COURT FILE NO.: CR-19-50000522-0000

DATE: 20210118

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

ZAYD CHAUDHRY

Aaron Del Rizzo, Jim Cruess and David Reznikov, for the Crown

Magda Wyszomierska and Charles Lamy, for Zayd Chaudhry

HEARD: November 5-6, 2020

By virtue of s. 648(1) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury hearing this trial retires to consider its verdict.

M. Dambrot J.:

[1] This ruling concerns the admissibility of certain records of Beck Taxi provided by that company to the police upon request without judicial authorization. The accused applies to exclude these records from evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms. He claims that they were obtained in a manner that infringed his right to be secure against unreasonable search or seizure, as protected by s. 8 of the Charter, and their admission into evidence in these proceedings would bring the administration of justice into disrepute.

[2] The records in question consist of: (1) a copy of a Beck Taxi service order allegedly made by the accused on October 5, 2017 from the scene of the murder using phone number (437) 990-1367, and the corresponding audio recording of that service order; and (2) copies of seven[1] Beck Taxi service orders made between September 28 and October 3, 2017 using phone number (437) 771-2166, which the Crown alleges is the accused’s phone number, and the corresponding audio recordings of those service orders.[2] The first group of records was obtained on October 5 and 6, 2017, while the second group of records was obtained in May 2020.

[3] The accused argues that the records could only have been lawfully obtained under the authority of a production order issued by a judge or justice pursuant to s. 487.014 of the Criminal Code, R.S.C. 1985, c. C-46. Such an order can only be made if a peace officer satisfies the judge or justice on oath that there are reasonable grounds to believe that an offence has been or will be committed and that a document or data, as defined in s. 487.011 of the Criminal Code, in the person’s possession or control will afford evidence of the offence.

[4] The Crown submits that the Beck Taxi service orders and audio recordings are documents that can be ordered produced pursuant to s. 487.014, and that the police had the grounds to obtain a production order for the documents in issue. The defence does not suggest otherwise, and I agree. However, Crown counsel argues that, since Beck provided the documents voluntarily, and because the accused had no expectation of privacy in those documents, the accused’s s. 8 rights were not violated when the police obtained these records without a production order. In any event, in respect of the October 5, 2017 documents, the Crown argues that the circumstances were exigent and police were entitled to obtain them without judicial authorization for that reason. Finally, even if the evidence, or any of it, was obtained in a manner that violated s. 8, the Crown argues that its admission into evidence would not bring the administration of justice into disrepute and, as such, it should be admitted pursuant to s. 24(2) of the Charter.

BACKGROUND

[5] The accused, Zayd Chaudhry, is being tried by me with a jury on an indictment alleging that he committed the first degree murder of Abdulkadir Bihi. Mr. Bihi was shot and killed in the parking lot behind 263 Dixon Road, Toronto on October 5, 2017. He was seated in a Volkswagen Jetta when a man, whom the Crown alleges to be Mr. Chaudhry, emerged from a forested area nearby. The man approached the vehicle and fired several shots through the windshield. Mr. Bihi was struck multiple times. An on-scene witness saw the shooter lean into the car prior to the shooting. After being shot, Mr. Bihi reversed his vehicle and attempted to escape from the scene. He crashed into the back of a truck and died in the parking lot. These events were recorded by CCTV surveillance, but unfortunately the footage is not of suitable quality to identify the shooter.

THE EVIDENCE

Relating to the October 5 and 6, 2020 Beck Taxi Records

[6] It is important when assessing the application relating to the October 5 and 6, 2020 records to consider the circumstances from the perspective of the investigators immediately after the shooting up to the time that the records were obtained, rather than with the benefit of hindsight. We now know that eyewitnesses will testify that, after the shooting, the shooter and another male ran back through the forested area along a path toward Dixon Road. The Crown alleges that the second male was an individual named Zakariye Ali, who was murdered two days later after attending Mr. Bihi’s funeral. A taxi was waiting for the two men at the end of the path with a third male, alleged to be Faysal Omar, in the back seat. The two men entered the taxi and the driver, Khaliif Jama, took all three passengers to a destination in Oakville. But, as I said, we must focus on what the police knew at the time.

[7] The police received a number of 911 calls about the shooting commencing at 2:46 p.m. One of the callers said that the suspect hopped into a yellow cab and headed towards Islington Avenue. Uniformed officers who arrived at the scene of the shooting were faced with a chaotic situation. They obtained information that the shooter had fled in a green and orange cab, which description matches the appearance of a Beck taxi. As a result, at 3:00 p.m., a police dispatcher made inquiries of Beck to see if they could identify who picked up this fare. Beck sent a message to all of its drivers asking if they picked up a fare in the area but initially received no response.

[8] Detective Henkel, a homicide investigator, took charge of the investigation late in the afternoon of October 5, 2017, and was made aware of the state of the investigation.

[9] At 6:08 p.m., Detective Yeo reported to Detective Henkel that he had interviewed the driver of the truck struck by the deceased’s vehicle. The driver told him that after the shooting, the shooter and a companion went through the forest and into a Beck taxi. Armed with confirmation that the suspect and a second man had fled in a Beck taxi, Detective Henkel detailed Detective Constable Provender to follow up with Beck, determine if there was in fact a Beck taxi that did a pickup at Dixon Road and Islington Avenue at the relevant time, and identify where the taxi was. Detective Henkel had several urgent concerns: he wanted to locate the offenders; he wanted to ensure the safety of the taxi driver; and he wanted to preserve any forensic and surveillance evidence that the taxi and its cameras might yield.

[10] D.C. Provender was able to speak with a Beck Taxi representative named Tanya at 9:56 p.m. that evening. Tanya searched Beck’s database and reported that Beck received three service calls around the relevant time to make a pickup in the general area of the shooting. Only one of the calls, which was to the area of 290 Dixon Road, was of interest. Tanya provided the call details to D.C. Provender, including the following: there was a call for service to that address at 2:23 p.m.; the order was made by telephone; the owner/driver of the cab that picked up the fare was Khaliif Jama; the cab’s number was 7195; the fare actually started at 3:05 p.m. and ended at 3:24 p.m.; and Beck’s GPS information showed the route the taxi followed and indicated that the call ended in the area of Speers Road in Oakville. D.C. Provender also learned that Beck had been unable to communicate with Mr. Jama by phone and had sent a message to his computer with no response. D.C. Provender obtained Mr. Jama’s phone number from Beck and passed all of this information to Detective Henkel.

[11] Mr. Jama’s unresponsiveness heightened Detective Henkel’s concern about his safety. At 11:44 p.m., Detective Henkel tried unsuccessfully to reach Mr. Jama at the number provided by Beck and asked D.C. Provender to call Beck again. She did so at 11:52 p.m. and spoke to Kimberley Jordan, a customer service supervisor. D.C. Provender testified that she sought additional information from Beck at this time because the police were aware that the murder suspects were in the taxi, they knew that Beck had tried to contact the driver but could not reach him, and they were concerned about his safety. Ms. Jordan told her that the taxi had been located via their GPS at a FedEx location at Bramalea Road and Derry Road East in Mississauga.

[12] At 12:05 a.m. on October 6, 2017, upon receiving this information and in an effort to protect the taxi driver, Detective Henkel detailed Detective Allen of Major Crime to go to that area to attempt to locate the driver, seize the car, and bring the driver in for an interview.

[13] At 12:18 a.m., Mr. Jama called Detective Henkel. He told him that he was transporting a fare to Yonge Street and agreed that he would then meet Detective Henkel at 23 Division. The detective remained concerned about the safety of Mr. Jama and also about securing his taxi for forensic examination. He asked D.C. Provender to call Beck again and verify the driver’s location. She did so and reported back that he was on the move near Carlingview Drive and Dixon Road in Toronto.

[14] At 12:58 a.m., D.C. Provender sent an email to Ms. Jordan, in which she said:

Hello again,

The call that he got at 2:30, was it generated by our dispatch? Are we able to get the call info if possible.

Thanks again for your help. This is really appreciated.

Stephanie

[15] While it is far from clear to me what D.C. Provender was asking for in this email, I am prepared to assume that she was asking for a copy of the call ordering a taxi at 2:23 p.m. on October 5, 2017.

[16] At 1:13 a.m., Ms. Jordan, who had obviously been in communication with Mr. Jama, told D.C. Provender in an email that the driver was not sure which building his passengers went into, but said that they went west.

[17] At 1:14 a.m., Mr. Jama attended 23 Division. Only then did Detective Henkel know that Mr. Jama was safe. Detective Henkel interviewed Mr. Jama and instructed that his taxi be seized. Mr. Jama provided the phone number that had ordered the taxi, the details of the trip to Oakville, and the general drop-off area.

[18] At 1:42 a.m., Ms. Jordan emailed a copy of the recording of the service call made at 2:23 p.m. on October 5, 2017 to D.C. Provender.

