COURT FILE NO.: CR-18-6239
DATE: 20210608
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PRANAVAN PRATHAB ASHOKKUMAR
Defendant/Applicant
Thompson Hamilton, for the Crown
Ehsan Ghebrai, for the Defendant/Applicant
HEARD: May 10 and 11, 2021
RULING ON CHARTER S. 8 APPLICATION
CHARNEY J.:
Introduction
[1] The applicant, Pranavan Prathab Ashokkumar, is charged with assault with a weapon. He brings this application for an Order to exclude all evidence seized pursuant to a warrant authorizing the police to search the applicant’s cell phone. The applicant argues that the Information to Obtain a Search Warrant (ITO) contains deliberate falsehoods upon which the Justice based the issuance of the warrant, and all evidence seized pursuant to that warrant should be excluded under s. 24(2) of the Charter.
[2] The Crown acknowledges that there were careless errors made in the ITO, but argues that these were innocent errors that should not result in the invalidity of the warrant or the exclusion of the evidence obtained thereby.
Facts
The Alleged Offence
[3] It is alleged that on April 23, 2018, Jerson Shanmugeswaran, was the victim of a stabbing when he attended a parking lot in the City of Markham to meet Mr. Prathab Ashokkumar to discuss an incident alleged to have taken place at a restaurant earlier in the evening.
[4] Immediately before the stabbing, Mr. Shanmugeswaran was being driven home by his friend, Vyshnave Sritharan, because he was very drunk. In one of her statements to police, Ms. Sritharan advised that while driving, she began getting messages/calls from Mr. Prathab Ashokkumar, who was asking where Mr. Shanmugeswaran was.
[5] Ms. Sritharan ended up driving Mr. Shanmugeswaran to a parking lot in order to meet up with Mr. Prathab Ashokkumar.
[6] When Mr. Prathab Ashokkumar arrived, he was with three other males. The Crown alleges that he was armed with a knife. The group, including Mr. Prathab Ashokkumar, began beating Mr. Shanmugeswaran. During the attack, Mr. Shanmugeswaran was stabbed in the leg, nicking an artery. He began to bleed profusely. He was taken to the hospital by ambulance where he remained for several days.
[7] The Crown theory is that this attack was retaliation for a perceived injustice to Mr. Prathab Ashokkumar’s girlfriend earlier in the night.
[8] Both Ms. Sritharan and another witness, Jennifer Rajaratnam, were at the scene of the stabbing and identified Mr. Prathab Ashokkumar as one of the assailants.
[9] Police involvement commenced subsequent to two 911 calls, advising firstly of a fight that was in progress, and thereafter that a party required ambulance services.
[10] Police Constable Chin-Fook was the officer in charge of the investigation. In the course of her investigation PC Chin-Fook took sworn video recorded statements from Mr. Shanmugeswaran on May 1, 2018 and from Ms. Sritharan on April 23, 2018 and May 2, 2018.
[11] The police learned Mr. Prathab Ashokkumar’ s phone number from Ms. Sritharan.
[12] Commencing April 24, 2018, PC Chin-Fook sought and was granted multiple production orders relating to telephone records, including:
a. Production Order, dated April 26, 2018, seeking subscriber information from Rogers Communications Canada, for cellphone 647-965-2907, associated to Mr. Shanmugeswaran.
b. Production Order, dated May 3, 2018, seeking subscriber information from Freedom Mobile Inc. for cellphone 647-447-8918, associated to the witness Ms. Sritharan.
c. Production Order dated May 23, 2018, for a general production order for records pertaining to the telephone number 647-889-8297, associated to Mr. Prathab Ashokkumar.
[13] In general terms, these production order results show a number of calls from Mr. Prathab Ashokkumar to Ms. Sritharan in the time leading up to the stabbing. Mr. Prathab Ashokkumar’s phone was using a tower approximately 1km from the stabbing just before 911 was called.
[14] The defence takes no issue with the ITO’s used to obtain any of these production orders.
[15] Mr. Prathab Ashokkumar was arrested on June 6, 2018 and charged with assault with a weapon. He was searched incident to arrest, and a black iPhone was seized by the police and kept at York Regional Police Headquarters.
