Court File and Parties
PETERBOROUGH COURT FILE NOS.: CR-19-1550 CR-20-3054
DATE: 20210910
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOSHUA DACOSTA
Applicant
– and –
JAIDEN JEFFREY
Applicant
Counsel: Andrew Midwood, for the Respondent andrew.midwood@ontario.ca Barry Fox, for the Applicant Joshua DaCosta bfoxlawyers@gmail.com Alison Craig, for the Applicant Jaiden Jeffrey acraig@lcp-law.com
HEARD: July 16, 2021
REASONS FOR DECISION
LEIBOVICH J.
[1] The applicants are charged with a number of offences arising out of their arrest on June 21, 2019. The police seized, incident to arrest, three cellphones that were found in the applicants’ car. The police subsequently obtained a search warrant to forensically examine the contents of the cellphones. The applicants have brought a pre-trial motion to have the results of that forensic examination excluded. Counsel for Mr. Jeffrey and the Crown have filed written material. Mr. DaCosta has adopted the written submissions filed by Mr. Jeffrey. Counsel for both applicants and the Crown made oral submissions via Zoom on July 16, 2021. I reserved my decision to today’s date.
[2] The applicants seek leave to cross-examine the affiant. Irrespective of whether their request for leave is granted, the applicants submit that their s. 8 rights were breached because:
The information to obtain lacked reasonable and probable grounds; and
The police failed to file a report to justice regarding their analysis of the phones.
[3] The applicants submit that pursuant to s. 24(2) of the Charter the evidence seized should be excluded.
[4] It is the Crown’s position that even after the excision of any problematic statements, there was a strong foundation for the warrant to be issued. Furthermore, there is no requirement that a report on the metadata analysis be filed before a justice. Finally, even if a report was required the s. 24(2) analysis points towards the admission of the evidence.
[5] This application raises the following issues:
Should leave be granted to cross-examine the affiant?
Was there reliable evidence upon which the warrant could have been issued?
Were the police required to submit a report to justice of their metadata analysis?
Should the results of the analysis be excluded pursuant to s. 24(2) of the Charter?
Brief Factual Overview
[6] The Peterborough Police received information that Kenneth Howse was selling firearms to drug dealers. The police learned that Mr. Howse held a valid firearms license and had nine handguns registered to him. The police began surveillance of Mr. Howse and saw him attend, on June 7, 2019, a local gun store, Accuracy Plus. He left the store with a gun case and ammunition. He entered a dark coloured Ford Fusion occupied by two black males. He was driven to a residential address in Peterborough and exited the car, without the gun case and ammunition. The car left the area. The police continued their surveillance of him. On June 21, 2019, the police were told that another gun purchased by Mr. Howse was now ready for pick up from Accuracy Plus. Mr. Howse was seen leaving a residence, getting in the Ford Fusion, and leaving with two other male occupants. The car arrived at Accuracy Plus. Mr. Howse went inside the store and exited shortly with a handgun case. He got in the car and was driven back to the City of Peterborough and dropped off without the gun case. The Emergency Response Team of the Peterborough Police initiate a traffic stop of the motor vehicle.
[7] The car was stopped, and the police arrested the occupants. Jaiden Jeffrey was the driver and Joshua DaCosta the passenger. They were placed under arrest, and in the passenger foot-well a handgun case containing a Glock handgun and three magazines was found. Three cellphones were found in the front of the motor vehicle, along with cocaine, Canadian currency, and weigh scales.
[8] The phones were seized incident to arrest. The police subsequently obtained a warrant to forensically examine the contents of the cellphones. The applicants have brought this application to exclude the results of that analysis.
Issue 1: Should leave be given to cross-examine the affiant?
[9] The applicants have set out a number of areas where they submit that the affiant has made misleading statements in the Information to Obtain (ITO). They seek leave to cross-examine the affiant in this regard.