[19] At 2:49 a.m., D.C. Provender asked Ms. Jordan in an email for a screenshot of the dispatch call. Ms. Jordan sent the screenshot to D.C. Provender at 3:10 a.m.

[20] As I have said, the October 5, 2017 records under consideration consist of a copy of a Beck Taxi service order and the corresponding audio recording. It is important to understand what these records actually are. Joe MacDonald, who is the driver supervisor at Beck Taxi, testified about them on this application.

[21] The Toronto Municipal Code requires taxi brokers such as Beck Taxi to maintain business records that include information in relation to all trips dispatched by the broker. Beck complies with this requirement. It maintains a record of the service details of every taxi trip taken in their taxis. Mr. MacDonald testified that Beck keeps these records “infinitely in a cloud.” Beck’s privacy policy, which is available on its website, makes no mention of service orders made by telephone.

[22] During the afternoon and evening of October 5, 2017 and into the early hours of October 6, 2017, the police obtained most of the information subsequently made available to them in the October 5 service order and recording. They learned that the call was made by telephone at 2:23 p.m. requesting service at 290 Dixon Road, that it was answered by cab number 7195, which was owned and driven by Khaliif Jama, and that the fare started at 3:05 p.m. They also learned the route taken, that the fare ended at 3:24 p.m. in the area of Speers Road in Oakville, that Beck had been unable to communicate with the driver while on route by phone or computer, and Mr. Jama’s phone number. Additionally, police learned that sometime after the fare was completed, the taxi had been located at a FedEx at Bramalea Road and Derry Road East in Mississauga, that it was on the move, and that it was subsequently near Carlingview Drive and Dixon Road in Toronto.

[23] In addition, when Mr. Jama was interviewed by Detective Henkel, he provided the trip details, including the phone number that was used to call for the taxi and the general drop-off area.

[24] A service order is a digital document that is automatically generated for the service representative when a caller requests a taxi. The phone number used to make the call (in this instance, (437) 990-1367) is entered automatically, as are the date and time. Details about the assignment of the driver, his vehicle and licence number, the dispatch of the driver, the driver’s arrival time at the place of the fare, the start and end times of the fare, and the payment details are filled in later by a dispatcher or the driver. The only information communicated by the caller that is entered by the service representative are the pickup address (in this instance, 290 Dixon Road) and the name given by the customer (in this instance, Jamal).

[25] The audio accompanying the service order adds nothing. It is very brief. The only information communicated by the caller is the pickup address and a first name. Of course, the call also discloses the sound of the caller’s voice.

Relating to the September 28 - October 3, 2017 Beck Taxi Records Obtained in May 2020

[26] In May 2020, after the accused had been arrested, charged, and ordered to stand trial for the first degree murder of Mr. Bihi, the police asked Beck to provide additional records relating to service orders from phone number (437) 771-2166, which the Crown alleges was used by Mr. Chaudhry in late September and early October 2017. Needless to say, by May 2020, the police were in possession of considerably more information about the circumstances surrounding the killing of Mr. Bihi than they had been on October 5 and 6, 2017. It is important for the purpose of the application to summarize some of that information.

[27] The police knew from the information and records obtained from Beck Taxi on October 5 and 6, 2017, and from information provided by Mr. Jama, that the taxi in which the accused allegedly made his escape had been ordered by telephone. It was ordered from the phone number (437) 990-1367. I note that that the phone associated with this number was registered under a false name, Jamal Ahmed, and to a false address. The taxi was initially ordered to 290 Dixon Road, across the street from where Mr. Bihi was killed. The taxi picked up a single passenger at that location. As I have said, the Crown alleges that that person is Mr. Omar. There is other evidence which links Mr. Omar to use of (437) 990-1367 earlier that day. However, the taxi driver distinctly remembered that Mr. Omar did not have a cell phone on him in the taxi.

[28] After entering the taxi, Mr. Omar instructed the taxi driver to wait for his friends. When the driver inquired further, Mr. Omar told him to call (437) 990-1367, which he did. A male voice answered the call and said, “We’re coming.” Mr. Omar directed the taxi onto Dixon Road to wait at the end of the path leading from the murder site. There, two men matching the descriptions of Mr. Chaudhry and Mr. Ali entered the taxi. Mr. Chaudhry and Mr. Omar are known associates. It is the Crown’s position that the call to Beck was made by Mr. Chaudhry, or perhaps by Mr. Ali, and that Mr. Omar had provided his phone to Mr. Chaudhry that afternoon so that he or Mr. Ali could call the cab at the right moment. Mr. Omar was expected to hold the taxi for them on Dixon Road to facilitate their getaway after the shooting.

[29] The taxi driver was directed to drive the three men to 55 Speers Road, a multi-story apartment building in Oakville. Upon arrival, surveillance footage from the area captured three males matching the descriptions of Mr. Chaudhry, Mr. Ali, and Mr. Omar walking off-camera for less than two minutes. When they return, the persons said to be Mr. Omar and Mr. Ali are dressed the same, but the person said to be Mr. Chaudhry is wearing different clothing. All three males then walk to the elevator bay and into the elevator.

[30] On October 7, 2017, the police executed a search warrant at 55 Speers Road, Unit 1108. Moments before the front door was breached, police officers stationed outside the building saw a satchel fall from the balcony of Unit 1108 to the ground. They seized the satchel, which contained a handgun. Forensic analysis later confirmed that shell casings located at the scene of the murder were fired from this gun, raising the inference that it was the gun used to kill Mr. Bihi.

[31] When the police entered the unit, Liban Hussein, said by the Crown to be an associate of Mr. Chaudhry, was in the unit with two visitors. The Crown alleges it was Mr. Hussein who threw the firearm over the balcony. Police located a second firearm and drugs, scales, and approximately $27,000 in cash in the unit. Unit 1108 is leased to Mr. Chaudhry. His chequebook was located in a kitchen drawer with a magazine that fit the murder weapon. Mr. Chaudhry’s fingerprints were located in two places in the unit.

[32] On March 25, 2020, Mr. Cruess, one of the counsel for the Crown assigned to this prosecution, sent an email to Detective Henkel. Among other things, he asked Detective Henkel to apply for a production order to obtain Beck Taxi records for telephone number (437) 771-2166, which, as I have indicated, the Crown alleges was a phone number used by Mr. Chaudhry in late September and early October 2017. Crown counsel has outlined the evidence upon which this allegation rests, and I need not repeat it here. It should be noted, however, that the phone associated with this number was also registered under a false name, Khalid Ali Mohamed, and to a false address. Although not explicitly stated, it seems apparent that the purpose of obtaining information about service calls to Beck Taxi made from (437) 771-2166 shortly before October 5, 2017 was to obtain evidence that would support an inference that the owner of that phone number was the same person who used (437) 990-1367 to call the taxi on October 5, 2017, and, ultimately, that Mr. Chaudhry was the person fleeing the murder scene.

[33] On May 13, 2020, Detective Henkel forwarded the email from Mr. Cruess to D.C. McPherson, who had joined the homicide squad in April 2020. He asked her to assist with the things outlined in Crown counsel’s email, including obtaining the Beck records. He told her to read the latest search warrant information to bring herself up to speed on the investigation. With respect to Beck, he asked her to obtain historical data about telephone number (437) 771-2166, including any audio, payment methods, cab driver names, pickup and drop-off locations, and GPS information. He told her, based on his experience, that Beck most likely would not require a production order, but that things might have changed and she should speak to a representative of the company about their requirements.

[34] Detective Henkel was asked to explain why he did not think a production order was necessary. He explained that, as a homicide investigator, he keeps the question of a reasonable expectation of privacy in mind. However, he reasoned that there was no reasonable expectation of privacy in taxi records of the sort he was asked to gather, so no production order was necessary unless the taxi company required one. He had obtained such records in the past and said that they consist only of tombstone information. At most, they would include the first name of a customer. No private information, such as bank account or credit card information, would appear on the documents.

[35] On May 14, 2020, D.C. McPherson sent an email to Mr. MacDonald at Beck Taxi asking for assistance in relation to an ongoing homicide investigation. Mr. MacDonald replied that he was happy to assist, and asked D.C. McPherson to send any relevant information. She advised him that she was looking for historical information, specifically “in regards to ride pickup’s and drop offs, payment methods, names, audio, GPS, cab driver etc.” for phone number (437) 771-2166.

[36] D.C. McPherson ended her email with these words: “Let me know if you need anything else.” She testified that her intention in saying this was to ensure that Beck did not require a production order. She agreed that her language was vague and attributed it to her inexperience. She agreed that she ought to have been more specific.

[37] Later that day, Mr. MacDonald sent details relating to a number of fares associated with phone number (437) 771-2166, together with 12 audio files, to D.C. McPherson. I will not outline the additional communications between D.C. McPherson and Mr. MacDonald except to say that, in the end, Mr. MacDonald forwarded to D.C. McPherson copies of the seven Beck Taxi service orders from phone number (437) 771-2166 made between September 28 and October 3, 2017 and the corresponding audio recordings of those service orders that are in issue on this application.