The Impugned ITO
[16] On January 6, 2019[^1], PC Chin-Fook filed an ITO for a search warrant to search the iPhone associated to Mr. Prathab Ashokkumar, including:
a) Telephone call history including outgoing, incoming and missed calls;
b) Text and multimedia messages, sent and received;
c) Telephone directory including contact lists and addresses;
d) Photographs and video recordings.
[17] The January 6, 2019 ITO is 29 pages long. In her affidavit in support of the ITO, PC Chin-Fook acknowledges her understanding that “this is an ex parte application and that I am obligated to provide full, frank and fair disclosure of all material facts available to me”.
[18] At paras. 18 of her affidavit, PC Chin-Fook makes the following statement:
On May 1, 2018, SHANMUGESWARAN attended 8700 McCowan Road in the City of Markham and provided a video statement to the affiant advising that he was stabbed by a male, whom he believes to be named Pran (unknown last name). He was unable to provide any information regarding the other suspects involved but advised the male, Pran appeared to be taking a video of the alleged assault on his cell phone. (Emphasis added)
[19] This assertion is repeated at para. 45(g) of the affidavit:
On May 1, 2018, SHANMUGESWARAN… provided a video statement to the affiant. From the interview, I learnt the following
g) SHANMUGESWARAN also said that he recalled the suspect, Pran, taking a video of the assault with what he believed to be a cell phone.
[20] There is no dispute that “Pran” is the applicant’s first name.
[21] At para. 57 of her affidavit, PC Chin-Fook states:
As a result of the investigation and item seized, the search of the cellular Apple IPhone may provide further evidence to support the offence of assault with a weapon. As stated by the victim, SHANMUGESWARAN, to the affiant on May 1, 2018, it is believed that PRATHAB ASHOKKUMAR used his cellular phone to record the alleged assault on April 23, 2018.
[22] Police searched Mr. Prathab Ashokkumar’ s phone after securing the challenged warrant. On it, they located the following evidence:
i. Call logs confirming the phone calls to Ms. Sritharan.
ii. Text messages after the offence in which Mr. Prathab Ashokkumar discusses and allegedly admits to the stabbing of Mr. Shanmugeswaran, and discusses whether there are cameras in that plaza, how much he bled out, etc.
iii. A video showing Mr. Shanmugeswaran bleeding out shortly after the stabbing.
Error in the ITO
[23] As indicated, PC Chin-Fook stated three times in her ITO that during his video interview on May 1, 2018, Mr. Shanmugeswaran advised that he believed that “Pran” (Mr. Prathab Ashokkumar) took a video of the assault on his cell phone.
[24] This statement is not true. At no point during his video statement on May 1, 2018 did Mr. Shanmugeswaran make this statement.
[25] The Crown concedes that Mr. Shanmugeswaran did not say this in his video statement.
[26] The crux of the applicant’s argument is that the PC Chin-Fook included a “material falsehood” in the ITO. The alleged falsehood is a claim that Mr. Shanmugeswaran advised police that Pranavan (the accused) appeared to be filming during the attack.
[27] The Crown’s initial position was that this statement was simply an innocent misattribution – it was the witness, Ms. Sritharan, who gave PC Chin-Fook that information in her video statement of May 2, 2018:
Ms. Sritharan: They filmed him. They filmed him as I was reversing out, they filmed him. And like, all I remember is crying and seeing like a white flash of light and I’m driving off and I’m like ‘Jerson like are you ok’ and he’s like ‘take me home’, and I was driving and he goes Vysh, ‘they shanked me on my leg, like take me to the hospital’ and I’m like ‘Oh my god Jerson’…..
PC Chin-Fook: Who took the video do you know?
Ms. Sritharan: I think it was Prans. All I saw was a white light because I was crying and all I saw was reversing and them like yelling and spitting at him and like filming, like a white light, I don’t know whose phone it was. (Emphasis added)
[28] The Crown’s explanation – that this was an innocent misattribution – makes perfect sense.
[29] The difficulty with the Crown’s position is that it is not PC Chin-Fook’s explanation. In an email to the Crown dated May 5, 2021 (the week before this application was heard) P.C. Chin-Fook stated:
I am currently still reviewing the listed items. Last night I reviewed Mr. Shanmugeswaran’s video statement and unfortunately the information contained in paragraph 18 and 45(g) was not captured on video therefore I do not have a timestamp to provide. While I do recall Mr. Shanmugeswaran advising me of the fact stated in paragraph 18 and 45(g), unfortunately I made an error and failed to make a notation of such in my notebook.
