COURT FILE NO.: CR-20-00000053-0000

DATE: 20210810

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JORDAN EARLE and KYLE ARSENAULT

Defendants

Counsel:

Lee Burgess and Michael Lunski, for the Crown

William Caven, for Jordan Earle

Keara Lundrigan, for Kyle Arsenault

HEARD at Belleville by video conference: June 7, 22, 23 and 24, 2021

PURSUANT TO S. 648(1) OF THE CRIMINAL CODE, NO INFORMATION REGARDING THESE REASONS OR THE PROCEEDINGS IN COURT IN RELATION TO THIS APPLICATION SHALL BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY BEFORE THE JURY RETIRES TO CONSIDER ITS VERDICT AT THE TRIAL OF THIS MATTER

MEW J.

REASONS FOR DECISION

[1] Jordan Earle and Kyle Arsenault are jointly charged on eight counts involving three different incidents which are alleged to have taken place on 16 and 17 October 2019. In addition, Mr. Earle faces two further counts relating to the theft of a vehicle and dangerous driving, and Mr. Arsenault faces three counts on his own relating to his possession of a prohibited firearm and the alleged assault of a police officer subsequent to his arrest.

[2] The trial of these charges by judge and jury is scheduled to commence on 15 November 2021.

[3] These reasons address two sets of pre-trial applications brought by the Crown and Mr. Earle respectively.

[4] The Crown seeks to establish the voluntariness of a video-recorded statement given by Mr. Earle to Detective Sergeant Ian Jarvis of the Belleville Police Service, on 23 October 2019. Mr. Earle opposes the application. Mr. Earle further argues that his statement was obtained in violation of his rights under s. 10 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.

[5] Mr. Earle also challenges the admissibility of the following evidence:

a. The use of a statement given by Kyle Arsenault to D.S. Jarvis on 19 October 2019 as evidence for the Crown as against Mr. Earle;

b. The admissibility of video clips seized on a cell phone belonging to Mr. Arsenault;

c. The use of certain evidence collected against Mr. Earle during the course of the police investigation.

[6] The voluntariness of a statement given by Kyle Arsenault to D.S. Jarvis is not contested by Mr. Arsenault.

Background

[7] I am grateful to counsel for the Crown and for Mr. Earle for comprehensively summarising the background information. I have unapologetically drawn on it, at times verbatim, in the course of setting out the background to this case.

[8] Four of the offences that Mr. Earle and Mr. Arsenault are jointly charged with relate to a break and enter and arson of a residence on Dundas Street East, Belleville, on 16 October 2019. Two of the offences relate to the robbery and attempted murder of Jason Sungk-Ro at Ro’s Convenience Store in Belleville on 16 October 2019. The other two jointly charged offences relate to a break and enter at a residence on Briarwood Crescent, Belleville on 17 October 2019.

[9] In addition, Mr. Earle is charged with two offences related to the theft and dangerous driving of Skyler Long’s vehicle on 17 October 2019.

The Dundas Street Break & Enter/Arson

[10] On 16 October 2021, an off-duty Belleville firefighter observed black smoke coming from what turned out to be the detached garage of a cottage. Police attended. The cottage had obviously been broken-into and the owner subsequently confirmed that items of property had been stolen. Gasoline had been poured onto the floor of the cottage. The garage was destroyed by the fire. However, the cottage itself did not catch fire.

The Ro Attempted Murder

[11] Shortly after 6:30pm on October 16, 2019, a black vehicle pulled up to Ro’s Convenience Store, located at 184 Cannifton Road North in Belleville. The male passenger got out of the vehicle and entered the store wearing a red face covering (bandana), camo hoodie, red pants with white and black stripes, and grey shoes. He was carrying an unfilled bluish-grey backpack. Once in the store he sprayed Jason Sungk-Ro with a can of bear spray then ran from the store, followed by Mr. Ro, who was carrying a golf club. Video surveillance from inside the store showed portions of the events that occurred inside the store.

[12] Outside the store, a confrontation took place between Mr. Ro and the male. Mr. Ro at one point struck the male intruder in the area of his ear with the golf club. The male driver of the vehicle got out and joined in. The males got hold of the golf club and struck Mr. Ro with it about the body and head. Mr. Ro fell to the ground at some point. One of the men had a knife and stabbed Mr. Ro multiple times with it.