Relating to Beck’s Privacy Policies

[38] On October 16, 2020, shortly before the commencement of the hearing of the pre-trial motions in this case, D.C. McPherson wrote to Mr. MacDonald and asked about Beck’s policies about releasing client information to the police without judicial orders. She also inquired about any disclaimers Beck may have on its website or its mobile application alerting patrons to the fact that their information may be shared with the police.

[39] Mr. MacDonald was asked about Beck’s privacy policies when he testified. In response to D.C. McPherson’s inquiry, he had located a policy on Beck’s website and ascertained from Beck management that it was in place in 2017. In fact, he was told, it was generated when the website was created. He testified that he was not previously aware of the policy. I understood him to mean that he was not aware of this before October 2020, although at another point in his evidence, Mr. MacDonald said he was aware of the policy when D.C. McPherson made her first inquiries of him in May 2020. Regardless, at no time was his understanding of it more than vague, including when he testified. As he put it, it was not his “end”. As I noted above, Mr. MacDonald was Beck’s driver supervisor. He had been a Beck driver for several years, then did some construction work before taking this position, which he has held for about 12 years. In the course of his duties, he has provided information to the police “multiple times before.” When asked about production orders, it was clear that he has little understanding of them. Despite his lack of meaningful knowledge about the policy, he was examined and cross-examined about it.

[40] Mr. MacDonald testified that as a representative of Beck, he wanted to be a good corporate citizen. He also said that he placed the safety of Beck’s customers first. When D.C. McPherson sent an email to him asking for assistance, he was aware that it was in relation to an ongoing homicide investigation. He did not know when the homicide took place and had no idea whether anyone’s safety was at risk. He did not believe that Beck’s record of either a customer’s pickup address or their computer-generated phone number was personal information.

[41] In the course of questioning, the policy was shown to Mr. MacDonald and a copy was provided to me. I have reviewed it. Despite the attention paid to it in the examination of Mr. MacDonald and in argument, it appears to me that it has no application to service orders made by telephone. The policy is clearly stated to relate to “this website.” It is said to cover “use and disclosure of … personal information, which is collected through or in connection with this Website.” The policy defines “This Website” as “all the web pages related to the Beck Taxi site excluding any links to third party sites.” Beck Taxi is stated to be “responsible for the personal information collected on this Website.” The list goes on. It is hard to imagine how Beck could more clearly limit the policy to data collected through or in connection with its website.

[42] In any event, with respect to “personally identifiable information” collected on its website, Beck states:

However, except as set out in this Privacy Policy, we will not disclose any personally identifiable information without your permission unless we are legally entitled or required to do so (for example, if required to do so by legal process or for the purposes of prevention of fraud or other crime) or if we believe that such action is necessary to protect and/or defend our rights, property or personal safety and those of our users/customers etc.

ANALYSIS

[43] The accused applies to exclude the above-described records pursuant to s. 24(2) of the Charter, since they were provided by Beck Taxi to the police without judicial authorization. He says that the acquisition of these records by the police violated his rights under s. 8 of the Charter, which guarantees to everyone the right to be secure against unreasonable search and seizure.

[44] In R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 11, Côté J. summarized the basic interpretive structure of s. 8. She said that it consists of two stages. In the first stage, the applicant must show that a state act constituted a search or seizure because it invaded his or her reasonable expectation of privacy in the subject matter of the search. In the second, the applicant must show that the search or seizure was itself unreasonable.

[45] The accused takes the position that he has a reasonable expectation of privacy in the information contained in the Beck Taxi service order from phone number (437) 990-1367 made on October 5, 2017, the seven Beck Taxi service orders from phone number (437) 771-2166 made between September 28 and October 3, 2017, and in the corresponding audio recordings of those service orders. As a result, he says that the police were obliged to obtain production orders pursuant to s. 487.014 of the Criminal Code prior to their acquisition of those items. Their failure to do so violated his right to be secure from unreasonable search and seizure.

[46] I begin with the first stage inquiry mandated in Jones.

First Stage: Did the police’s acquisition of Beck records voluntarily provided to them without judicial authorization invade Mr. Chaudhry’s reasonable expectation of privacy?

[47] The accused’s claim in this case is to informational privacy in the Beck records acquired by the police. The meaning of informational privacy has been explored in several decisions of the Supreme Court of Canada, and conveniently summarized by Cromwell J. in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at paras. 24-30. It includes information that tends to reveal intimate details of an individual’s lifestyle and personal choices. The accused argues that the Beck records relate to the interactions between Beck Taxi and phone numbers associated with the accused that reveal such details about him and, accordingly, the state act of acquiring these records constituted a search and seizure. In my examination of this claim, I am guided by the decision in Spencer.

[48] The court in Spencer directs, at paras. 17-18, that a court should assess whether there is a reasonable expectation of privacy by considering and weighing a large number of interrelated factors. These include factors that relate to the nature of the privacy interests implicated by the state action, as well as factors more directly concerned with the expectation of privacy, both subjectively and objectively viewed, in relation to those interests. These factors must be adapted to the circumstances of the particular case and looked at as a whole. They may be grouped, for analytical convenience, under four main headings: (1) the subject matter of the alleged search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances. In the end, however, the determination is normative, involving value judgments made from the perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy.

[49] I will discuss each of the four factors in turn.

(1) The Subject Matter of the Alleged Search

[50] Undoubtedly, the information sought and obtained from the records is innocuous. With respect to the records obtained on October 5 and 6, 2017, it contains

(i) The telephone number from which a taxi order was placed (I note that the phone number used by the caller and recorded in the records is not information communicated by the caller, it is generated mechanically by the placing of the call)

(ii) The place where the caller asked to be picked up

(iii) The first name given by the caller

With respect to the records obtained in May 2020, it contains

(i) Dates when Beck taxis were ordered from phone number (437) 771-2166, a phone number associated with the accused

(ii) The place where the caller asked to be picked up

(iii) The first name given by the caller

[51] Clearly, this information stands far from what the court in R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293, describes as “a biographical core of personal information that individuals in a free and democratic society would wish to maintain and control from dissemination to the state”, the acquisition of which would clearly be an invasion of informational privacy. The accused says that the information shows something about his movements, phone number, conversations, and use of first names. I accept this characterization, assuming, as I must, that it is him placing the service calls, with the caveat that what it shows about his movements is extremely limited – simply the calling for a taxi to particular locations on a few occasions. What it shows about his conversations is next to nothing. That said, I do not foreclose the possibility that even scant information can be highly revealing. As a result, despite the limited scope of the information, I must examine whether it tends to reveal intimate details of the lifestyle and personal choices of the individual: see Spencer, at paras. 27-31. That requires consideration of the remaining factors listed in Spencer.

(2) The Claimant’s Interest in the Subject Matter of the Alleged Search

[52] The accused undoubtedly has an interest in the subject matter of the alleged search. After all, it is claimed to be him making the calls and him using a taxi. The nature and extent of that interest remains to be seen.

(3) The Claimant’s Subjective Expectation of Privacy in the Subject Matter

[53] The accused has offered no evidence that he had a subjective expectation of privacy in the Beck records. I recognize, however, that on the authority of R. v. Jones, at para. 19, he may rely on the Crown’s theory to establish his subjective expectation of privacy in the subject matter of the search, or he may establish a subjective expectation of privacy by inference from the circumstances of the case. I also recognize that the evidentiary foundation necessary to establish one’s subjective expectation of privacy for the purposes of a s. 8 analysis is modest. To be clear, though, permitting the accused to rely on the Crown’s position to support his standing argument does not create automatic standing. As Harvison Young J.A. explained in R. v. Labelle, 2019 ONCA 557, 379 C.C.C. (3d) 270, at para. 31:

The point of Jones is that the accused can rely on the Crown theory to establish certain facts relevant to their s. 8 claim. The trial judge is still required to assess those facts in the “totality of the circumstances” to determine whether the accused had a reasonable expectation of privacy in a particular territorial space. [Citations omitted.]

[54] This passage was adopted by Paciocco J.A. in R. v. Greer, 2020 ONCA 795, at para. 85, who concluded in that case that despite the fact that the Crown theory included the claim that the accused had control over his girlfriend’s car, he did not have an expectation of privacy in it.

[55] In order to find that the accused had a subjective expectation of privacy in the subject matter of the search here, whether on the basis of the Crown’s theory or the circumstances of the case, I must conclude that he would have expected his movements to remain a private exchange of information with Beck Taxi. I cannot draw that inference from the Crown’s theory.