[30] Given the discrepancy between the initial position of the Crown and the officer’s position in this email, I granted the applicant leave to cross-examine PC Chin-Fook limited to the source of the information contained in paras. 18 and 45(g) of the ITO: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] S.C.J. No. 115, [1990] 2 SCR 1421, at paras. 88-89.
[31] In the course of her cross-examination, PC Chin-Fook confirmed that she specifically recalled Mr. Shanmugeswaran telling her that he “believed a video had been taken”. While he did not say this during his video interview, PC Chin-Fook recalled that Mr. Shanmugeswaran told her this after the video interview at the police station when he was at the front desk to collect his property. He asked about his own cell phone, and then said that he “believed a video had been taken”.
[32] PC Chin-Fook acknowledged that this statement was not in her notes, and that she did not include it in the ITO when she first prepared it on July 30, 2018, or in any of its subsequent iterations. She acknowledged that the statement, “I believe a video had been taken”, is not the same as the information contained in paras. 18 and 45(g) of the ITO. She acknowledged that she had made an error in not making a note of Mr. Shanmugeswaran’s statement, but she specifically recalled him saying it.
[33] She did not review any of the May 2018 video statements before preparing the ITO on July 30, 2018 or January 6, 2019, and drafted the impugned paragraphs based on her notes and memory of those interviews. She acknowledged that this too was an error in judgment, and that she should have been more careful in quoting the words used by Mr. Shanmugeswaran.
[34] PC Chin-Fook also testified that because she did not review the video statements before drafting the ITO, she had no recollection that Ms. Sritharan had made the statement about Pran taking a video when she drafted the ITO in July 2018 and January 2019. She only recalled that Ms. Sritharan had made this statement when she reviewed the video statements in May 2021 after being asked by the Crown to review the witness video statements in preparation for this application.
Analysis
(i) Challenging the validity of a search warrant
[35] In R. v. Shivrattan, 2017 ONCA 23, the Ontario Court of Appeal summarized the law relating to challenges to the validity of a search warrant at paras. 23-27 (citations omitted):
At trial, the defence may challenge the constitutionality of a search conducted under the authority of a search warrant by demonstrating that the contents of the ITO relied on to obtain the warrant could not justify its issuance. If the challenge is successful, the search is treated as warrantless, rendering it unreasonable and contrary to s. 8 of the Charter. The defence must then demonstrate that the fruits of the search should be excluded under s. 24(2) of the Charter…
On a challenge to the validity of the warrant, the reviewing judge does not make a de novo assessment of the ITO’s contents. Rather, he or she decides whether those contents provide a basis upon which the issuing justice, acting judicially, could find reasonable and probable grounds to believe that an offence has been committed and that evidence of the offence would be found at the specified place…
Challenges to the validity of a warrant are described as facial or sub-facial. On a facial challenge, counsel argues that the ITO, on its face, does not provide a basis upon which the issuing justice, acting judicially, could issue the warrant. A sub-facial validity challenge involves placing material before the reviewing judge that was not before the issuing justice. On a sub-facial challenge, counsel argues that the material placed before the reviewing judge should result in the excision of parts of the ITO that are shown to be misleading or inaccurate. The warrant’s validity must then be determined by reference to what remains in the ITO. On a sub-facial challenge, counsel may also argue that the augmented record placed before the reviewing judge demonstrates that the affiant deliberately, or at least recklessly, misled the issuing judge, rendering the entire ITO unreliable as a basis upon which to issue a warrant…
The reviewing judge, when determining whether the warrant should have been granted, must consider the totality of the circumstances as set out in the ITO and as amplified by any additional material placed before him or her.
[36] In R. v. Booth, 2019 ONCA 970, the Ontario Court of Appeal summarized the process to be undertaken by the reviewing court where “erroneous, incomplete, or dishonest information” has been included in the drafting of the ITO, at paras. 54 and 57-60 (citations omitted):
Obviously, it is imperative that issuing judges or justices have an accurate understanding of the material, known facts available to the affiant officer. If the ITO contains erroneous, incomplete, or dishonest information relating to known information, an issuing judge or justice could be misled, and provide an authorization that should not have been provided. To ensure accuracy, anyone seeking an ex parte authorization, such as a search warrant, is required to make full and frank disclosure of material facts… This is because an ex parte warrant application is not adversarial. As a corollary of the privilege of being the only party permitted to present evidence in an ex parte application, a search warrant affiant bears the burden of presenting the facts accurately and fairly, from the perspectives of both sides.