[10] The applicants submit that the affiant’s failure to provide full, frank and fair disclosure was a purposeful attempt to undermine the pre-authorization process: R. v. Strauss, 2017 ONCA 628, [2017] O.J. No. 4084, at para. 25; R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, leave to appeal refused, [2017] S.C.C.A. No. 81, at para. 66. The Crown submits that the applicants can make all of their submissions without cross-examining the affiant and that the cross-examination would not be of assistance to the court.
[11] I heard brief oral submissions on the request for leave to cross-examine the affiant. I then reserved my ruling in this regard and asked counsel to make their submissions on the rest of the issues.
[12] An accused does not have an automatic right to cross-examine the affiant of an ITO in aid of a motion to exclude evidence obtained as a result of the execution of a warrant. The accused must obtain leave from the trial judge. In R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1465, Sopinka J. held that cross-examination of the affiant should be allowed where:
[T]he trial judge is satisfied that the cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds. [Emphasis added.]
[13] This approach was confirmed in R. v. Pires and R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 where Charron J. provided the following useful guidance at para. 40:
[T]he Garofoli leave requirement is simply a means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of the relevant issues. The reason that the test will generally leave just a narrow window for cross-examination is not because the test is onerous -- it is because there is just a narrow basis upon which an authorization can be set aside. Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focussed on the question to be determined on a Garofoli review -- whether there is a basis upon which the authorizing judge could grant the order. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted. [Emphasis added]
[14] Doherty J.A. stated in R. v. Green, 2015 ONCA 579, [2015] O.J. No. 4428, at para. 34 that:
Cross-examination of the affiant will be allowed when the trial judge is satisfied that there is a reasonable likelihood that the proposed cross-examination will assist in determining whether the necessary grounds existed for the issuance of the search warrant.
[15] The ultimate reliability of the information in the ITO is not in issue on a motion to cross-examine the affiant. It is not necessary for the defence to demonstrate that the cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization. As stated by Justice Doherty in R. v. Shivrattan, 2017 ONCA 23, [2017] O.J. No. 210, at para. 49:
…The trial judge is only concerned with whether there is a reasonable likelihood that the proposed cross-examination would assist in determining whether the grounds existed for the issuance of the warrant. The defence is not required to show that the cross-examination will succeed in demonstrating that unreliability: Green, at paras. 34-36; and Garofoli, at pp. 1463-1465.
[16] A further review of the case law demonstrates that:
The proposed cross-examination may be directed at the credibility or reliability of the affiant;
Cross-examination that only shows that the information relied upon was false is not likely to be useful unless an inference can be raised that the affiant knew or ought to have known that the information was false. Simply pointing to omissions, inconsistencies, or conclusory or inaccurate statements is not a sufficient basis to permit cross-examination. Put another way, “The focus is on the reasonableness and honesty of the affiant's belief as to the existence of the requisite grounds, and not on the ultimate accuracy of the information relied on by the affiant”;
Cross-examination may “undermine” the grounds set out in the ITO either by contradicting information in the ITO or by adding information that was not in the ITO. “The honesty and/or reasonableness of the affiant's grounds for believing that the warrant should issue are the ultimate target of the cross-examination”; and
Cross-examination may be allowed on a wider basis if there is a reasonable basis to believe that an affiant has deliberately attempted to mislead the authorizing judge in some part of the ITO.
R. v. Sadikov, 2014 ONCA 72 at para. 40, R. v. Pires at paras. 41-43, 60, R. v. Green at paras. 34-36, R. v. Reid, 2017 ONCA 430, [2017] O.J. No. 2758 at para. 17.
[17] I do not see that cross-examination of the affiant would be of assistance to me in determining whether grounds existed for the issuance of the warrant. The applicants have set out numerous problems with the ITO. Submissions in this regard can be made without any cross-examination as the suggested errors are either present or they are not. Furthermore, if the errors are present Counsel can still, in this case, without cross-examination, argue that they support an inference that the errors were deliberate and that the affiant was purposely trying to undermine the judicial authorization process. Furthermore, a main complaint by the applicants is that there was no reasonable basis to believe that a search of the phones would provide evidence of firearm trafficking. This argument can just as effectively be made without cross-examining the affiant. I do not see cross-examination of the affiant as adding anything to the factual mix in this case.