[56] But the accused submits that his subjective expectation of privacy has been established by inference from the circumstances of the case. It is true that in R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 37, and in R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 38, an expectation of privacy was presumed so that information about what happens inside the home is regarded by the occupants as private. Similarly, in R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 43, the appellant’s subjective expectation of privacy in the informational contents of his computer was inferred from his use of the computer to browse the Internet and to store personal information on the hard drive. And in Spencer, at para. 19, the appellant’s subjective expectation of privacy in his online activities was inferred from his use of the network connection to transmit sensitive information.

[57] The accused argues that I should infer that, much like the accused in R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527, he expected his movements to remain a private exchange of information between himself and Beck Taxi. As I see it, the only way I can draw that inference from the circumstances of the case is if I am first satisfied that a reasonable person would have expected his movements to remain a private exchange of information with Beck Taxi. That, of course, is the very issue that I must decide when I consider whether his expectation of privacy was objectively reasonable. In other words, the two issues rise or fall together. As a result, I will turn immediately to objective reasonableness without resolving the question of whether the accused had a subjective expectation of privacy.

(4) The Objective Reasonableness of the Claimant’s Expectation of Privacy Having Regard to the Totality of the Circumstances

[58] This line of inquiry is usually premised on the accused first establishing that he had a subjective expectation of privacy in the subject matter. But here, as I have explained, any assumption or inference of the accused that he had a subjective expectation of privacy arises only if he had an objectively reasonable expectation of privacy.

[59] McLachlin C.J. noted in R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 24, that, “Over the years, courts have referred to a number of factors that may assist in determining whether it was reasonable to expect privacy in different circumstances: see Cole, at para. 45; Tessling, at para. 32; Edwards, at para. 45.” There is no shopping list applicable to each case. In Marakah, McLachlin C.J. reviewed only the factors that figured most prominently in argument. She then considered: (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. As I will explain, the issues in this case bear some similarity to the issues in Marakah, and the three considerations that were the focus of that decision will be my focus here. However, for reasons that will soon become clear, I will divide the second factor into two parts: (a) secrecy and (b) anonymity.

[60] In Marakah, the police seized two cell phones, one belonging to the appellant and the other to his confederate, Mr. Winchester. The police obtained copies of the text messages used to convict the appellant from both phones. The application judge concluded that the appellant’s cell phone was seized without legal authorization and excluded the copies of the messages obtained from his phone. He also concluded that the police searched Mr. Winchester’s phone without legal authority to do so; however, he held that the appellant did not have standing to challenge the latter search because he did not have a reasonable expectation of privacy in the copies of the messages stored on Mr. Winchester's phone: see para. 91. Marakah, like this case, focussed on the expectation of privacy of one individual in information given to another. While Marakah is otherwise quite different than this case, similar considerations are in play.

a. The Place of the Search

[61] Place may be helpful in determining whether a person has a reasonable expectation of privacy for the purposes of s. 8. The home is at one end of the spectrum. Material stored in one’s computer or cellphone are close behind. Information disseminated to the public or in public view are at the other end of the spectrum. Here, the place of the search is in the business records of Beck Taxi. Leaving aside the fact that Beck handed the material to the police voluntarily, it is beyond dispute that there is a diminished expectation of privacy in business records. As Watt J.A. noted when speaking of “commercial records accumulated by a third party in a regulated industry” in R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 137, “By any standard of measurement, the expectation of privacy here was significantly reduced.”

[62] I note, however, that the accused says that the information acquired by the police says something about his movements. In addition to considering the place where the records come from, I will also consider the place where the activity the records reveal took place. Here, the latter took place in public, in a taxi taking the accused from point A to point B. In Wise, at para. 6, Cory J. made a point that has been repeated in innumerable cases, that “although there remains an expectation of privacy in automobile travel, it is markedly decreased relative to the expectation of privacy in one’s home or office.”

[63] Of course, acknowledging that there can be some expectation of privacy in business records or in activities in a motor vehicle is a far cry from saying that the accused had an objectively reasonable expectation of privacy in the acquisition of Beck’s records. I will go on to the other considerations.

b. The Private Nature of the Information

[64] As is explained in Spencer, at paras. 38-44, informational privacy includes at least three conceptually distinct, although overlapping understandings of privacy. These are privacy as secrecy, privacy as control, and privacy as anonymity. The accused submits that all three aspects of privacy are engaged in this case. As I have indicated, consistent with the approach in Marakah, I will deal with control as a separate factor, and will consider secrecy and anonymity as separate items under the present heading.

i. Secrecy

[65] The notion of privacy as secrecy in the context of informational privacy in Spencer relates to information about a person that is, in a fundamental way, their own. Not all information about an individual is private. It is both inevitable and necessary for people who live in a community to share a great deal of information with others. For this reason, it does not fall within the purpose of s. 8 to protect the privacy of all personal information.

[66] The purpose of s. 8 of the Charter in the context of informational privacy is “to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state”: Plant, at p. 293 and Marakah, at para. 31. It follows that the potential to reveal private information is a factor in determining whether the Beck records attract a reasonable expectation of privacy and are protected by s. 8. By analogy to Marakah, the focus is not on the actual contents of what the accused said to Beck, but rather on the potential of what was said to reveal personal or biographical information. In other words, “[w]hat matters is whether, in the circumstances, a search of an electronic conversation may betray ‘information which tends to reveal intimate details of the lifestyle and personal choices of the individual’ (Plant, at p. 293), such that the conversation’s participants have a reasonable expectation of privacy in its contents, whatever they may be”: Marakah, at para. 32.

[67] Turning back to this case, the accused argues that the Beck records relate to interactions between Beck Taxi and phone numbers associated with him that reveal intimate details of his lifestyle and personal choices. I do not agree. I am of the view that there is nothing secret about the information disclosed in the calls, nor in what they reveal about the accused. Calling for taxis on a cellphone, doing so frequently, using particular first names, and being picked up at particular locations discloses no intimate details of lifestyle or personal choices. In an unbroken line of cases, trial courts in this province have concluded that a person does not have a reasonable expectation of privacy in his or her phone number and basic contact information: see R. v. McBean, 2011 ONSC 878, at paras. 20-22; R. v. Khan, 2014 ONSC 5664 at para. 16-32; R. v. Lattif, 2015 ONSC 1580, at paras. 6-10; R. v. Browne, 2017 ONSC 5046, at paras. 56-71; and R. v. South, 2017 ONSC 6356, at paras. 64-69. The same conclusion was reached by the British Columbia Court of Appeal in R. v. Hutchings (1996), 1996 CanLII 703 (BC CA), 111 C.C.C. (3d) 215, at paras. 21-26, leave to appeal refused, [1997] S.C.C.A. No. 21. This information stands very far from the biographical core of personal information contemplated in Plant and Marakah.

[68] However, I am mindful that I must take a broad and functional approach to this issue, and must look not only at the nature of the precise information acquired, but also at the nature of the information that it reveals: see Spencer, at para. 26. As I have already noted, the accused also says that the information shows something about his movements, conversations, and use of first names. I agree that it says something about these things, but what it says is very limited – simply that he called for a taxi to particular locations on a few occasions and referred to himself as Jamal. I do not foreclose the possibility that even scant information can be highly revealing. But this information is not. The information the Beck records reveals cannot be characterized as intimate details of his lifestyle or his personal choices: see Spencer, at paras. 27-31.

[69] For purposes of comparison, I look to Marakah, to R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, and to the decision of the Court of Appeal in R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525.

[70] In Marakah, the majority was of the view that the texts sent by the appellant were private in nature. In reaching that conclusion, the court took into account the private nature of texting more generally. McLachlin C.J. noted that people may be inclined to discuss personal matters in electronic conversations precisely because they understand them to be private. The receipt of the information is confined to people to whom the text message is sent.

[71] But private text messaging between individuals is a far cry from calling a cab. As Moldaver J. stated in Marakah, at para. 106, in agreement with the majority on this issue:

Text message conversations are objectively private in nature and constitutionally protected by s.8. They may, and often will, contain intimate and deeply personal information that is central to one's biographical core. When text message conversations are sheltered from public access on a personal phone, there is no basis for arguing that they are not private in nature, such that the police would be relieved from having to comply with s. 8 of the Charter: see Fearon, at paras. 51-54.

[72] It seems obvious to me that a simple service order for a taxi mentioning one’s first name and where one wishes to be picked up cannot be compared to private texting. The information conveyed in a taxi service order is not only minimal, but also, as I have already said, stands far from a biographical core of personal information, the dissemination of which would concern individuals in a free and democratic society. A service call, or even several service calls taken together, shows next to nothing about the caller’s movements, except, perhaps, that the caller uses taxis regularly.

[73] I turn next to Gomboc. In Gomboc, an energy provider, at the request of the police, installed a digital recording ammeter on the power line running into the targeted residence. The device measured energy consumption and produced a graph displaying the pattern of energy use in the residence over a given time period. The police subsequently used that information in obtaining a search warrant for the residence. Seven of the nine judges of the Supreme Court of Canada who decided the case held that residents of a home did not have a reasonable expectation of privacy in energy consumption data provided to the police. That determination is a certain indication that the far less invasive taxi information in issue here would not attract a reasonable expectation of privacy. But before reaching that conclusion, it is necessary to consider Orlandis-Habsburgo.