[13] Passers by arrived and the males fled in the black vehicle.

[14] Mr. Ro sustained four stab wounds to the right side of his chest, which perforated his lung and kidney, and sustained a significant cut at his left eye from the golf club, the impact of which left him with permanent loss of vision in his left eye.

The Briarwood Break & Enter

[15] On 17 October 2019, one of the homeowners of the Briarwood Crescent residence returned to the house at 13:30 to find that the home had been broken into. The residence had been left in a state of disarray with items scattered everywhere. A PS4 unit had obviously been moved and damaged. Numerous personal items were stolen.

Theft of Car/Dangerous Driving

[16] On 17 October 2019 at approximately 22:00, it is alleged that Mr. Earle went to the Quinte Curling Club on Bridge Street West in Belleville. He entered the men's change room and was later escorted out by Alan Norton, a member of the curling league. Skyler Long, another league member, had his car keys in his jacket, which he had put in the change room at about 21:30. While in the change room, Mr. Earle is alleged to have taken Mr. Long’s keys and driven away in Mr. Long's car.

[17] At 22:20, Belleville Police were called to a report of a motor vehicle that had collided with a residence on Harriett Street, which is approximately a 5-minute drive from the Curling Club. A blue Honda GXC, subsequently identified as Mr. Long’s, had hit the cement front porch and was lodged into the wooden garage. There were no occupants in the vehicle. Witnesses on scene indicated that a male had exited the vehicle and taken off on foot.

Arrests and Interactions with Police Preceding the Statement

[18] The defendants first became suspects in the Ro attempted murder. It was for this offence that warrants were issued for their arrests on 19 October 2019. Both suspects were arrested that same day. The police had learned that Mr. Earle had boarded a train at Belleville railway station, having bought a train ticket to Moncton, New Brunswick.

[19] Jordan Earle was the first to be arrested. The arrest was made by Constable Yves Richard of the R.C.M.P. at the railway station in Moncton, just before 14:00 local time.

[20] Mr. Earle was searched incident to arrest and given rights to counsel and cautioned by Constable Maxime Lavoie. When he was arrested, Mr. Earle was wearing a pair of shoes that was similar to that worn by one of the perpetrators of the Ro attempted murder. The shoes appeared to have blood on them. Police also located distinctive red pants similar to those worn by the same perpetrator of the Ro attempted murder, and personal cheques and a Quinte Secondary School ring that were subsequently identified as having been stolen during the Briarwood break and enter.

[21] Mr. Earle was told that he would be held in New Brunswick until he could be flown back to Ontario and delivered to the Belleville Police. At no time while in custody in New Brunswick was Earle informed that he was a suspect in relation to any investigations other than the Ro attempted murder. Nor was he questioned by the R.C.M.P officers.

[22] A Feeney arrest warrant was executed at Mr. Arsenault’s residence on Albion Street, Belleville, at approximately 18:00 on 19 October. A red iPhone was found in Mr. Arsenault’s possession at the time of his arrest. It was then left at Albion Road pending the issuance of a search warrant.

[23] Mr. Arsenault was interviewed by D.S. Jarvis on 19 October 2019. He initially denied being directly involved in the Ro attempted murder. He told D.S. Jarvis he was aware of the attempted murder because Mr. Earle had come to his residence at Albion Road afterwards and confessed to committing the robbery and stabbing Jason Sungk-Ro. He told D.S. Jarvis that his only involvement had been arranging for Mr. Earle to leave Belleville and go to New Brunswick on the train.

[24] A search warrant was executed at the Albion Road address on 21 October. Police located a number of items incriminating the defendants. These items included:

a. Mr. Arsenault’s red iPhone, which contained:

i. a video incriminating Messrs. Arsenault and Earle in the Dundas Street arson;

ii. electronic conversations in which Mr. Arsenault admitted his and Mr. Earle’s involvement in the Ro attempted murder;

iii. a video of injuries to Mr. Earle’s head consistent with injuries sustained by the perpetrators of the Ro attempted murder; and

iv. a video incriminating Messrs. Earle and Arsenault in the Briarwood break & enter;

b. A golf club used during the Ro attempted murder, upon which DNA from Messrs. Arsenault, Ro, and Earle was found; and

c. Items stolen during the Briarwood break & enter.