Where full and frank disclosure has not been made, a reviewing court will correct the warrant ITO to achieve full and frank disclosure, and then determine based on that corrected ITO whether the warrant could properly have issued if full and frank disclosure had been made. “What is involved is an analysis [of the corrected ITO] to determine whether there remains sufficient reliable information upon which the search authority could be grounded”...
Sometimes erroneous information in an ITO will be corrected by simply removing it. Information that should not have been included in the warrant will always be “excised” in this way…
Erroneous information that would have been appropriate for inclusion in the ITO if presented accurately will sometimes be corrected by “amplification” so that it can be considered during the sufficiency review. Amplification entails adding information that should have been disclosed in order to give an accurate picture or replacing mistakenly inaccurate information with accurate information. When material information that would hinder a finding of reasonable and probable grounds has been improperly omitted, the ITO must be amplified to include it. However, amplification relating to information that could advance the warrant application is permissible only if the error in not making full and frank disclosure is: (1) a “minor, technical error”; and (2) made in “good faith”…
Whether the omission satisfies the first of these two amplification prerequisites – the “minor technical error” requirement – depends on the significance and nature of the error.
[37] Finally, the Court of Appeal has confirmed that “where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like”, the court has the “residual discretion” to set aside the search warrant even if it would otherwise be valid: R. v. Paryniuk, 2017 ONCA 87, at para. 69; Booth, at para. 65.
[38] I note that the issue of good faith also plays an important role in the Charter s. 24(2) analysis.
(ii) Excision and Amplification of the ITO
[39] The Crown concedes that paras. 18, 45(g) and the portion of para. 57 relating to Mr. Shanmugeswaran’s video interview (the impugned paragraphs) are inaccurate and must be excised from the ITO.
[40] The Crown also acknowledges that amplification is limited to the evidence that PC Chin-Fook had in her possession at the time she swore the affidavit in support of the ITO: R v. Lall, 2019 ONCA 317, at para. 39. While PC Chin-Fook had possession of Ms. Sritharan’s video statement when she swore the ITO, given her acknowledgment that she had not recalled this video statement when she prepared the ITO and her insistence that her statement was based on her recollection of what Mr. Shanmugeswaran told her, it is not open to the Court to treat this error as a misattribution and amplify the ITO on that basis. In other words, if the officer who swore the ITO does not acknowledge that the error was (or at least might have been) one of misattribution, the court cannot amplify the ITO on that basis.
[41] The Crown takes the position that the court can amplify the ITO by replacing the impugned paragraphs with PC Chin-Fook’s evidence that Mr. Shanmugeswaran told her that he “believed a video had been taken”.
[42] I do not accept that submission in this case, because, in my view, PC Chin-Fook’s evidence on this point is unreliable.
[43] While PC Chin-Fook testified that she has a specific recollection that Mr. Shanmugeswaran told her that he “believed a video had been taken”, her memory has proven to be unreliable in several respects.
[44] She first prepared the ITO on July 30, 2018, on the basis of her memory of her May 1, 2018 video interview with Mr. Shanmugeswaran. Her memory of that interview, which had taken place only 3 months earlier, proved to be incorrect.
[45] In addition, PC Chin-Fook acknowledged that she did not recall that Ms. Sritharan had made a substantially similar statement in her May 2, 2018 video interview when she swore the affidavit in support of the ITO on July 30, 2018. Again, her memory was unreliable.
[46] Moreover, the statement that she now attributes to Mr. Shanmugeswaran is not in any of her notes. That statement is different than the statement set out in the ITO. There is no reason to believe that PC Chin-Fook’s memory of that statement is more reliable today than it was when she swore the ITO almost 3 years ago.
[47] Given this conclusion on reliability, it would be wrong to permit the Crown to amplify the ITO by adding what PC Chin-Fook now recalls she was told by Mr. Shanmugeswaran nearly three years ago.