[74] Orlandis-Habsburgo also concerned the admissibility of energy consumption data acquired from an energy provider by the police without prior judicial authorization. The appellants rented a home in a residential area and operated a commercial marihuana grow-op in the basement. Their energy provider noted a pattern of electricity use that was consistent with the operation of a grow-op. The energy provider forwarded information pertaining to the electricity use in the residence to the police, who began an investigation. Ultimately, relying in part on the energy consumption information, the police were able to obtain a search warrant for the residence. The police executed the warrant, found the grow-op, and charged the appellants with production of marihuana and related offences.

[75] At trial, the appellants argued that their s. 8 rights were violated when the police acquired energy consumption data from their energy provider without their consent or prior judicial authorization. The trial judge rejected this argument and the appellants were convicted. On appeal, Doherty J.A., for the court, concluded that there was a s. 8 violation, but admitted the evidence under s. 24(2) of the Charter.

[76] Doherty J.A. began his analysis by conducting a careful and detailed analysis of earlier cases dealing with obtaining information concerning energy consumption without prior judicial authorization. In particular, he examined Gomboc closely. He accepted that the information available from the data in Orlandis-Habsburgo could not be meaningfully distinguished from the information available from the data in Gomboc, and that seven of nine judges of the Supreme Court held that residents of a home did not have a reasonable expectation of privacy in energy consumption data provided to the police. But he went on to analyze the basis of their conclusions, which are found in three separate judgments: Deschamps J. writing for four members of the majority, Abella J. writing for three, and McLachlin C.J. and Fish J. jointly authoring a dissent.

[77] He noted that while Deschamps J. was of the view that the data did not reveal the kind of information that attracted a privacy claim, Abella J. took a different view. She held that the data could reveal personal information about a customer because of the strong and reliable inference that can be made from the patterns of electricity consumption it conveys. Her conclusion that there was no reasonable expectation of privacy in the data rested on her assessment of the nature of the relationship between the service provider and the customer/accused. The two dissenters agreed with Abella J. that the nature of the information revealed by the data was sufficiently revelatory to potentially attract a reasonable expectation of privacy because it allowed the police to make informed hypotheses concerning the probable activities taking place within a home.

[78] After analyzing the caselaw, Doherty J.A. turned to the definition of the subject matter of the search in Orlandis-Habsburgo. He stated, at paras. 74-76:

74 … Spencer stresses that in defining the subject matter of the search when the claimant advances an informational privacy claim, one must look to the connection between the impugned investigative technique and the privacy interests at stake: Spencer, at para. 26. In the present case, the police investigative technique involved judicially unrestricted access to data generated on a continual and ongoing basis by activities within the home of the appellant.

75 The energy consumption data given to the police by Horizon had two informational components. First, it revealed total energy consumption over a three-year period and hourly energy consumption over a two-month period. That data on its own, like the information in Plant, said very little about the activities of the occupants within the residence. However, the data and, in particular the hourly pattern of usage, as demonstrated by the Crown's evidence at trial, provided a strong inference that a marihuana grow-op was being operated within the residence. The subject matter of the search includes both the raw data and the inferences that can be drawn from that data about the activity in the residence. In the same way that the subscriber information in Spencer permitted a strong inference as to certain internet activity at a given point in time, the energy consumption data supplied by Horizon permitted a strong inference as to a certain ongoing activity within the residence.

76 Activities conducted within one’s home, a bastion of personal privacy throughout the history of the common law, fall at the centre of the zone of personal privacy: Tessling, at para. 22. It matters not that the information may reveal only certain activities, or that the activities revealed are criminal: Spencer, at para. 36. The subject matter of the alleged search favours the existence of a reasonable expectation of privacy.

[79] At para. 81, Doherty J.A. described the appellants’ privacy rights in the subject matter of the data as attenuated by the energy provider’s legitimate interests, the relatively non-personal nature of the information revealed by the data, and the appellants’ substantially qualified right to control access to and dissemination of the information contained in the data. He then found that the appellants had a subjective expectation of privacy in the information, and that it was objectively reasonable.

[80] In reaching the last conclusion, Doherty J.A. looked in particular at the nature of the information in issue, the nature of the relationship between the service provider and the customer, and the applicable statutory and regulatory landscape. After noting that the energy distribution field is highly regulated, he examined in detail documents that describe the relationship between the customer and the energy provider that governed disclosure of customer information. These included documents generated by the Ontario Energy Board (“OEB”), the energy provider’s regulator, and specifically the distribution licence issued to the service provider and the Distribution System Code (“DSC”) authored by the OEB. The DSC, among other things, sets out minimum conditions governing the contractual relationship between the service provider and its customers. This review also included two documents authored by the energy provider that address its rights and obligations in respect of customer information, specifically its Conditions of Service and its Privacy Policy.

[81] At para. 85, Doherty J.A. was clear that it would be wrong to take the terms of these documents as being necessarily conclusive of the existence of a reasonable expectation of privacy, and that the documents describing the relationship between the customer and the service provider are relevant to that inquiry but are not determinative.

[82] After completing his review, Doherty J.A. concluded, at para. 111:

In the totality of the circumstances, and having regard to the analysis in Spencer, at paras. 60-65, the terms of Horizon’s licence and Privacy Policy and the provisions of the privacy legislation referenced in the Privacy Policy, I would hold that the appellants had a reasonable expectation of privacy in the energy consumption data. Horizon had an obligation to protect the privacy of the appellants’ energy consumption data, albeit a qualified obligation. However, “[a] reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter”: Cole, at para. 9. The nature and scope of the appellants’ reasonable expectation of privacy becomes relevant when assessing the reasonableness of the state conduct that intrudes upon the expectation of privacy and when considering whether evidence obtained in breach of s. 8 should be excluded under s. 24(2) of the Charter.

[83] He concluded, at para. 115, “The examination and use of that data without the appellants' consent constituted a ‘search’ and ‘seizure’ under s. 8 of the Charter” and, at para. 119:

I conclude that the examination and use of the data by the police was not authorized by law and therefore could not be reasonable within the meaning of s. 8 of the Charter. The appellants' right to be free from unreasonable search and seizure was breached.

[84] Orlandis-Habsburgo is a powerful judgment. But on close analysis, I am convinced that it is not controlling here. There are important considerations underpinning the conclusions reached by Doherty J.A. that do not exist in this case. The differences compel a different conclusion. I will enumerate those differences.

[85] First, the data given to the police in Orlandis-Habsburgo revealed total energy consumption over a three-year period and hourly energy consumption over a two-month period. In other words, the gathering of information about the appellants’ activity was persistent and of significant duration. Here, there are only a few stray taxi orders in issue. The police gathered information about occasional activity of the accused over a short period of time.

[86] Second, while the energy data collected in Orlandis-Habsburgo, on its own, did not reveal core biographical information about the appellants, it provided a strong inference as to a certain ongoing activity, specifically that the appellants were operating a marihuana grow-op. Here, the information says virtually nothing at all. It reveals no core biographical information and provides no inferences about any ongoing activity of the accused, other than that he uses Beck taxis.

[87] Third, in Orlandis-Habsburgo, the information concerned activity in a private residence. With respect to this consideration, Doherty J.A. stated, at para. 76:

Activities conducted within one’s home, a bastion of personal privacy throughout the history of the common law, fall at the centre of the zone of personal privacy: Tessling, at para. 22. It matters not that the information may reveal only certain activities, or that the activities revealed are criminal: Spencer, at para. 36. The subject matter of the alleged search favours the existence of a reasonable expectation of privacy.

[88] Here, the information relates to activity in public and in a motor vehicle. These considerations do not favour the existence of a reasonable expectation of privacy.

[89] Finally, in Orlandis-Habsburgo, Doherty J.A. focused on the nature of the relationship between the service provider and the customer as it applied to the information in issue. His examination was informed by statutory provisions that applied to the highly regulated field of energy distribution and documents governing disclosure of customer information generated by the regulator (including the energy provider’s licence) and generated by the energy provider (including its Conditions of Service and its Privacy Policy). He said that the terms of the documents were not necessarily conclusive of the existence of a reasonable expectation of privacy, but were relevant to the determination of what the community should legitimately expect in terms of personal privacy in the circumstances: see Orlandis-Habsburgo, at para 85.

[90] No such guidance is available here. While the taxi industry is undoubtedly heavily regulated, there is no evidence that any statutory provision, regulatory policies, or conditions of service touch on the disclosure of information. This is unsurprising, since taxi service is largely a one-off arrangement and not an ongoing service necessary to the maintenance of a home.