[25] On 22 October 2019, Detective Constables Corey McGee and Matt LaFrance of the Belleville Police flew to Moncton. Before doing so, D.C. McGee had monitored the interview of Mr. Arsenault and was therefore aware that Mr. Arsenault had made some utterances which implicated Mr. Earle in the Ro attempted murder. D.C. McGee was not otherwise aware of Mr. Earle being a person of interest in other ongoing investigations. The Belleville officers had an arrest warrant which they had endorsed by a New Brunswick judge, and a search warrant for the items seized by the R.C.M.P. incident to Mr. Earle’s arrest. Pursuant to that warrant, they seized the items taken at the time of Mr. Earle’s arrest, including various knives, sunglasses, t-shirt, shoes, pants, and a 2008 Quinte Secondary School class ring. D.C. McGee called D.S. Jarvis who said that they should seize all of the items taken from Mr. Earle.

[26] On 23 October 2019, Mr. Earle was taken to the Moncton airport by R.C.M.P. officers and turned over to officers McGee and LaFrance. They arrested Mr. Earle for attempted murder and robbery, read him his rights to counsel and cautioned him. The officers then flew with Mr. Earle to Ottawa and then drove him from there to the Belleville Police Station.

[27] Following arrival at Belleville Police, Jordan Earle was booked and brought up to the interview room where he was interviewed by D.S. Jarvis between 18:12 and 20:25.

[28] At the outset of the interview, Mr. Earle asked “how many incidents” he was facing. D.S. Jarvis responded, “just the one,” referring to the Ro attempted murder. D.S. Jarvis confirmed Mr. Earle’s rights to counsel and caution, and Mr. Earle declined to speak with counsel (having also declined when cautioned previously). D.S. Jarvis asked Mr. Earle to confirm that he understood what he was under arrest for, and Mr. Earle replied the charges were attempted murder and robbery.

[29] Early in the interview, Mr. Earle became emotional. D.S. Jarvis decided to use his own mobile phone to call duty counsel on Mr. Earle’s behalf, and did so with Mr. Earle in the interview room. When he made the call to duty counsel, D.S Jarvis again stated that the charges against Mr. Earle related to the attempted murder and robbery. Mr. Earle then spoke to duty counsel for thirteen minutes, with the audio recording turned off in the interview room and D.S. Jarvis absent.

[30] D.S. Jarvis then returned to the interview room and completed taking Mr. Earle’s statement. Several times during the course of the interview, D.S. Jarvis and Mr. Earle confirmed the understanding that Mr. Earle was in police custody for the Ro attempted murder.

[31] After reference was made to the golf club used in the Ro attempted murder, the following exchange occurred:

D/Sgt. Jarvis: And we found some more shoes and we found the stuff that you guys had broken into in, on a residence in Belleville, some rings, some I, I, iPhone and some headphones and some jewellery,

Jordan Earle: I don’t know man.

D/Sgt. Jarvis: Do you remember stealing a car?

Jordan Earle: No.

D/Sgt. Jarvis: And driving it into a house?

Jordan Earle: No.

D/Sgt. Jarvis: Not at the same time as this,

Jordan Earle: No, I don’t remember any of that. This is whacked.

[32] D.S. Jarvis explained that he referred to the break and enter and the taking of the car to try and get Mr. Earle to engage in discussion. He felt he was not getting anywhere with the interview. While he was aware of the car theft, it was not his investigation and he did not have enough information about it to make an arrest.

[33] No mention was made at any point that Earle was also a suspect in the Briarwood break and enter and the Long car theft.

[34] Detective Constable Cory Mooney was the investigator of the Briarwood break and enter charge. On 26 November 2019, he obtained an arrest warrant for Jordan Earle for that event. Mr. Earle was already in custody on the attempt murder charge and the warrant for the B&E was executed on 15 January 2020.