Issue 2: Was there reliable evidence upon which the warrant could have been issued?
Standard of Review
[18] A warrant is presumed to be valid and the onus is on the party seeking to invalidate it: R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, aff'd 2011 SCC 32, [2011] 2 S.C.R. 549; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421. The scope of warrant review is narrow. It is not a de novo hearing. The reviewing judge does not substitute his or her view for that of the issuing judge. “[T]he test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could - not would - have issued”: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54; R v. McNeill, 2020 ONCA 313, [2020] O.J. No. 2282, at paras. 30-34.
[19] The question to be determined by this Court is whether the justice could have issued the warrant. To comply with the constitutional standard, this requires at the time of the granting of the authorization there must be reasonable grounds to believe that an offence has been or is being committed and that the authorization will afford evidence of the offence. Reasonable grounds to believe does not require proof on the balance of probabilities, much less proof beyond a reasonable doubt. It requires more than an experience-based “hunch” or reasonable suspicion. The statutory and constitutional standard is one of “credibly-based probability”: In making this evaluation, the issuing justice must consider the ITO as a whole, in a “common sense, practical, non-technical way, and may draw reasonable inferences from its contents.”: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 16; R. v. Sadikov at paras. 81 and 82; R. v. McNeil at paras. 32 and 33. As summarized recently in R. v. McNeil at paras. 32 and 33:
The standard of “reasonable grounds to believe” does not require proof on a balance of probabilities, but rather only a credibly-based probability: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167; Sadikov, at para. 81. The ITO must provide “reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search. ... If the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in the ITO, the warrant could be issued”: Sadikov, at para. 81; see also R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22.
In making this evaluation, the issuing justice considers the ITO as a whole, in a common sense, practical, non-technical way, and may draw reasonable inferences from its contents: Sadikov, at para. 82; Vu, at para. 16. The record on a facial challenge is limited to the ITO: Sadikov, at para. 37; R. v. Wilson, 2011 BCCA 252, 272 C.C.C. (3d) 269, at para. 39.
[20] The applicants have launched a facial and sub-facial attack on the warrant. The reviewing court must exclude erroneous information included in the original information to obtain. However, sub-facial attacks do not expand the scope of the review. The task of the reviewing judgeon a sub-facial challenge is to consider whether, on the record before the authorizing justice as amplified on the review, the authorizing justice could have issued the warrant. As stated by Watt J.A. in R. v. Sadikov, at para. 38,
Sub-facial challenges go behind the form of the ITO to attack or impeach the reliability of its content: Araujo, at para. 50; and Wilson, at para. 40. Sub-facial challenges involve an amplified record, but do not expand the scope of review to permit the reviewing judge to substitute his or her view for that of the authorizing judicial officer: Araujo, at para. 51; and R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452. The task of the reviewing judge on a sub-facial challenge is to consider whether, on the record before the authorizing justice as amplified on the review, the authorizing justice could have issued the warrant: Araujo, at para. 51; and Garofoli, at p. 1452. The analysis is contextual: Araujo, at para. 54. The reviewing judge should carefully consider whether sufficient reliable information remains in the amplified record, in other words, information that might reasonably be believed, on the basis of which the enabling warrant could have issued: Araujo, at para. 52.
[21] When conducting a review, the court must conduct a contextual analysis: R. v McNeil at para. 33. Inaccuracies in the information to obtain, “on their own, are not a sufficient basis on which to ground a finding of bad faith or an intent to mislead, much less to provide a basis on which to set aside the warrant: R. v. Araujo at para. 54. The existence of fraud, non-disclosure, misleading evidence, and new evidence are all relevant but are neither a prerequisite to, nor dispositive of, the review”: R. v. Sadikov, R. v. Garofoli, at p. 1452.
