Her Majesty the Queen v. Jonathan Williams, 2021 ONSC 5455

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(P)980/18

DATE: 2021 08 11

B E T W E E N:

HER MAJESTY THE QUEEN

R. Prihar, for the Crown

• and -

JONATHAN WILLIAMS

A. Romain and P. Kott, for Mr. Williams

Accused

HEARD: Tuesday, 27 July 2021

PRE-TRIAL RULING NO. 1 – HOTEL REGISTRATION

PUBLICATION BAN

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Trimble J.

The Application

1The accused brings this application for an order excluding hotel registration information the police obtained, as it was obtained in violation of his section 8 Charter right as it was not obtained with a judicial authorization.

The Charges

2The accused is charged with:

a) procured the complainant contrary to section 286.3(1);

b) receiving material benefit from sexual services contrary to section 286.2(1); and

c) advertising sexual services contrary to section 286.4.

Relevant Facts

3On 18 April 2016, the complainant reported to Peel Regional Police that she had engaged in sex trade work at the behest of the accused between January and April 2016, in exchange for which he received significant sums of money.

4The complainant was interviewed and gave a KGB sworn statement in which she advised that she and the accused had gone to a hotel in Kitchener in order for her to engage in sex trade work. Each had their own rooms in the same hotel. She also stated that she and the accused went to Niagara Falls so that she could perform sex work. She stayed at one hotel in Niagara Falls and he at another because he did not want to be seen with her. She didn’t know the name of his hotel.

5Det. Const. Mandonca telephoned the motel in Kitchener that the complainant identified. He spoke to an employee by the name of “Dave”. After identifying himself as a Peel regional police officer carrying on an investigation, he requested the registration for both the complainant and the accused. The records were faxed to the officer on 10 May 2016 and included the room registration cards for each of them, which contained their names, addresses, and telephone numbers. The registration cards also called for a car license number, province or state of registration, make, colour, and year. The accused’s registration contained no automobile related information. In addition, there is a photocopy of the accused’s driver’s license.

6On 26 April 2016, Det. Curtis began searching for hotels in Niagara Falls within a small radius of the complainant’s hotel on the theory that he would want to remain close to the complainant. She entered a hotel in Niagara Falls and spoke to the manager, Sarah. Det. Curtis identified herself as a Peel Police Detective and said that she was conducting an investigation. She asked for any registration in the name of the accused between 13 and 15 February 2016. Det. Curtis never left the hotel lobby.

7Sarah printed from the computer a copy of the room registration for the accused. It showed the accused, his address, the dates of his arrival and departure, the number of guests, the room type he wanted, and the rate. It also showed the last four numbers of his Visa card, by which he paid for the room. There was a scanned receipt for cash payment and a copy of a chit which showed that he drove a car, its make and colour, and its plate number.

Positions of the Parties

1. The Accused

8The accused says that he had a reasonable expectation of privacy in the hotel records. Police searching for and seizing those records was without judicial authority and therefore, on its face was unreasonable. The Crown has not justified the search. It is in violation of section 8, and the only remedy is exclusion of the evidence.

2. The Crown

9The crown submits that the hotel records are not records of the type that would give rise to a reasonable expectation of privacy on the part of the accused. Therefore, there was no need to obtain judicial authorization to obtain them.

Issues

10The only issue on this application is whether the accused had a reasonable expectation of privacy with respect to the hotel registration documents.

The Law

11Section 8 of the Charter protects individuals from unjust intrusion upon their privacy (Hunter v. Southam (1984), 14 CCC( 3d) 97 (SCC)). Generally, the public’s interest in being left alone by the government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals such as law enforcement (see: R. v. Reeves, [2018] SCC 56, at para. 11). Therefore, s. 8 must be interpreted purposefully, emphasizing the right to individual security, self-fulfillment and autonomy, as well as the maintenance of a thriving democratic society (Spencer, supra, at para. 15).

12Section 8 of the Charter protects people, not places (see: Hunter, supra, page 159).

13The first question in any section 8 analysis is whether section 8’s protection against unreasonable searches and seizures is engaged. The onus is on the accused to establish whether, in all the circumstances, the accused had a reasonable expectation of privacy in the information provided to the police by the hotels. If he can establish this, then the police obtaining that information without judicial authorization constitutes an unreasonable search and seizure under section 8 (see: R. v. Marakah, [2017] S.C.R. 608, at para. 25; Spencer, supra, para. 16).

14Determining whether an accused has a reasonable expectation of privacy involves weighing a large number of interrelated factors including those related to the nature of the privacy interests implicated, and factors concerning the right of privacy both subjectively and objectively viewed. These interests must be looked at and adapted to the circumstances of the particular case and viewed as a whole (see: Spencer, supra, para. 17).

15The factors fall under four main groupings or headings:

1. the subject matter of the alleged search;

2. the accused’s interest in the subject matter;

3. the accused’s subjective expectation of privacy in the subject matter; and

4. whether the subjective expectation of privacy was objectively reasonable in all the circumstances

(see: Spencer, supra, para. 18).