[35] The car theft and dangerous driving charges were investigated by Detective Constable Zach DeSousa. While Jordan Earle was a suspect in those offences as of 17 October 2019, the police say that there were no reasonable and probable grounds to charge him until after 16 November 2019 when D.C. DeSousa received security video of the curling club where the car had been stolen. In January 2020, D.C. DeSousa obtained an arrest warrant for Mr. Earle’s arrest on those offences and it was also executed on 15 January 2020.

[36] Jordan Earle and Kyle Arsenault were not suspects in the Dundas Street arson until after the search of Kyle Arsenault’s cell phone and the video was obtained. Both accused were arrested on 8 April 2020 in relation to those offences.

Voluntariness and Charter Issues: Earle Statement

[37] Mr. Earle submits that his 23 October 2019 statement was given involuntarily. He complains that he was never informed of his criminal jeopardy in relation to the Briarwood break and enter or the Long car theft before being interviewed, despite D.C. Jarvis’ knowledge that he was a suspect in relation to both of those matters. As such, he argues that the cautions that he was given and the consultation he had with counsel were insufficient to protect him against the possibility of self-incrimination.

[38] The Crown’s position is that Mr. Earle was only arrested and detained for the attempt murder and robbery at the time he was interviewed by D.S. Jarvis. While he was a suspect in other investigations, he was neither arrested nor detained for those investigations. There is no obligation on the police to advise a detainee that they are suspects in other investigations for which they have been neither arrested nor detained. Mr. Earle was not asked any questions regarding the break and enter offence. While D.S. Jarvis asked two questions related to the car theft in the course of an interview for attempt murder, the additional jeopardy faced by Mr. Earle as a result was minimal.

[39] Both parties refer to the leading case of R. v. Oickle, [2000] S.C.R. 3, in which the Supreme Court set out relevant factors for determining the voluntariness of a statement, such as:

• whether there were any threats or promises used by the police;
• the oppression test; whether the police created conditions distasteful enough for the accused to make a stress-compliant confession;
• whether the accused has a degree of awareness of what he is saying and that he is saying it to police officers who can use it to his detriment;
• whether the police engaged in some form of trick to elicit a confession in a manner which might shock the community.

[40] The Crown says that none of these conditions were present at the time that Mr. Earle gave his statement and that throughout the interview D.S. Jarvis was polite, respectful and that he used no coercive measures to induce a confession.

[41] The defence counters, asserting that Mr. Earle had the right, pursuant to section 10(a) of the Charter, to be promptly informed of all of the reasons for his arrest and detention. Because Mr. Earle was not informed prior to his interview with D.S. Jarvis that he was a suspect in the break and enter and the Long car theft matters, he was not properly informed of all the reasons for his detention, and, hence did not fully appreciate his jeopardy. This in turn impaired his ability to meaningfully exercise his right to counsel pursuant to section 10(b) of the Charter and, thus, to make an informed choice about whether to exercise his right to silence. As a result, Mr. Earle was not in a position to give a voluntary statement when he was interviewed on 23 October 2019. His statement was therefore involuntary.

[42] In R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at para 48, McLachlin J. stated:

I should not be taken as suggesting that the police, in the course of an exploratory investigation, must reiterate the right to counsel every time that the investigation touches on a different offence. I do, however, affirm that … the police must restate the accused's right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning.

[43] In the present case, in the course of his interview with Mr. Earle in relation to the attempt murder for which he had been arrested, D.S. Jarvis asked two questions in relation to the stolen car. Both questions could fairly be described as exploratory in nature and resulted in denials. The officer then returned to questions regarding the attempt murder investigation.

[44] I agree with the Crown that there was no violation of Mr. Earle’s Charter rights and, in the absence of any other Oickle concerns, that his statement was voluntary. At the very worst, D.S. Jarvis momentarily strayed off track, but with no resulting harm to Mr. Earle. Accordingly, even if I am wrong about there having been no Charter violation, I would not rule the evidence inadmissible, having regard to section 24(2) of the Charter and the application of the Grant factors (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353): any violation that may have occurred was peripheral and minor in nature and the public interest would be appropriately served by having an adjudication of the case on its merits.