[22] The applicants have made a number of sub-facial attacks and they allege a number of improper and/or misleading statements. I will address each of them in turn.
Not charged with a s. 99 offence
[23] Appendix B lists the number of offences that the affiant believed that the anticipated discovered evidence would support. One of the offences listed is that the applicants did “transfer a firearm” contrary to s. 99 of the Criminal Code. However, the applicants submit that their listed offences in the ITO do not contain that offence. The applicants are correct in that they were never charged with a s. 99 offence, but I do not see anything inappropriate about including the s. 99 offence in Appendix B. The police are entitled to write the warrant to an offence not already charged in the investigation. Warrants are investigative tools.
Ken Howse observed purchasing a gun
[24] Paragraph 13 of the ITO states that the “officers observed Ken Howse attend Accuracy Plus gun store and purchase a handgun and ammunition.” The applicants submit that this is inaccurate as the police observed Mr. Howse attend Accuracy Plus and leave carrying a black plastic gun case, but no officer observed him purchase a handgun and ammunition. This misstatement was made with respect to the June 7th transaction, and, more critically, also with respect to the June 21st transaction as it is after the June 21st observed events that the police arrested the applicants. The applicants submit that the misstatement is repeated a number of times in the ITO.
[25] I agree that the reference that the police observed Mr. Howse purchase a handgun and ammunition on June 21st puts the evidence too strongly. However, these comments come in the overview of the investigation at the outset of the ITO and later in the summary of the grounds to believe an offence has been committed. Critically, the affiant detailed elsewhere in the ITO exactly what the police observed with respect to the June 21st transaction. The ITO states that Mr. Howse had initiated a gun purchase from Accuracy Plus on June 7th. It was approved on June 19th and had to be picked up. On June 21st the police observed the following:
a) On June 21, 2019, Mr. Howse was observed being picked up by a grey Ford Fusion and driven to Accuracy Plus;
b) Mr. Howse exited the car and entered the store;
c) Mr. Howse exited the store carrying a black gun case in hand and got back in the car;
d) The car then drove away and stopped at a parking lot; and
e) Mr. Howse exited the car with nothing in his hands.
[26] This information would have made it clear to the issuing justice that there was no direct observation of Mr. Howse actually buying the gun at Accuracy Plus. It would have been left to the justice of the peace to make the reasonable conclusion that Mr. Howse bought the gun at Accuracy Plus on June 21, 2019.[^1]
[27] I agree though with counsel that a direct observation of Mr. Howse buying the gun on the 21st should be excised and the record should be edited in that regard. However, relying on the details of what the police in fact saw, there was certainly strong circumstantial evidence that Mr. Howse bought a firearm from Accuracy Plus on June 21st.
The same grey Ford Fusion
[28] The applicants submit that the ITO overstates the connection of the car that drove Mr. Howse on June 7th and the car that drove Mr. Howse on June 21st. Specifically, the applicants object to the use of the language “same Grey Ford Focus” because the police could not confirm the marker of the vehicle observed on June 7, 2019, and that the markers noted on June 7 and June 21 were different, specifically that the license plate was different.
[29] I do not agree. The affiant fully and fairly set out the police observations of the car. I say this for the following:
The applicants have stated that at one point the car was described as a Ford Fusion and at one point it was described as a Ford Focus. This is incorrect. The information to obtain never described the car as a Ford Focus.
The information to obtain states that on June 7th, Mr. Howse was seen entering a grey Ford Fusion. The Ford Fusion had a licence plate number CWH P132. However, a check on that plate came back as not found. The next day, the police observed the same Ford Fusion. The licence plate was CHVP 132. This licence plate came back as attached to an Enterprise Car Rental. This information is set out in the ITO under the heading “Correct plate for Ford Fusion – 8th June 2019.” Therefore, it seems that the police were of the belief that the car observed on June 7th had a licence plate of CHVP 132 and that the recording of the license as starting with CWH was a mistake.