(iii) Analysis of Excised ITO
[48] When the impugned paragraphs are excised from the ITO, there remain ample grounds in the balance of the ITO to authorize the first three elements of the cell phone search:
a. Telephone call history including outgoing, incoming and missed calls;
b. Text and multimedia messages, sent and received; and
c. Telephone directory including contact lists and addresses.
[49] For example, the ITO indicates that there was information from Ms. Sritharan that she received a phone call from “Pran” directing her to attend the parking lot with Mr. Shanmugeswaran. Mr. Shanmugeswaran also told the police that he believed Ms. Sritharan knew Pran, and that Pran called Ms. Sritharan’s cellphone. Para. 46(m) of the ITO states:
SRITHARAN confirmed that she received communications from phone number 647-889-8297, which she knows to belong to one of the suspects, Pranavan. She advised that she was reluctant to tell police about her involvement due to fear.
[50] The real issue at this stage is whether there are any grounds to support the fourth element of the cellphone search - photographs and video recordings – once the impugned paragraphs are excised from the ITO.
[51] In R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, the Supreme Court held that to protect the unique privacy interests raised by computer searches, including searches of cellphones, the search of a computer requires specific pre‑authorization. The relevant principles from Vu were reiterated by the Court of Appeal in R. v. Nero, 2016 ONCA 160, at paras. 158-59:
A computer search requires specific pre-authorization. What this means is that if police intend to search computers or mobile communication devices found within a place with respect to which they seek a warrant, they must satisfy the authorizing justice, by information on oath, that they have reasonable grounds to believe that any computer or other mobile communication device they discover will contain the things for which they are looking: Vu, at paras. 3, 24.
It follows from this requirement of pre-authorization that the ITO must contain sufficient information to permit the authorizing justice to find that there are reasonable grounds to believe that any computers or communications devices they discover on execution of the search will contain what they seek: Vu, at paras. 3, 48.
[52] Once the impugned paragraphs are excised from the ITO, there is no longer a sufficient evidentiary basis to provide a “credibly-based probability” that a search of the photographs and video recordings on the cell phone would afford evidence of the commission of the alleged offence: R. v. West, 2020 ONCA 473, at para. 39; R. v. McNeill, 2020 ONCA 313, at para. 34.
[53] Thus, if the impugned paragraphs are excised from the ITO, only the first three elements of the search warrant would have been permitted. The warrant still would have issued, but authorization to search for photographs and video recordings would not have been included within the scope of the warrant. To the extent that the police searched the cellphone for photographs and video recordings, the search was not consistent with s. 8 of the Charter: Attorney General of Canada v. Levy, 2020 ONSC 5847, at paras. 51 – 54.
(iv) Was the Error in the ITO the Product of Bad Faith?
[54] The applicant contends that the error in the impugned paragraphs was a deliberate falsehood, or, at the very least, the product of a reckless disregard for the truth. He argues that the PC Chin-Fook failed to review the relevant video statements prior to swearing the affidavit, and the information included in the impugned paragraphs does not accurately reflect her current recollection of what Mr. Shanmugeswaran told her. If that is her actual recollection, he argues, the officer exaggerated Mr. Shanmugeswaran’s evidence in order to embellish the grounds for the ITO.
[55] The applicant argues that the officer knew her obligation in preparing the ITO was to provide a full and frank disclosure of the material facts, and her failure to accurately set out even her own recollection of Mr. Shanmugeswaran’s statement fell below that standard. Moreover, by attributing the embellished statement to Mr. Shanmugeswaran’s video interview, the officer attempted to give the statement more credibility than it warranted.
[56] The Crown argues that PC Chin-Fook’s error was the result of carelessness, not dishonesty. The officer was careless in not reviewing the video statements prior to preparing the ITO., but this carelessness does not rise to the level of bad faith. While, given the officer’s evidence on cross-examination, the Crown cannot rely on innocent misattribution to amplify the ITO, the Crown contends that the Court is still entitled to consider innocent misattribution as the most likely explanation for PC Chin-Fook’s error.
[57] Reviewing the totality of the evidence, I agree that innocent misattribution is the most likely explanation for the error in the impugned paragraphs of the ITO.
[58] First, there is no untruthfulness in the substance of the information in the impugned paragraphs in the ITO. If the information had been attributed to Ms. Sritharan’s May 2, 2018 video statement, it would be entirely accurate.