[45] I would add that, as a practical matter, there were separate but concurrent investigations being conducted by different officers into the incident described. I accept the evidence that at the time of Mr. Earle’s interview, the pieces of the puzzle had not been assembled to the extent that D.S. Jarvis would have had reasonable and probable grounds to charge him in relation to those investigations.

Use of the Arsenault Statement

[46] The Crown does not seek to offer the statement given by Mr. Arsenault to D.S. Jarvis on 19 October as evidence against Mr. Earle. Nevertheless, the Crown does reserve the right to rely of Mr. Earle’s reaction, during the course of his own interview, to portions of Mr. Arsenault’s statement that were played to him.

[47] Mr. Earle argues that even though the Arsenault statement is not going to be tendered as evidence against him, the jury will have heard it. Mr. Arsenault was dishonest throughout his interview with D.S. Jarvis. He repeatedly lied and sought to deflect his own responsibility in the Ro attempted murder by denying any direct involvement and pinning the entirety of the blame on Mr. Earle. This is despite the fact that he and Mr. Earle were close friends and considered each other “brothers.” D.S. Jarvis eventually elected to terminate the interview even though it seemed that Mr. Arsenault wanted to change his story at the last minute and give the police a new version of events. D.S. Jarvis did so because he knew that Mr. Arsenault had lied to him and would only try to manipulate him further.

[48] Under such circumstances, Mr. Earle says that the jury, no matter how well-instructed, will be able to disabuse itself of what it has heard.

[49] I disagree. The jury will be instructed that Mr. Arsenault’s statement can only be considered as evidence in relation to Mr. Arsenault and not as evidence in relation to Mr. Earle, and that even if Mr. Arsenault’s statement refers to something that Mr. Earle did or said, the jury must not consider that statement as evidence in relation to Mr. Earle. Similar instructions are given to juries all the time. Furthermore, if Mr. Arsenault’s dishonesty is as patent as Mr. Earle suggests, Mr. Earle’s reaction to the portions of Mr. Arsenault’s interview that were played to him can be weighed and assessed accordingly.

The Video Clip Evidence

[50] Mr. Earle challenges the admissibility as part of the case against him of the three incriminating videos found on a red iPhone belonging to Kyle Arsenault which was seized pursuant to a validly obtained warrant. Specifically, these videos depict:

a. Mr. Earle, filmed by Mr. Arsenault, admitting involvement in the Dundas Street arson;

b. injuries allegedly sustained by Mr. Earle during the commission of the Ro attempted murder; and

c. Messrs. Earle and Arsenault displaying items allegedly stolen during the Briarwood break and enter.

[51] Mr. Arsenault and Mr. Earle are captured on all three videos but in two of the three Mr. Arsenault’s girlfriend, Clarissa Snyder, is also present and is captured by either the video and/or the audio.

[52] Although these three videos were found on the red iPhone belonging to Mr. Arsenault, Mr. Earle submits that he has standing to challenge the admissibility of these videos.

Standing

[53] On the issue of standing, Mr. Earle relies on R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, where it was held that on the question of whether an accused can claim the protection of section 8 of the Charter (the right to be protected against unreasonable search or seizure) over text messages found on another person’s phone, the totality of the circumstances must be considered. Four lines of inquiry govern that analysis (Marakah, at paras. 11-12):

a. What was the subject matter of the alleged search?

b. Did the claimant have a direct interest in the subject matter?

c. Did the claimant have a subjective expectation of privacy in the subject matter?

d. If so, was the claimant’s subjective expectation of privacy objectively reasonable?

[54] Only if the answer to the fourth question is “yes,” and the claimant’s subjective expectation of privacy was objectively reasonable, will a claimant have standing to assert a section 8 right and challenge the admissibility of the evidence.

[55] The Crown observes that Marakah involved text messages seized from a co-accused’s phone without a warrant. The Supreme Court granted Mr. Marakah standing to challenge the text messages because he had authored the texts, had “a direct interest in the subject matter” and had repeatedly communicated (and testified) that the texts were private and that he asked his co-accused to delete them.

[56] By contrast with the circumstances in Marakah, the Crown submits there is no evidence of a subjective expectation of privacy on Mr. Earle’s part in relation to the video clips found on Mr. Arsenault’s phone, which was seized and searched pursuant to a validly issued warrant.