The ITO then states that on June 21, 2019, Mr. Howse was seen entering a grey Ford Fusion with licence plate CHVP 132.
[30] Having regard to the above, I agree that it was appropriate for the affiant to state that the same car observed on June 21st was observed on June 7th.
The firearm was sold
[31] The applicants submit that the affiant incorrectly stated on two occasions that the firearm was sold in June 21st but that there was no evidence that the firearm was in fact sold as there is no evidence that there was any consideration given for the firearm. I agree. However, I do note that the reference to sold is found in the overview and in the summary of grounds at the end and that the affiant, when setting out the June 21st observations in detail, did not state that gun was sold. A more accurate summary would simply be that the firearm was left in the applicants’ car and the ITO should be edited in that regard.
The listing of the applicants’ charges
[32] The applicants submit that the manner in which their charges were listed in the ITO do not make it clear that the applicants did not have a criminal record. I disagree. The affiant clearly stated that the applicants do not have a criminal record.
[33] The affiant wrote that “I spoke with officers regarding the takedown of this investigation and the arrests of Ken Howse, Jaiden Jeffery and Joshua Dacosta.” I disagree with the applicants’ submissions that the Justice would have been of the view that the applicants were known before their arrest. A review of the information to obtain as a whole makes it evident that the identities of the applicants were not known until they were arrested.
Recovery of the gun
[34] The applicants state that the evidence was not strong that the gun recovered from the car was the same gun that was bought at Accuracy Plus. I disagree. It was a reasonable conclusion given that Mr. Howse was seen exiting the gun store with a gun case entering the applicants’ car and exiting without it and that a gun case with a gun was then found in the car driven by the applicants upon the applicants’ arrest.
Serious offence
[35] The affiant, in the ITO, states that these are serious offences and that Mr. Howse needs to be held accountable. I agree with counsel that this comment is inappropriate, has no place in an ITO and should be excised.
No credible basis to believe that evidence of firearm trafficking would be found on the phone
[36] The editing and excising of the ITO discussed above do not change the information that was before the issuing justice in any material way. However, the applicants state that the ITO contains a material defect. Specifically, they submit that there was no credible basis to believe that evidence of firearm trafficking would be found on the phone. Counsel for Mr. Jeffery wrote in her factum:
P. 15, para. 25 – the affiant outlines that drug traffickers use cell phones and therefore there are grounds to believe the Applicant has communicated through text message with Howse. The ITO is for a firearm trafficking investigation. The purpose of searching the cell phones is to disclose evidence of firearm trafficking, no drug trafficking. This was improperly added by the affiant.
P. 17, para. 30(h) – “I do believe that Howse used a phone to communicate with these males.” There is no evidence that Howse used a phone during this investigation. This is a bald statement without any evidentiary basis.
There is no evidence that Howse used a cell phone or communicated through text messages with the Applicant. Without this proper evidentiary link, there is no reason to believe that evidence would be located on the Applicant’s cell phone. The affiant was aware that Howse was arrest without a phone. Without any further evidence, the affiant decided to insert a bald statement that he must communicate with the Applicant. A bald statement is insufficient for a credible-based probability.
[37] I disagree. Again, I do not substitute my view for that of the issuing judge. The test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could - not would - have issued. I agree with the applicants that there was no evidence in the ITO that Mr. Howse used a cell phone or that he communicated via phone with the applicants. But I disagree with the applicants that the absence of this evidence renders the warrant deficient.