[59] Second, PC Chin-Fook gained no advantage by attributing the information in the impugned paragraphs to Mr. Shanmugeswaran’s May 1, 2018 video statement rather than Ms. Sritharan’s May 2, 2018 video statement. There was no reason for her to be dishonest in this regard. Attributing the information to Mr. Shanmugeswaran did not make it more credible for the purpose of the ITO.
[60] Nor is there any reason to believe that PC Chin-Fook was trying to diminish or otherwise sweep Ms. Sritharan’s evidence under the carpet. Paragraph 46 of the ITO contains an otherwise detailed and accurate summary of the evidence from Ms. Sritharan’s video statement and PC Chin-Fook did not hesitate to rely on this evidence for the purposes of the ITO.
[61] Finally, it would make no sense for PC Chin-Fook to deliberately lie about the content of a video statement, given the fact that the content of a video statement can be readily reviewed and verified by defence counsel.
[62] Sometimes the simplest explanation is also the correct explanation.
[63] While I found PC Chin-Fook’s evidence regarding her later recollection of Mr. Shanmugeswaran’s unrecorded statement to be unreliable, I do not doubt that she was trying to tell the truth when she gave her evidence in court. This is simply a situation where she has misremembered the source of the information provided in the ITO. She honestly believes that Mr. Shanmugeswaran was the source, but she is not correct. The crucial point is that PC Chin-Fook obtained the information from one of two witnesses, and her error in attribution cannot be described as bad faith.
[64] Mistakenly attributing observations to the wrong observer has been described by the Court of Appeal as a minor technical error: Booth at para. 61 citing R. v. Araujo, 2000 SCC 65, at para. 61 and R. v. Lewis , 2012 NBQB 312, at para. 24.
[65] The present case is also very similar to R. v. Lall, 2019 ONCA 317, where the Court of Appeal upheld the trial judge’s decision that inaccuracies in the ITO’s summary of a video statement confirmed that the ITO was “sloppy” and “inaccurate”, but were not evidence of bad faith.
[66] This is not, in my view, a case of “deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like”. Officer Chin-Fook was careless. She relied on her memory rather than reviewing the video interviews when she prepared the ITO. She accurately remembered the substance of the evidence, but misremembered the source of the evidence.
[67] I do not condone PC Chin-Fook’s carelessness in this regard. It has resulted in the invalidation of a portion of the search warrant and a violation of Charter s. 8. She did not, however, deliberately deceive or try to mislead the issuing justice.
(v) Charter s. 24(2)
[68] I have concluded that, after the excision of the impugned paragraphs from the ITO, the seizure of photographs and videos from the applicant’s iPhone could not be authorized by the search warrant, and therefore infringed the applicant’s rights under s. 8 of the Charter. There was no violation of Charter s. 8 with respect to any of the other information taken from applicant’s iPhone.
[69] The violation of the applicant’s Charter s. 8 rights triggers a Charter s. 24(2) analysis: should the photographs and videos be excluded as evidence at the trial.
[70] I must consider whether the admission of the photographs and videos would bring the administration of justice into disrepute. In making that assessment the court must take account of and balance the three factors stipulated by the Supreme Court in R. v. Grant, 2009 SCC 32:
• The seriousness of the Charter-infringing state conduct;
• The impact of the breach or breaches on the Charter-protected interests of the accused; and
• Society’s interest in the adjudication of the case on its merits.
[71] In R. v. McGuffie, 2016 ONCA 365, at paras. 62 – 63, the Court of Appeal summarized the post-Grant paradigm as follows:
The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [Citations omitted].
The seriousness of the Charter-infringing state conduct
[72] The Charter breach in this case was the product of police carelessness, not police dishonesty or bad faith.
[73] While carelessness may be serious if it has the effect of misleading the issuing justice (R. v. Dhillon, 2010 ONCA 582, at para. 51), the carelessness in this case related to the identity of the source of the information, not to the substance of the information in the impugned paragraphs in the ITO. Had the officer who swore the ITO been more careful in attributing the evidence to the correct witness, the warrant to search for photographs and videos would undoubtedly have been issued and the validity of that warrant would have been upheld. The police stood to gain no advantage from their error in this case.
[74] There is no evidence that this error was part of an institutional or systemic problem. This was a single error (albeit repeated 3 times) in a 29-page ITO that was otherwise accurate.