Subject Matter of the Alleged Search

16When identifying the subject matter of an alleged search, the court must not do so narrowly by looking only at the physical act or the physical space. Rather, it must look at the nature of the privacy interests potentially compromised by the state action (see: R. v. Ward, para. 65; Spencer, supra, para. 31).

Nature of the Privacy Interest Potentially Compromised by the Search

17“Informational privacy” means that the individual has the right to control the use of his or her own intimate information.

18In focusing on the privacy interest, the court must look at whether people, generally, have a privacy interest in the hotel reservation information, and not whether the accused has a privacy interest in concealing his use of hotels for illegal purposes (see: Spencer, supra, para. 36). Where personal information is disclosed in a public place, the question still must be whether the reasonable expectation was whether the information should remain confidential to the person to whom it was disclosed and for the purposes for which it was disclosed (see: Spencer, supra, para. 40).

19In Spencer, the court held that a privacy interest is engaged where, for example:

• A sniffer dog provides information about the contents of the bag and therefore engages privacy interest relating to the contents of the bag;

• DRA readings provide information about what is going on inside a home and therefore engages the privacy interest relating to those activities, and

• Internet subscriber information, by tending to link particular kinds of information identifiable individuals, may implicate privacy interest relating not simply to the person’s name or address, but also to his or her identity as the source, possessor, our use of that information. (para. 47).

Reasonable Expectation of Privacy

20Was the expectation of privacy by the accused, reasonable?

21In many of the cases, the reasonableness of a person’s expectation of privacy depended on whether there was a contractual or statutory regime which included a waiver of privacy with respect to, or gave permission to the record holder to disclose information in certain circumstances.

Was the Search Lawful

22A warrantless search is presumed unreasonable (see: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265). Once the accused establishes a privacy interest in the information that deserve protection, the crown bears the burden of rebutting the presumption of an unreasonable search. Search will be reasonable if it is authorized by law, the law itself was reasonable, and the search was carried out in a reasonable manner.

Analysis

23The main question on this application is whether Mr. Williams had a reasonable expectation of privacy in the hotel registration information.

24The only Ontario case that has considered whether an accused has a reasonable expectation of privacy over information he gave to a private commercial entity is R. v. Duong, [2006] O.J. No. 3524, an oral ruling given by McMahon J.

25In that case, the accused wish to exclude from evidence motel records from two motels where it is alleged he stored Chinese nationals before they were transported across to the United States illegally. Those records provided the accused’s home address, his name, his vehicle and license plate, and the number of units rented, for how long they were rented, and their cost.

26McMahon J. held that when a person rents a hotel room, there is a high expectation of privacy because the information he is providing is “biographical”, tied to a particular hotel room for a particular period of time, for a particular amount of money. Based on the analysis in R. v. Plant (1993), 1993 CanLII 70 (SCC), 84 CCC (3d) 203 (SCC), he held there was a reasonable expectation of privacy, and since the search was without warrant, he excluded the evidence under section 24(2).

27The only case that appears to have followed Duong, is R. v. Poloni, 2006 BCPC 611 (per the Court in R. v. Tan, 2010 BCSC 1948, [2010] BCJ No. 2803). Poloni was not put before me nor was I able to find it on .

28All other courts that have considered Duong have declined to follow it.

29In Tan, at para. 21, the British Columbia Supreme Court commented that McMahon’s judgement in Duong, was an oral judgement, which appears to have been made nisi prius. The court declined to follow the nonbinding authority, preferring the analysis of the Nova Scotia Court of Appeal in R. v. Chehil, 2009 NSCA 111.

30In R. v. Tefler, 2019 MBQB 12, [2019] MJ No. 44, the court considered an application to exclude a warrant that included reference to hotel registration and car rental information that was obtained without judicial authorization. The court declined to follow Duong, finding the oral reasons “relatively offhand and lean” (see: paras. 53 and 54).

31The most thorough analysis of whether providing information such as name, address, phone number, and other similar information to a private company exchange for services provides a reasonable expectation of privacy is Re Chehil, 209 NSCA 111. I prefer and adopt the Nova Scotia Court of Appeal’s analysis.

32In that case, an RCMP officer at the Halifax Airport detachment asked WestJet if he could review passenger manifests of a specific flight. The officer identified himself to WestJet as an RCMP officer and part of the drug enforcement team.

33WestJet staff allowed the officer to review the manifest. The officer was looking for passengers travelling alone, who had purchased a one-way ticket, with cash, shortly before the departure, and checked a single bag. This was a profile consistent with the travel pattern of drug couriers. Because the manifest listed passengers in the order in which they purchased their tickets, the officers were only interested in viewing the ticketing information of the last few names on the list. They identified 10 passengers as suspicious (including Mr. Chehil) and had their bags set aside so the RCMP’s sniffer dog could identify bags containing controlled substances. The dog identified Mr. Chehil’s bag. He was arrested.

34Mr. Chehil asked the trial judge to find that the RCMP’s obtaining and viewing WestJet’s electronic passenger records which revealed his ticketing information, was an unreasonable search contrary to section 8 of the Charter. The judge agreed and exclude the evidence. The crown appealed.