[57] In one of the video clips, Mr. Earle (riding in the car with Mr. Arsenault shortly after allegedly having committed the Dundas Street arson/break and enter) is depicted bragging about the theft and about burning the cottage, as the camera pans to show some of the stolen property. The Crown argues that the fact of the recording itself, the words spoken, and the mannerisms displayed, reveal “a pride in action, puffery that clearly seeks an audience”.

[58] Of the two video clips in which Ms. Snyder is also featured, one depicts the three individuals discussing the injury caused by the golf club to Mr. Earle’s ear. The second depicts Mr. Arsenault and Mr. Earle showing off some of the spoils from the Briarwood break and enter. The Crown submits that inclusion of a non-party to the crimes committed, and the open display of injury and stolen property, belie any reasonable suggestion that privacy was expected by Mr. Earle.

[59] I perceive no real dispute that the first two lines of the Marakah inquiry favour the establishment of a privacy interest on the part of Mr. Earle.

[60] In respect of the third line of inquiry, Mr. Earle argues that the Supreme Court has been clear that establishing a subjective expectation of privacy is not a “high hurdle”: Marakah, at para. 22. The three videos document Mr. Earle shortly after committing serious crimes and implicate him in all three. There is no mention in any of the videos that they will be shared with anyone else. Indeed, despite posting evidence of the Briarwood break and enter through social media, Mr. Arsenault did not “share” any of the videos. Mr. Earle submits that it follows that he would have a subjective expectation of privacy in these videos.

[61] In Marakah, the Supreme Court identified as the factors most pertinent to the fourth line of inquiry, namely whether Mr. Earle’s subjective expectation of privacy was objectively reasonable as being (i) the place where the search occurred; (ii) the private nature of the subject matter (whether the informational content of the electronic conversation revealed details of the claimant’s lifestyle or information of a biographic nature); and (iii) control over the subject matter.

[62] Although the place of the search was Mr. Arsenault’s mobile phone, section 8 of the Charter “protects people, not places”. The question always comes back to what the individual, in all of the circumstances, should reasonably have expected: (Marakah, at para. 30).

[63] Because Mr. Arsenault’s phone was used to record images of Mr. Earle, with Mr. Earle’s knowledge, his expectation of privacy would attach to that phone. The situation is, he argues, analogous to a physical location (a shared residence, for example), that did not belong to Mr. Earle but where he kept private possessions (such as was the case in R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, where it was held that the fact that the accused lacked control over a computer and its contents that he shared with his spouse was not fatal to a privacy interest, and the consent of his spouse to the search and seizure of the computer did not nullify his reasonable expectation of privacy in respect of its contents).

[64] In R. v. T.I., [2021] O.J. No. 2001 (S.C.J.), the Crown sought to adduce images and videos seized from a friend’s phone as evidence against the applicant in relation to a second-degree murder charge. An issue arose as to the standing of the applicant to challenge the warrant pursuant to which the phone was searched. In relation to the third Marakah line of enquiry, Akhtar J., at paras. 32-3 wrote:

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

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

[65] Noting that (as is the case in the instant matter), he had no evidence before him of the applicant’s subjective expectation of privacy, Akhtar J. noted, at para. 37, that the photographs and videos in question had been taken by another person in a group setting. He continued:

There are a multitude of group images and videos with the applicant posing with confidence, seeking attention and playing to the camera. The images leave a clear impression that the applicant knew the images were to be shared by the person who took them.

[66] Turning to the fourth line of inquiry, Akhtar J. found no objective basis for supporting any subjective expectation of privacy which the applicant might have had (paras. 40-42):

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

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

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

[67] All of the observations made by Akhtar J. in T.I. are equally applicable to the instant case. In the absence of any evidence about Mr. Earle’s subjective expectation of privacy in the subject matter, the most compelling inference to be drawn from the available evidence is that these videos were taken with the knowledge of Mr. Earle and (in the case of two of the three videos) Ms. Snyder. Although Mr. Earle may now want these videos to be regarded as private, the evidence suggests that he harboured no expectation of privacy in the subject matter at the time the videos were taken.