[91] I mentioned earlier in this decision that Beck did have a privacy policy that could be found on its website but concluded that it had no application to service orders made by telephone. The policy is stated to relate to the website and said to cover “use and disclosure of … personal information, which is collected through or in connection with this Website.” Even if it somehow does have application to service calls made by telephone, it is not relevant to the determination of what the community should legitimately expect in terms of personal privacy in the circumstances. The Beck employees who provided information to the police were unaware of it, the police were unaware of it, and there is no evidence that any consumers were aware of it. Given its location, it is highly unlikely that any consumers, at least those who order taxis by telephone, would be. Finally, I note that the policy is not written clearly. It is not evident to me that, if it applied, it would preclude the sharing of information that took place here.

[92] I reiterate that a simple service order for a taxi mentioning one’s first name and where one wishes to be picked up cannot be compared to private texting. The information conveyed in a taxi service order is not only minimal, but also stands very far from the biographical core of personal information that individuals in a free and democratic society would wish to maintain and control from dissemination to the state. A service call, or even several service calls taken together, shows next to nothing about the caller in most cases. I see no basis to conclude that disclosure of basic service order information offends against what the community should legitimately expect in terms of personal privacy in the circumstances.

ii. Anonymity

[93] In his factum, the accused advanced the submission that privacy as anonymity is also engaged in the circumstances of this case, because he “would have expected his movements to remain a private exchange of information between himself and Beck.” I observe immediately that this position, as framed, is untenable. His movements followed his communications with Beck, took place in public, and were inevitably seen by others. He could not have expected that they remained private with Beck. But this is not determinative. Of course, anonymity most commonly relates to activities conducted in private, or in circumstances where privacy is protected, but Cromwell J. stated in Spencer, at para. 43, relying in part on the decision in Wise, that anonymity also permits individuals to act in public places but to preserve freedom from identification and surveillance. Accordingly, the accused’s claim to anonymity bears consideration, and I will examine both of these decisions.

[94] Wise, like this case, concerned the acquisition of information about the movements of an individual in a motor vehicle. The police had engaged in monitoring the appellant’s motor vehicle through the use of a tracking device they had surreptitiously installed. Cory J., for the majority, concluded that both the installation of the device and the subsequent monitoring of the vehicle violated s. 8 of the Charter, but admitted the evidence obtained through the use of the device pursuant to s. 24(2). Sopinka J., for himself and Iacobucci J. in dissent, concluded that the installation violated s. 8 and would have excluded the evidence, but found it unnecessary to consider whether the surveillance itself, in the absence of trespass, would violate s. 8. Finally, La Forest J., also in dissent, was of the view that both the installation and monitoring violated s. 8, and would have excluded the evidence.

[95] In his reasons, La Forest J., at p. 558, endorsed the following passage in M. Gutterman, “A Formulation of the Value and Means Models of the Fourth Amendment in the Age of Technologically Enhanced Surveillance” (1988), 39 Syracuse L. Rev. 647, at p. 706:

In a variety of public contexts, we may expect to be casually observed, but may justifiably be outraged by intensive scrutiny. In these public acts we do not expect to be personally identified and subject to extensive surveillance, but seek to merge into the “situational landscape.” The ability to move about freely without constant supervision by the government is an important source of individual liberty that must be addressed. A fear of systematic observation, even in public places, destroys this sense of freedom. Justice Douglas recognized the importance of this privacy value in a democratic society, commenting that free movement is as dangerous to a tyrant as free expression of ideas or the right of assembly and is, therefore, controlled in most countries.

[96] I note that although Cory J. agreed that the monitoring in Wise constituted an unlawful search, he did not share the view of La Forest J. about its seriousness. He was of the view that the expectation of privacy in a vehicle cannot be as great as that contended by his colleague.

[97] In Spencer, the court concluded that a police request made to an internet service provider for subscriber information associated with an internet protocol address that someone had been using anonymously to access and store child pornography engaged a high level of informational privacy. After referring to the comments of La Forest J. in Wise, Cromwell J. said the following:

The mere fact that someone leaves the privacy of their home and enters a public space does not mean that the person abandons all of his or her privacy rights, despite the fact that as a practical matter, such a person may not be able to control who observes him or her in public. Thus, in order to uphold the protection of privacy rights in some contexts, we must recognize anonymity as one conception of privacy: see E. Paton-Simpson, “Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places” (2000), 50 U.T.L.J. 305, at pp. 325-26; Westin, at p. 32; Gutterman, at p. 706.

[98] In my view, the similarity of the acquisition of information in this case to the acquisition of subscriber information in Spencer and the monitoring in Wise is superficial at best, and the accused’s claim that his anonymity was violated by the disclosure of his movements in Beck taxis is very frail. One would have to conclude that anonymity is nearly all-encompassing to reach that conclusion.

[99] I said earlier, in relation to secrecy, that not all information about an individual is private; private information tends to reveal intimate details of the lifestyle and personal choices of the individual. There is no reason to cast the net of anonymity more broadly. Nothing in Spencer or Wise suggests that privacy should extend to an expectation that some hypothetical person may have of remaining fully anonymous in public.

[100] In Spencer, at para. 35, Cromwell J. acknowledged that privacy is a “broad and somewhat evanescent concept” and that scholars have noted the theoretical disarray of the subject and lack of consensus about its nature and limits. The briefest examination of the academic literature about anonymity, particularly in public places, supports the same conclusion. There is no consensus on the meaning of anonymity in public places, or even whether it is properly seen as a part of, or separate from, privacy. I am unqualified to enter the debate. I refer to it only to say that in neither Spencer nor Wise did the court purport to address the limits of anonymity, and nothing in either case suggests that privacy, for s. 8 purposes, encompasses a broad right to remain anonymous in public.

[101] As is readily apparent, what concerned La Forest J. in Wise and Cromwell J. in Spencer is very unlike the concern raised by the accused in this case. La Forest J. and Cromwell J. were concerned about extensive surveillance and constant supervision of individuals in public places that is destructive of freedom. It would trivialize that important matter to imagine that the acquisition of Beck records about taxi orders could be seen in the same way. The acquisition does not involve surveillance at all. It is neither contemporaneous nor constant nor extensive. It simply involves the retrieval of the most basic information about the ordering of a taxi by telephone on a small number of occasions. It does not remotely touch on the anonymity of the accused. Were it not for the Crown’s desire to adduce it in evidence, the claimant would have no interest whatever in the subject matter of the alleged search.

[102] It is true that, when discussing anonymity in public, Cromwell J. said that the mere fact that someone leaves the privacy of their home and enters a public space does not mean the person abandons all of their privacy rights, despite the fact that they may not be able to control who observes them in public: see Spencer, at para. 44. But he did not say that every small breach in the armour of anonymity in public can, for the purposes of s. 8 analysis, be treated as an invasion of privacy.

[103] As a practical matter, a line must be drawn. Continuous and extensive electronic surveillance of individuals in public places crosses the line. But the simple observation of people with known cellphone numbers being picked up by taxis at particular locations, even repeatedly, does not, even if the observation is done by police officers investigating crimes. Neither does the acquisition of taxi records that capture such mundane information for business purposes. The procurement of such records by the police is not surveillance. It is neither contemporaneous nor constant, extensive nor intrusive. It simply involves the retrieval of the most basic information about the ordering of a taxi from a particular telephone number on a small number of occasions. It does not tend to reveal intimate details of the lifestyle and personal choices of the accused. It does not remotely touch on his anonymity or his privacy.

[104] Doherty J.A. placed an appropriate boundary around anonymity in R. v. Ward, 2012 ONCA 660, 97 C.R. (6th) 377, at para. 71. He stated:

Personal privacy is about more than secrecy and confidentiality. Privacy is about being left alone by the state and not being liable to be called to account for anything and everything one does, says or thinks. Personal privacy protects an individual’s ability to function on a day-to-day basis within society while enjoying a degree of anonymity that is essential to the individual's personal growth and the flourishing of an open and democratic society.

[105] The personal privacy argued for by the accused here goes far beyond protecting his “ability to function on a day-to-day basis within society while enjoying a degree of anonymity that is essential to [his] personal growth and the flourishing of an open and democratic society.”

c. Control Over the Subject Matter

[106] Control over the place searched and things seized may be assessed in determining whether an accused has a reasonable expectation of privacy for the purposes of s. 8 analysis: see R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 45. Where information is the subject matter of a search, whether it is stored in a computer or communicated to another person, control over the information may also be assessed. A person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it: see R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 51-54 and Marakah, at paras. 38-39. Although “technological reality” deprives an individual of exclusive control over their personal information, they may yet reasonably expect that information to remain safe from state scrutiny: see Cole, at para. 54.

[107] As a result, a person who stores information on a computer has a reasonable expectation of privacy in that information, even where the person storing the information does not have exclusive control over the computer or exclusive access to what has been stored: see Cole, at paras. 51-58. The same applies to a person who sends text messages to another individual.

