours of the investigation of this double homicide stretched from the early hours of a Sunday into the early hours of the next day. Their professed belief that these were exigent circumstances was vigorously challenged in cross-examination. Counsel for the applicants submitted that the police took a methodical approach to the investigation that was inconsistent with their claim of urgency or exigency.
[53] The Crown had not planned to call Officer Stephenson to testify on these applications. She was the officer in charge and was kept informed as the investigation proceeded. She had no direct contact with the representatives of either bank. She was copied on emails between Officers Gallant and Emptage and the representatives of the banks. She shared the view, at the time, that these were exigent circumstances. There was no request from counsel that Officer Stephenson be excluded from the courtroom for the testimony of Officers Gallant and Emptage. This suggests that, at least initially, the applicants did not view her potential evidence as significant on these applications.
[54] After Officers Gallant and Emptage had testified, Crown counsel were advised that counsel for the applicants wished to hear the testimony of Officer Stephenson. The Crown properly and fairly made her available. She testified that she did not have a meeting with Crown counsel to review her anticipated evidence before she was sworn as a witness.
[55] In my review of the evidence, I have referred to the issue of the unrelated investigation that Officer Stephenson raised without prompting by either Crown or defence counsel. That related to her experience in an unrelated investigation that occurred after the one before this court. She referred to her frustration at being met with delay in obtaining critical records in urgent circumstances on a shooting homicide where the suspect was still at large. Mr. Posner requested disclosure of her redacted notes on that case. The Crown facilitated that request. It appears that neither counsel for the Crown nor the applicants had seen those notes before disclosure was requested and provided.
[56] In a thorough and effective cross-examination, Mr. Posner exposed that while Officer Stephenson may well have been initially frustrated by the potential delay in that other case, there was in fact expeditious production of the records in question. Before this was brought out in cross-examination, this court was left with a very different impression.
[57] Witnesses are sworn or affirmed to tell the truth, the whole truth and nothing but the truth. The initial omission by Officer Stephenson to relate how that other investigation played out was a failure to tell the whole truth. She testified that she had not recently reviewed her notes on that case before she was called to testify on these applications. If she encountered initial frustrating information about potential delay in that homicide investigation, it is difficult to see that she would not also recall that in fact the records were produced in reasonable time.
[58] In the applications before me, the issues of belief in exigent circumstances and good faith fall to be decided by an assessment of the evidence of Officers Gallant and Emptage, along with the extensive materials filed by all counsel. Those two officers reported to, but were not directed in any specific way, by Officer Stephenson. My finding that she was not complete and forthright in her reference to the other investigation has minimal impact on the issues before me.
[59] The circumstances of this double homicide investigation starting in the early hours of a Sunday may not have met the legal threshold of imminence/exigency, but I find that it was reasonably viewed by Officers Gallant and Emptage as extremely urgent with public and police safety and the potential loss of evidence at risk. The firearm involved in the two shootings has never been recovered. There was a legitimate temporal aspect to this perceived urgency that was the foundation of their resort to exigent circumstances.
[60] Mary-Jane Galliene of the TD Bank agreed with the police that these were exigent circumstances. Her job included after hours response to law enforcement requests where public safety is at stake. She has dealt with many such situations in the past. Her opinion was based on her independent assessment of the information supplied by the police. She did not see her role as an agent of the police. Her opinion that these were exigent circumstances obviously cannot determine that issue for the court. However, it lends some degree of support for the professed belief of the officers that these were exigent circumstances.
SHOULD THE EVIDENCE BE EXCLUDED UNDER S.24(2) OF THE CHARTER?
[61] Having found that there has been a breach of the applicants’ s. 8 Charter rights, as well as the reduced reasonable expectation of privacy and good faith belief of the officers, the final step is to determine the impact of the exclusion on the integrity of the trial process and determine whether the evidence should be excluded. If the tainted evidence is excluded, it would also exclude the derivative evidence obtained.
[62] The s. 24(2) analysis focuses on the overall effect of admitting constitutionally tainted evidence on the administration of justice. A determination that admitting the evidence would “bring the administration of justice into disrepute” looks at the long term adverse effects. The onus is on the accused to satisfy the test of “whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute”: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 3352, at paras. 67-70; R. v. Muddei, 2021 ONCA 200, at paras. 75-80.
[63] Grant, at paras. 71-86, directs the court to have regard to the following lines of inquiry in assessing and balancing “the effect of admitting the evidence on society’s confidence in the justice system”:
(1) The seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct);
(2) The impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little); and
(3) Society’s interest in the adjudication of the case on its merits.
[64] In R. v. Le, 2019 SCC 34, at paras. 141-142, the court commented on the dynamics of these three lines of inquiry. While the first two lines of inquiry often favour exclusion, the third often favours admitting the evidence. The pull of the third line of inquiry is “particularly strong” when the evidence is reliable and critical; however, it is not a “rubber stamp.”
[65] I have already found that the officers had an honest and good faith belief in exigent circumstances. On the continuum of blameworthiness, the conduct is less blameworthy and, consequently, the first line of inquiry provides weaker support for exclusion.
[66] I have also concluded that the applicants had a lower reasonable expectation of privacy rights, the Charter-protected interest, and that the breach was limited to tombstone information. The impact of the breach of the applicants’ expectation of privacy interests also weakens the case for exclusion.
[67] Finally, I must determine the potential impact of the exclusion of the primary and derivative evidence and the societal interest in a trial on the merits. The evidence here is reliable and critical and the effect of exclusion will significantly erode the foundation of the Crown’s case. Indeed, the Crown’s case would be effectively gutted by the exclusion of the primary and derivative evidence that flowed from the warrantless retrieval of the names linked to the two bank cards. Based on that, surveillance of the two suspects were conducted, production orders and search warrants were obtained, the accused were both arrested and Tanade Mohamed provided a post-arrest statement that included a denial of involvement and proffered a provably false alibi. The police also obtained DNA evidence as well as cell phone records. The evidence obtained was reliable.
[68] There is a significant societal interest in a trial on the merits. The admission of this evidence would not bring the administration of justice into disrepute. Notwithstanding the breach of s. 8 of the Charter, the primary and derivative evidence should not be excluded and is admissible at trial.
RESULT
[69] The applications are dismissed.
B.P.O’MARRA J.
Released: April 14, 2021
COURT FILE NO.: CR-18-70000696-0000
DATE: 20210414
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TANADE MOHAMED AND ABDIRISAQ ALI
Applicants
Charter ruling
B.P.O’MARRA J.
Released: April 14, 2021