[68] Even if there was evidence of a subjective expectation of privacy on Mr. Earle’s part, I find that he lacked a reasonable expectation of privacy in the videos found on Mr. Arsenault’s phone. I agree with the Crown that “the mannerisms displayed, reveal “a pride in action, puffery that clearly seeks an audience””, and would echo Akhtar J’s comments in para. 42 of T.I. as being equally applicable to the instant case.

[69] Accordingly, I would hold that Mr. Earle has no standing to assert a Charter violation arising the police seizure of Mr. Arsenault’s mobile phone.

Search of the Phone

[70] If I am wrong on the issue of standing, the applicant has failed to advance any basis for invalidating the warrant which authorised the search of Mr. Arsenault’s mobile phone. The warrant specifically authorised the search for various “types” of content, specifically enumerating “photographs, sound recordings and videos”. That warrant is presumptively valid. As stated by the Crown in its reply factum, “[e]ven if this Honourable Court would have found that the Applicant has standing to challenge the seizure and of Mr. Arsenault’s phone and the subsequent search of its contents, the circumstances here are a far cry from those found in R. v. Marakah, where there was no warrant obtained by the police”.

[71] I would therefore dismiss Mr. Earle’s Charter challenge relating to the search and seizure of the videos found on Mr. Arsenault’s phone.

Other Evidence Collected During the Course of the Police Investigation

[72] Mr. Earle submits that even though the clothing and property which were seized when he was arrested in Moncton predated the alleged breaches of his section 10 and section 8 rights, these items were nevertheless “obtained in a manner” that violated his Charter rights. There is both a temporal and contextual link between the evidence seized at the point of Earle’s arrest, and the Charter breaches, that is neither too tenuous nor too remote: see, generally, R. v. Pino, 2016 ONCA 389.

[73] Having found that there were no Charter breaches, the question of whether, to quote Mr. Earle’s factum, when the items were seized in Moncton, the “chain of events that led to the illegal search of the phone [and the 23 October interview] was … already set in motion” is academic. However, for the sake of completeness, suffice it to say that I agree with the following passages taken from the Crown’s responding factum:

45. In the current case the connection between any such breach and the physical evidence sought to be excluded is both tenuous and remote, indeed there is no connection between the alleged breach and the physical evidence.

46. The alleged breach took place four days after Mr. Earle’s arrest and search. The arrest itself and the basis for (and manner of) that search is not challenged by the Applicant. No statement was taken from Mr. Earle proximate to that arrest. Furthermore, the unchallenged search and seizure of the impugned items bear no connection to a (minor) breach based on a failure to make Mr. Earle aware of the full extent of his jeopardy in anticipation of a statement that was almost exclusively about the Attempt Murder case.

47. Similarly, the alleged breach occurred two days after seizure of Mr. Arseneault’s cell phone from Mr. Arsenault’s residence on Albion Street. The download of the phone then occurred 6-8 days later. The breach is temporally removed from these actions. More importantly, the nature of the breach is completely disconnected from the search of Mr. Arsenault’s (not Mr. Earle’s) residence, the seizure of Mr. Arsenault’s (not Mr. Earle’s) phone, and the subsequent download of the relevant contents of that phone, all pursuant to an unchallenged warrant to do so.

Disposition

[74] The Crown’s application for orders ruling that the video-taped statements of the accused persons were voluntarily made and permitting the Crown to adduce the statement of Kyle Arsenault made on 19 October 2019 and the statement by Jordan Earle made on 23 October 2019 at their trial is granted.

[75] The Crown has conceded that the statement of Kyle Arsenault made on 19 October 2019 will not be tendered as evidence against Mr. Earle, but without prejudice to the Crown seeking to rely on evidence of Mr. Earle’s reaction, during the course of his own interview, to portions of Mr. Arsenault’s statement that were played to him.

[76] The application by Mr. Earle for orders excluding from evidence the statement of Mr. Earle made on 23 October 2019, the video recordings found on Mr. Arsenault’s mobile phone, and the items seized incident to arrest, is dismissed.

Mew J.

Released: 10 August 2021

COURT FILE NO.: CR-20-00000053-0000

DATE: 20210810

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JORDON EARLE and KYLE ARSENAULT

Defendants

REASONS FOR DECISION

Mew J.

Released: 10 August 2021