[108] In the case of text messages, individuals exercise meaningful control over information they send by making choices about how, when, and to whom they disclose the information: Marakah, at para. 39. The risk that recipients can disclose the text messages they receive does not change the analysis. To accept the risk that a co-conversationalist could disclose an electronic conversation is not to accept the risk of a different order that the state will intrude upon an electronic conversation absent such disclosure: see R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, at pp. 44 and 51; Cole, at para. 58; and Marakah, at para. 40.

[109] A person does not lose control of information for the purposes of s. 8 simply because another person possesses or can access it. Even where technological reality deprives an individual of exclusive control over personal information, they may yet reasonably expect that information to remain safe from state scrutiny. Mr. Marakah, for instance, shared information with Mr. Winchester; in doing so, he accepted the risk that Mr. Winchester might disclose this information to third parties. However, in accepting this risk, Mr. Marakah did not give up control over the information or his right to protection under s. 8.

[110] In my view, this reasoning has no application to the circumstances here. Ordinarily, information stored on a computer and information sent in a text message are private in nature. The same applies to information conveyed on the telephone. But the same cannot be said about a telephone order for a taxi. The simple ordering of commonplace goods or services, by telephone or otherwise, is not inherently private. The person placing such an order would not generally expect that information to remain safe from scrutiny. Where they did, they would expect to have to say so. The circumstances here are akin to abandonment. Like the householder who leaves garbage on the street to be picked up by garbage collectors in Patrick, the person who calls for a taxi has no expectation that the content of his call, like the contents of the garbage, will remain confidential.

[111] I conclude that the accused did not have an objectively reasonable expectation of privacy in the Beck Taxi records acquired by the police, having regard to the totality of the circumstances.

Conclusion on the First Stage

[112] Having regard to my analysis of the factors I considered to be pertinent in this case, I conclude that the acquisition of records voluntarily provided by Beck to the police without judicial authorization did not invade the accused’s reasonable expectation of privacy, and accordingly the state act of acquiring the records did not constitute a search or seizure. In case I am wrong and the state act did constitute a search or seizure, I will go on to the second stage of the interpretive structure of s. 8 of the Charter.

Second Stage: Was the search or seizure unreasonable?

[113] If there was a search or seizure in this case, then it was obviously conducted without judicial authorization and is presumptively unreasonable: see R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265. The Crown bears the burden of rebutting this presumption. A search will be reasonable if: (a) it was authorized by law; (b) the law itself was reasonable; and (c) the search was carried out in a reasonable manner: see Collins, at p. 278. In this case, I need only consider whether the search was authorized by law.

[114] With respect to the search and seizure flowing from the email sent on May 14, 2020 by D.C. McPherson to Mr. MacDonald asking for assistance in relation to an ongoing homicide investigation, the only possible authority for the request is s. 487.0195 of the Criminal Code. Section 487.0195 provides that a peace officer does not need a production order “to ask a person to voluntarily … provide a document to the officer that the person is not prohibited by law from disclosing.” In Spencer, at para. 73, Cromwell J. determined that that provision, which was then s. 487.014(1), is declaratory and confirms the existing common law powers of police officers to make enquiries. However, both Doherty J. A. in Ward, at para. 50, and Cromwell J. in Spencer, at para. 71, as I understand these judgments, also held that where the voluntary co-operation of a third-party information holder with a police request for information in which an accused has a reasonable expectation of privacy amounts to a search or seizure, s. 487.014(1) does not authorize it. Dawson J. reached the same understanding of Spencer in R. v. Merritt, 2017 ONSC 366, at paras. 74-84.

[115] Accordingly, if I am wrong in my resolution of the first stage of this inquiry, then the search and seizure flowing from the email sent on May 14, 2020 was unreasonable. However different considerations apply to the search and seizure, assuming there was one, on October 5 and 6, 2017.

Exigent Circumstances on October 5 and 6, 2017

[116] Exigent circumstances have been recognized at common law, and survived scrutiny under s. 8 of the Charter, as a basis to search property without judicial authorization. Exigent circumstances include: (1) the imminent loss or destruction of evidence and (2) an imminent threat to police or public safety. While this doctrine most commonly permits searches without a warrant where a warrant would ordinarily be required, it also applies in circumstances where other forms of judicial authorization would ordinarily be required, such as an authorization to intercept private communications: see R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531. In Spencer, at para. 74, Cromwell J. acknowledged the power of the police to obtain subscriber information from an internet service provider without a production order in exigent circumstances, such as where the information is required to prevent imminent harm.

[117] Where the exigent circumstance doctrine is invoked as the authority for a search on the basis of an imminent risk of loss or destruction of evidence, a search without judicial authorization will not be justified on less than the grounds necessary for obtaining judicial authorization. This usually involves reasonable grounds to believe that evidence respecting an offence is present and “reasonable grounds to believe that the imminent loss or destruction of evidence may be prevented by a warrantless search”: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 137 (Karakatsanis J. in dissent, but not on this point) and R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456, at para. 24. Where the exigent circumstance doctrine is invoked to justify a search for the purpose of protecting the public or police officers, a lesser standard is sufficient, specifically that “there is a reasonable basis to suspect a search may prevent an imminent threat to safety”: Fearon, at para. 137 and Kelsy, at para. 34.

[118] In this case, the Crown invokes exigent circumstances on both grounds of authority. In assessing this claim, it is necessary to review the knowledge of the police investigating the shooting and killing of Mr. Bihi when they sought assistance from Beck Taxi on October 5 and 6, 2017. In brief compass, it consisted of the following:

(1) At 2:46 p.m., as a result of several 911 calls, the police learned of the shooting and that the shooter had fled in a taxi.

(2) Very soon after, uniformed officers arrived at the scene of the shooting and learned that the shooter had fled in what was likely a Beck taxi.

(3) At 3:00 p.m., a police dispatcher asked Beck to identify who picked up this fare.

(4) Late in the afternoon, homicide investigator Detective Henkel was brought up to speed and took charge of the investigation.

(5) At 6:08 p.m., Detective Henkel learned that the driver of the truck struck by the deceased’s vehicle reported that the shooter and a companion went into the forest and then jumped into a Beck taxi.

(6) Detective Henkel detailed D.C. Provender to follow up with Beck to determine if a Beck taxi did a pickup at Dixon Road and Islington Avenue at the relevant time and identify the taxi’s current location.

(7) Detective Henkel testified that he had several urgent concerns: he wanted to locate the offenders; he wanted to ensure the safety of the taxi driver; and he wanted to preserve any forensic and surveillance evidence that the taxi and its cameras might yield.

(8) At 9:56 p.m., D.C. Provender asked a Beck Taxi representative for assistance. After searching Beck’s database, the representative reported that there was a call for service to 290 Dixon Road, close to the location of the shooting, at 2:23 p.m.; the order was made by telephone; the owner/driver of the cab that picked up the fare was Khaliif Jama; the cab’s number was 7195; the fare started at 3:05 p.m. and ended at 3:24 p.m.; and Beck’s GPS information showed the route the taxi followed and indicated that the call ended in the area of Speers Road in Oakville. D.C. Provender also learned that Beck had been unable to communicate with Mr. Jama by phone and had sent a message to his computer but got no response. D.C. Provender obtained Mr. Jama’s phone number from Beck and passed this information on to Detective Henkel. Mr. Jama’s unresponsiveness heightened Detective Henkel’s concern about his safety.

(9) At 11:44 a.m., Detective Henkel tried to reach Mr. Jama at the number provided by Beck but was unable to reach him. Detective Henkel asked D.C. Provender to call Beck again.

(10) At 11:52 p.m., D.C. Provender spoke to a customer service supervisor at Beck and asked for additional information. The police were aware that the murder suspects were in the taxi and knew that Beck could not reach the driver, and were concerned about Mr. Jama’s safety. The Beck representative told D.C. Provender that the taxi had been found via their GPS at a FedEx location at Bramalea Road and Derry Road East in Mississauga.

(11) At 12:05 a.m. on October 6, 2017, in an effort to protect the taxi driver, Detective Henkel detailed Detective Allen of Major Crime to go to that area to locate Mr. Jama, seize his car, and bring him in for an interview.

(12) At 12:18 a.m., Mr. Jama called Detective Henkel. He told him that he was transporting a fare to Yonge Street and agreed to meet at 23 Division. Detective Henkel remained concerned about Mr. Jama’s safety and about securing his taxi for forensic examination. He asked D.C. Provender to call Beck again to verify the driver’s location. She did so and reported that he was on the move near Carlingview Drive and Dixon Road in Toronto.

(13) At 12:58 a.m., D.C. Provender asked the Beck representative to provide her with a copy of the call ordering a taxi at 2:23 p.m. on October 5, 2017.