[38] There was a credibly based probability that evidence would be found on the cell phones found in the car. I say this for the following reasons:
a) The ITO contained evidence regarding the practices of drug dealers and their use of cell phones. The applicants submit that this is a case of alleged gun trafficking not drug trafficking. The information set out in the ITO with respect to the practices of drug dealers using cell phones was not misplaced. When the police stopped the applicants’ car, they found a gun, cocaine, a weigh scale, and large amount of Canadian currency. This evidence supported the inference that the applicants were in fact involved in drug trafficking thus the evidence of the practice of drug dealers was relevant;
b) The affiant relied on the general use of cell phones by people:
I believe that it is common practice – and common knowledge – for people to communicate via cell phone by sending receiving calls and text messages. I expect that the cellular devices in question would hold this type of evidentiary data which may be found when this search warrant is executed…
I do not see anything wrong with relying on this common sense inference. People use cellphones to communicate on a routine basis.
c) The evidence in this case showed that there had to be some prior coordination to set up the events of June 21st. Mr. Jeffrey lived in Scarborough, Mr. DaCosta lived in Ajax and Mr. Howse lived in Peterborough. According to the ITO, the applicants arrived at Mr. Howse’s home and drove him to the Accuracy Plus store. There was clearly some co-ordination ahead of time to arrange for this meeting. In this case three cell phones were found in the car. It is logical to infer that these phones were used to communicate with Mr. Howse either directly or indirectly to set up the meeting on the 21st of June. I agree with Crown counsel’s comments in his factum:
Further, the ITO (read as a whole) describes the co-ordinated meetings of individuals (Mr. Howse from Peterborough, Mr. Jeffrey from Ajax) and their transportation around town. It is reasonable to assume people organize their meetings with the assistance of cellular phones.
The pervasive use of cell phones as communication devices in society is such that it is now the dominant means of communication. The belief that Mr. Howse [in response to Issue J] and/or Mr. Jeffrey utilized a cellular phone is not a bald assertion, but a common-sense statement of a readily ascertainable fact.
Residual Discretion
[39] The court has a residual discretion to set aside a warrant, where grounds still remain after the impugned parts have been excised, where the court is of the view that the errors were a deliberate attempt to undermine the pre-authorization process: R. v. Strauss, 2017 ONCA 628 at para. 25; R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, leave to appeal refused, [2017] S.C.C.A. No. 81, at para. 66. As stated by Watt J.A. in R. v. Paryniuk at para. 69:
What is clear, however, is that previous authority in this court has recognized a residual discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like: Colbourne, at para. 40; R. v. Kesselring (2000), 145 C.C.C. (3d) 119, at para. 31; Lahaie, at para. 40; Vivar, at para. 2. Courts of appeal in other provinces have reached the same conclusion: Bacon, at para. 27; Evans, at paras. 17, 19; R. v. McElroy, 2009 SKCA 77, 337 Sask. R. 122, leave to appeal refused, [2009] S.C.C.A. No. 281, at para. 30; Morris, at paras. 90, 92.
[40] I do not find that the few misstatements described above or the unnecessary insertion of the need to hold Mr. Howse accountable as an attempt by the affiant to mislead the issuing justice or subvert the judicial authorization process. The impugned comments are few and minor. The impugned comments cannot be realistically seen as an attempt by the affiant to alter the evidentiary landscape before the reviewing justice as the affiant described the more fulsome state of affairs in the main part of the ITO for the issuing justice’s consideration.
Issue Three: Were the police required to file a report to justice for its analysis on the cellphones?
[41] There is no dispute regarding the factual background to this issue. The police seized cellphones from the interior of the car pursuant to their common law authority. A report to justice was filed. A judicial officer endorsed the continued detention of the things seized. The police subsequently obtained a warrant to authorize a search of the data in the cellular device seized. The warrant was granted but no subsequent report was made to the justice describing the results of that search. The Crown submits that a report is unnecessary given that there was already a report to the justice regarding the seizure of the cell phones themselves. The Crown submits that a second report is not necessary. I disagree.
[42] Section 489.1(1) of the Criminal Code mandates a report back to the justice. I appreciate that the extraction of data from a thing already seized was not something that was contemplated when the section was mandated. That being said this does not mean that I have the ability to ignore the Criminal Code. If a peace officer fails to file under a report under s.489.1(1), the property seized is not subject to judicial supervision under s. 490 which plays an important role in protecting privacy interest. R. v. Garcia-Machado, 2015 ONCA 569 at paras. 16, 44 and 45.