35Writing for the court, Bateman J.A., following R. v. Tessling, 2004 SCC 67, held that not every form of government inspection is a “search” for constitutional purposes. Such a search occurs only where the state action intrudes upon an individual’s reasonable privacy interest. Such interest will usually arise with respect to “biographical core information” that reveal intimate details about the lifestyle of the accused.

36Quoting from Binnie J. in R. v. A.M., 2008 SCC 19 at paras. 67 and 68 (in a case concerning a police search of a high school student’s backpack,) the sort of information that is protected is specific and meaningful information, intended to be private, and concealed in an enclosed space in which the accused had a continuing expectation of privacy. Not all information falls into the “biographical core of personal information” test. Even where no such core biographical information is contained in the thing searched, some communications, such as electric or electronic signals that emanate from a home, whether they contain biographical information or not, are protected because they are intended to be, by their maker, to be private.

37Bateman JA, in looking at the totality of the circumstances, commented as follows:

a) Subject matter of the search – The subject matter of the search was the ticketing information maintained by Westjet, which included the flight number, the pastor’s name, the fact that it was a walk-up cash purchase of a one-way ticket, and that there was a single checked bag.

b) Interest in the subject matter – There was no doubt that Mr. Chehil had an interest in the subject matter of the information.

c) Subjective expectation of privacy – the accused provided no evidence with respect to his subjective intention, nor was there any evidence about the nature of the contractual relationship between the accused and the airline as might affect its his expectation of privacy. Mr. Chehil undertook his transaction with Westjet in full public view by carrying a single piece of blood luggage, purchasing a cash ticket at the check-in counter, shortly before boarding the flight. These are not the circumstances in which a court will infer a subjective expectation of privacy in the absence of testimony from the accused (see: para. 35 citing R. v. Law, 2002 SCC 10 (documents locked in a safe); R. v. A.M., supra (drugs secreted in a backpack); R. v. Major, 2004 CanLII 12791 (ON CA), [2004] O.J. No. 2651 (Q.L.)(C.A.) (drugs in a locked ‘family visits’ trailer on penitentiary grounds); R. v. Patrick, supra, (bags of garbage located on the accused’s property); R. v. Tessling, supra, (the quantity of heat generated inside a private residence).

d) Objectively reasonable expectation of privacy

a. where the search occurred- this greatly influences the reasonableness of an individual’s objective expectation of privacy. Here the search occurred at private corporate offices of the airline, with the permission of the airline, faced with a clearly identified police officer asking to view the records. There was no intrusion into the accused home, private property, or personal property.

b. Was the information in public view? – The information was given to the airline by Mr. Chehil when they transacted their business in a public area. Therefore, he can have no reasonable expectation of privacy.

c. Was the information in the hands of a Third Party? – Yes. Westjet.

d. Was the police technique intrusive in relation to the privacy interest? - The police did not use intrusive or surreptitious means. They asked for records, and then viewed them with the permission of the recordholder.

e. Was the use of the evidence gathering technique itself objectively unreasonable? -No. The police have the obligation to investigate and prevent crime. The police did not have unlimited access to the recordholder’s databases or files. The request was specific.

f. Did the content of the information expose intimate details of the accused’s lifestyle or information of a biographic nature? - The information targeted and obtained by the RCMP amounted to nothing more than Westjet’s record of the accused’s public activities in transacting business with the airline.

38Except for the nature of the record (airline booking list instead of hotel registration), Chehil and Mr. Williams’ situation are parallel.

39Mr. Williams argues that the information contained in the hotel records, while not intimate per se, lead to information that is very intimate – the purpose of renting the room.

40The NSCA rejected this type of argument in para. 51 of Chehil. Bateman JA, said that in the broadest sense, the information contained in the record might reveal something about lifestyle, in Mr. Williams’ case that he rented a hotel room in each motel on the given nights. Like Bateman JA, I too reject the submission that commercial transaction records like hotel registration cards reveal intimate details of Mr. Williams’ lifestyle or personal choices or contained meaningful information intended to be private.

Section 24 Analysis

41I have not found a Charter breach in this case. Had I, however, I would not have excluded the evidence.

42The Supreme Court of Canada instructs us that if there is Charter breach, in determining whether it is admissible, the court must consider the effect of admitting the evidence on society’s confidence in the justice system, having regard to:

a) the seriousness of the charter-infringing state conduct;

b) the impact of the breach on the charter-protected interests of the accused;

c) society’s interest in adjudication of the case on its merits.

43Any breach of section 8 by the seizure of the hotel records is at the low end of section 8 breaches. The police acted in good faith and used no surreptitious techniques. The records were obtained from hotel employees (in one case a manager) by a simple request, after the officer identified himself or herself as a Peel Regional Police Officer conducting an investigation.

44Obtaining the hotel registration cards and related material did not constitute a serious intrusion on Mr. Williams’ Charter protected interests. The information is what is often referred to as “tombstone” information. It is all available through searches with the Ministry of Transportation, and other publicly available databases.

45The court also has to consider the impact on the administrative justice of admitting or not admitting the evidence. The evidence here is physical evidence, which generally weighs in favour of its inclusion. They are business records. They tend to bolster the credibility of the complainant.

Trimble J.