(14) At 1:14 a.m., Mr. Jama attended 23 Division. Only then did Detective Henkel know that Mr. Jama was safe. Detective Henkel interviewed Mr. Jama and instructed that his taxi be seized. Mr. Jama provided Detective Henkel with the phone number that had ordered the taxi, the details of the trip to Oakville, and the general drop off area.

(15) At 1:42 a.m., Kimberley Jordan, a customer service supervisor, emailed a copy of the recording of the service call made at 2:23 p.m. on October 5, 2017 to D.C. Provender.

(16) At 2:49 a.m., D.C. Provender asked Ms. Jordan in an email for a screenshot of the dispatch call. Ms. Jordan sent the screenshot to D.C. Provender at 3:10 a.m.

[119] Based on this chronology, it is apparent that beginning at 2:46 p.m., the police had reasonable grounds to believe that an unknown man had committed a murder with a gun and that he and a confederate had fled the scene, likely still armed, in a Beck taxi. This belief was strengthened at 6:08 p.m. by the information from the truck driver. Quite clearly, Detective Henkel had reasonable grounds to believe, and, based on his evidence, did believe, that there was an imminent risk of loss or destruction of evidence (including a murder weapon) and an imminent threat to the safety of at least the taxi driver. These grounds were strengthened when Detective Henkel could not reach the driver at 11:44 p.m. Although he spoke to Mr. Jama at 12:18 a.m., he could not know if he was free of the gunman and safe, or that any evidence in the taxi was secure, until the driver arrived at the station at 1:14 a.m. and the taxi was seized.

[120] As a result, when the police sought Beck’s assistance at 3:00 p.m., 9:56 p.m., 11:52 p.m., and 12:58 a.m., they had reasonable grounds to believe that the imminent loss or destruction of evidence could be prevented by seeking documents or data as defined in s. 487.011 of the Criminal Code they knew were in Beck’s possession or control without first obtaining judicial authorization. They also had a reasonable basis to suspect, and in fact a reasonable basis to believe, that obtaining information they knew Beck possessed might prevent an imminent threat to safety. It is apparent that in the urgent and dangerous circumstances involving the flight of an armed killer in a taxi, it would not have been feasible to obtain a production order at any or all of the times I have listed.

[121] It is of course true that the last request from D.C. Provender came at 2:49 a.m., approximately one and a half hours after the exigent circumstances had come to an end. However, this request was for nothing more than the digital version of information that had already been provided orally. It does not attract fresh s. 8 scrutiny.

Conclusion on the Second Stage

[122] As a result of the foregoing analysis, in the event that I erred in my first stage s. 8 analysis and the obtaining of the records in question constituted a search or seizure, I conclude on the second stage that the seizure of the records on October 5 and 6, 2017 was not unreasonable, while the seizure in May of 2020 was unreasonable. I turn next to consider s. 24(2) of the Charter.

Charter Analysis: If either or both of the October 2017 or May 2020 seizures were unreasonable, should the evidence be admitted pursuant to [Section 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[123] If my first stage analysis is correct, then I need not consider s. 24(2). If it is not correct, but my second stage analysis is, then I need only consider s. 24(2) in respect of the May 2020 seizures. If my analysis at both stages is incorrect, then I must consider s. 24(2) in respect of both seizures. While I recognize that my conclusions on this issue will not be afforded deference, I will consider 24(2) only briefly.

[124] In considering whether or not the admission of evidence obtained in breach of a Charter right would bring the administration of justice into disrepute, three well-known Grant factors must be assessed and balanced: the seriousness of the Charter-infringing state conduct; the impact of the breach on the Charter-protected interests of the accused; and society’s interest in an adjudication of the case on its merits: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. As will be seen, I view each factor as favouring admission.

(1) The Seriousness of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)-Infringing State Conduct

[125] In respect of the 2017 breach, assuming the circumstances did not satisfy the exigent circumstances requirements, they were nonetheless fraught with danger requiring decisions to be made quickly. In addition, there was no jurisprudential guidance available to the police, who acted in good faith. Finally, the seriousness of any potential breach is attenuated by the fact that the police surely would have received judicial authorization had they applied for it: see Mahmood, at para. 136.

[126] In respect of the 2020 breach, clearly there was no urgency. Nevertheless, the police believed that they did not require judicial authorization if Beck consented to providing the records, and their belief was not unreasonable. Informational privacy is an unsettled area of the law, and there is no case to my knowledge that has addressed whether taxi records engage a reasonable expectation of privacy. Courts have ruled that comparable records, such as cell phone subscriber information and vehicle rental records, do not carry a reasonable expectation of privacy: see R. v. Telus Communications Co., 2015 ONSC 3964, at para. 37 and R. v. James, 2019 ONSC 4131, at para. 48. The seriousness of a Charter breach is diminished where the police act reasonably in an unsettled area of the law: see Spencer, at para. 77 and R. v. Orlandis-Habsburgo, 2017 ONCA 649, at para 131. While the good faith of the police is undercut to some degree by the fact that they had received prudent advice from Crown counsel to obtain a production order, it is not eliminated. Finally, once again, the seriousness of any potential breach is attenuated by the fact that the police would have received judicial authorization had they applied for it.

[127] As a result, if there was a breach of s. 8 in 2017 or in 2020, I do not consider either of them to be serious. This factor weighs in favour of admission.

(2) The Impact of the Breach on the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)-Protected Interests of the Accused

[128] This case does not involve violations of personal or territorial privacy. It concerns informational privacy in commercial records accumulated by a third party in a regulated industry: see Mahmood, at para. 137. Even if the accused had a reasonable expectation of privacy in the records, any such expectation was minimal. The records simply contain the order times, pickup locations, and one drop-off location for seven taxi orders over a one-week period. They do not contain core biographical information that reveals intimate details about the accused’s lifestyle. While it is true that the customer calls to Beck were recorded, they do not engage any significant expectation of privacy. There is an enormous distinction between a call from a customer to a company offering a service such as a taxi and a call between two private individuals. Finally, there is no evidence that the accused had a subjective expectation of privacy.

[129] As a result, if there were breaches of s. 8, they did not have a significant impact on the accused’s Charter rights. This factor also weighs in favour of admission.

(3) Society’s Interest in an Adjudication of the Case on its Merits

[130] Society has a strong interest in seeing a case of first degree murder adjudicated on its merits. The evidence in issue here is very reliable. And although it is not crucial to the Crown’s case, it is relevant for several reasons. One of these flows from the fact that in the call to order the taxi from the murder scene, the caller appears to be disguising his voice. While this makes the evidence unhelpful in identifying the caller, it supports an inference that the murder was planned. This factor also weighs in favour of admission.

(4) Balancing the Factors

[131] In light of my views about the Grant factors, weighing the three factors cumulatively, I conclude that if any or all of the evidence was obtained as a result of a breach of s. 8 of the Charter, nevertheless it should be admitted into evidence.

DISPOSITION

[132] The application brought by the accused to exclude from evidence certain records of Beck Taxi provided by that company to the police upon request without judicial authorization pursuant to s. 24(2) of the Charter on the basis that they were obtained in a manner that infringed his right to be secure against unreasonable search or seizure protected by s. 8 of the Charter, and that their admission into evidence in these proceedings would bring the administration of justice into disrepute, is dismissed.

M. DAMBROT J.

RELEASED: January 18, 2021

COURT FILE NO.: CR-19-50000522-0000

DATE: 20210118

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

ZAYD CHAUDHRY

REASONS FOR DECISION

DAMBROT J.

RELEASED: January 18, 2021

[1] In six of these calls, the caller identifies himself as Jamal. In the seventh call, the caller identifies himself as Abdi. The accused does not challenge the admissibility of the call relating to Abdi, but, for the sake of simplicity, I will treat all seven calls uniformly.

[2] I note that Beck also provided copies of several additional service orders and corresponding audio recordings from phone number (437) 990-1367 to the police. In his notice of application, the accused applies to exclude those records from evidence as well. However, he only has standing to make this request if he had a reasonable expectation of privacy in those records. To have an expectation of privacy in the records, he must, first of all, have a direct interest in the subject matter of the alleged search (see R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 13). Since the accused does not suggest, far less offer evidence, that the cell phone from which the pertinent service calls were made was his, that he ever possessed it, or that he made any of the service calls, his direct interest could only arise from the theory of the Crown or from facts alleged by the Crown, which must be assumed to be true for the purpose of standing (see Jones, at paras. 32 and 90 and R. v. Labelle, 2019 ONCA 557, 379 C.C.C. (3d) 270, at paras. 23-32). In fact, the opposite is true. Crown counsel made clear in his factum and in oral argument that the Crown alleges neither that the cell phone was the accused’s cell phone, that he made prior use of it, or that he regulated access to it, nor that he made any of the calls ordering a taxi from that phone between September 28 and October 3, 2017. It is the Crown’s theory that Faysal Omar is the owner and primary user of that cell phone and that he made all but one of the calls in issue. In light of these circumstances, it is common ground that this evidence is admissible.