[75] In addition, the police searched the applicant’s iPhone only after obtaining a warrant that they believed to be valid at the time of the search.
[76] Given these factors, I would place the seriousness of the Charter infringing state conduct at the lower end of the spectrum.
The impact on the Applicant’s Charter-protected interest
[77] I consider the impact on the applicant’s privacy interest to be high.
[78] Courts have recognized that the heightened privacy interest in computers and cell phones increases the impact of an invalid search on the applicant’s Charter-protected interest: Cole, at paras. 47-49; R. v. Fearon, 2014 SCC 77, at para. 51: R. v. Reeves, 2018 SCC 56, at paras. 66 and 68; Vu, at para 37.
[79] Thus, the impact of the breach of the applicant’s Charter protected s. 8 right is significant, and this weighs in favour of exclusion of the evidence.
[80] I note that I have not found any other Charter violations that might increase the seriousness of the impact on the applicant’s Charter protected interests: see for example McGuffie at para. 76.
Society’s Interest
[81] Since this is a case in which “one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence”, the third inquiry is important.
[82] While the video evidence seized reliably places the applicant at the scene of the alleged offence, it is not critical to the Crown’s case, particularly given the admissibility of the other information gathered from the applicant’s iPhone.
Conclusion re: Charter s. 24(2)
[83] Taking these factors into account, it is my view that the photograph and video evidence seized from the applicant’s iPhone should be excluded under s. 24(2). I reach this conclusion primarily for the following reason.
[84] The police had two distinct opportunities to provide accurate information in the ITO. The first was when the ITO was first drafted on July 30, 2018. As a result of police carelessness, an error was made that has resulted in the excision of the impugned paragraphs in the ITO.
[85] The second opportunity was at this hearing, where the police could have corrected the “minor technical error” of innocent misattribution through the amplification of the ITO. For the reasons set out above, I have rejected the Crown’s argument that amplification is appropriate in this case.
[86] Having missed both opportunities to provide the court with accurate information, it would not be appropriate to, nonetheless, admit the evidence under s. 24(2).
[87] In R. v. Araujo, 2000 SCC 65, LeBel J. explained the purpose of amplification, at para. 59:
The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of everyone's privacy interests… amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. On the other hand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error in the drafting of their affidavit material.
[88] In my view, where, through carelessness, the police fail to provide accurate information when preparing the ITO, and then fail to meet the test for amplification to correct that careless technical error, it would turn the prior authorization procedure and the amplification procedure into a sham if the impugned evidence were nonetheless admitted under s. 24(2).
Residual Discretion
[89] The Court of Appeal has confirmed that a trial judge has a residual discretion to set aside a properly issued search warrant or authorization where the judge is satisfied that the conduct of the police has been subversive of the pre-authorization process leading to the issuance of the warrant. Such subversion occurs “where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like”: Paryniuk, at para. 69; Booth, at para. 65.
[90] As indicated at paras. 66 and 67 of these Reasons , I have found that the error in the impugned paragraphs of the ITO was the result of the mistaken attribution of observations to the wrong observer, and that the officer did not deliberately deceive or try to mislead the issuing justice. There was no bad faith.
[91] Accordingly, I am satisfied that the circumstances do not justify the exercise of the court’s residual discretion to make an order to set aside the balance of the properly issued search warrant.
Conclusion
[92] Based on these reasons, the application to exclude the photograph and video evidence seized from the applicant’s iPhone is allowed, the balance of the application is dismissed.
Justice R.E. Charney
Released: June 8, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
PRANAVAN PRATHAB ASHOKKUMAR
Defendant/Applicant
RULING ON CHARTER S. 8 APPLICATION
Justice R.E. Charney
Released: June 8, 2021
[^1]: PC Chin-Fook initially filed this ITO on July 30, 2018, but the iPhone was password protected and the Computer Forensic Examiner was unable to search the device prior to the expiry of the warrant on August 30, 2018. Once the passcode was located, a second warrant dated December 27, 2018 was obtained, but it expired on December 31, 2018, before the Technical Data Recovery Unit could execute the search. The relevant wording of these three ITOs is identical, and, for the purposes of this application, nothing turns on the dates of the ITO. This information is provided in order to complete the chronology.