[43] Section 489.1(1) is not a “meaningless exercise in paperwork”. As explained by Fairburn J.A. in R. v. Canary at para. 45:
Section 489.1(1) applies to seizures made both with and without prior judicial authorization: Backhouse, at para. 111. The provision fulfills an important purpose, providing the gateway to s. 490 of the Criminal Code: R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, at paras. 15, 55; Backhouse, at para. 112. Section 489.1 should not be conceptualized as a meaningless exercise in paperwork. Filing the initial report under s. 489.1(1) is the act that places the property within the purview of judicial oversight. It provides for a measure of police accountability when dealing with property seized pursuant to an exercise of police powers. This provides an important measure of protection to the party who is lawfully entitled to the property, but also provides a measure of protection to the police who become the custodians responsible for the property seized. Allowing for this type of oversight is particularly important in the wake of warrantless seizures, ones where no prior authorization has been given, meaning the seizures are beyond the knowledge of the judicial system.
[44] The Crown relies on R. v. Nurse. 2019 ONCA 260, 145 O.R. (3d) 241. However, the Court of Appeal did not address this issue in that case. In R. v. Nurse, the devices were lawfully seized upon searches incident to their arrests and the police obtained a valid search warrant authorizing an analysis of the data on their devices. An analysis was done. A second analysis was done later on, and the sole argument was that the second analysis was a “search” and therefore required a further warrant. The Court of Appeal agreed that a new warrant was not needed to authorize the new analysis of the phones. Trotter J.A. stated that it is important to consider the essential nature of computers and other digital devices. He stated at paras. 132 and 133:
In analyzing this issue, it is important to consider the essential nature of computers and other digital devices. They challenge traditional definitions of a "building, receptacle or place" within the meaning of s. 487 of the Criminal Code. In R. v. Marakah, [2017] 2 S.C.R. 608, [2017] S.C.J. No. 59, 2017 SCC 59, McLachlin C.J.C. said, at para. 27: “The factor of 'place' was largely developed in the context of territorial privacy interests, and digital subject matter, such as an electronic conversation, does not fit easily within the strictures set out by the jurisprudence.” See, also, R. v. Jones (2011), 107 O.R. (3d) 241, [2011] O.J. No. 4388, 2011 ONCA 632, at paras. 45-52. Similarly, in R. v. Vu, [2013] 3 S.C.R. 657, [2013] S.C.J. No. 60, 2013 SCC 60, Cromwell J. said, at para. 39, “. . . computers are not like other receptacles that may be found in a place of search. The particular nature of computers calls for a specific assessment of whether the intrusion of a computer search is justified, which in turn requires prior authorization.”
Because of these conceptual differences, arguments by analogy to traditional (i.e., non-digital) search scenarios will not always be helpful.
[45] I appreciate that Justice Akhtar in R. v. Robinson [2021] O.J. No. 1797 found that a second report to the justice was not required and that there was no utility in submitting a second report. The Crown relies on this decision and submits that:
These examples illustrate why s.489.1 is not designed, nor should it be expanded, to require a Return to Justice be filed for data (that is to say, information) that is yielded from a lawful inspection of the item(s) seized.
[46] However, the starting point is not, as the Crown submits, an expansion of the Criminal Code. Rather, the Criminal Code, in quite clear language requires a report. The section states:
489.1 (1) Subject to this or any other Act of Parliament, where a peace officer has seized anything under a warrant issued under this Act or under section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,
(a) where the peace officer is satisfied,
(i) that there is no dispute as to who is lawfully entitled to possession of the thing seized, and
(ii) that the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding, return the thing seized, on being issued a receipt therefor, to the person lawfully entitled to its possession and report to the justice who issued the warrant or some other justice for the same territorial division or, if no warrant was issued, a justice having jurisdiction in respect of the matter, that he has done so; or
(b) where the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii),
(i) bring the thing seized before the justice referred to in paragraph (a), or
(ii) report to the justice that he has seized the thing and is detaining it or causing it to be detained to be dealt with by the justice in accordance with subsection 490(1).
[47] In my view, the practical issues that have been noted do not mean that the Criminal Code requirement that a report to justice be made, can be ignored. Furthermore, it is important to remember that the police will obtain a report of the analysis done. I do not see any real difficulty in the police using this report or modifying it in order to satisfy its requirement pursuant to s. 489.1 of the Criminal Code.
[48] The Crown submits that a breach of s. 489.1 does not mean that there has been a breach of s.8. This issue was addressed by the Court of Appeal in R. v. Garcia-Machado where the Court of Appeal found that a clear failure to comply with the requirement of s.489.1(1) was a breach of s.8. The Court of Appeal stated at para. 55:
I conclude therefore that the Constable’s clear failure to comply with the requirement in s. 489.1(1) that he report to a justice as soon as practicable breached s. 8 of the Charter. I leave for another day whether any other breach of s. 489.1(1) or any breach of s. 490 – even if so minor or technical as to have no real impact on the judicial oversight contemplated by the sections – would breach s. 8 of the Charter.
[49] The failure to file a report breached the applicants’ section 8 rights. The circumstances of the breach will be considered in my analysis under s. 24(2).
Issue 4: Should the evidence obtained be excluded pursuant to s.24(2) of the Charter?
[50] The s. 24(2) analysis is contextual and must account for all the circumstances. The key to the s. 24(2) analysis is the balancing of the following factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on the merits: R. v. Grant, 2009 SCC 32, [2009] S.C.R. 353, at para. 71.
(1) the seriousness of the Charter-infringing state conduct
[51] The task with respect to this factor is to situate the state conduct on a scale of culpability. In assessing the seriousness of the conduct, the Supreme Court in R. v. Grant at para. 74 provided the following guidance:
State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.
[52] This is not, in my view, a case of deliberate misconduct. The police properly seized the cellphones incident to arrest. The police then properly sought and obtained a search warrant to analysis the phones they had seized. They submitted a first report for the seized cellphones but did not submit a second report. While I found that a second report was required, I agree that the need to do so may not be seen as obvious. The Charter infringing conduct was not serious. Like in R. v. Machado-Garcia, I find the seriousness of the breach in this case to be “minor or technical”. This line of inquiry tips towards inclusion.
(2) The impact of the breach on the Charter-protected interests of the accused
[53] The second line of inquiry demands a consideration of the seriousness of the breach from the perspective of the accused. The impact of a breach may range from fleeting and technical to profoundly intrusive. In this case the impact of the breach was relatively minor. The cellphones were properly analyzed pursuant to a search warrant. A report to the justice identifying that the cell phones were seized (but not the data) was made. As stated by the Court of Appeal in R. v. Machado-Garcia at para. 45:
The fact that a person may have a diminished reasonable expectation of privacy after a lawful, initial police seizure and that in a particular case there may have been virtually no impact on that expectation will be important factors in the analysis under s. 24(2) of the Charter.
[54] This is one of those case. This line of inquiry tips towards inclusion.
(3) Society's interest in the adjudication of the case on the merits
[55] It must be remembered that the exclusion of relevant and reliable evidence can undermine the truth-seeking function of the justice system, "thus bringing the administration of justice into disrepute”: In this case the Crown submits that the found evidence is reliable evidence but agrees that the exclusion of the evidence would not prevent it from prosecuting either of the applicants.
[56] In my view, in this case, this is a neutral factor.
The balancing
[57] The s. 24(2) analysis requires a balancing of all these factors and all these circumstances, there are no automatic rules, there is no mathematic formula. As stated by the Court of Appeal in R. v. Thompson, 2020 ONCA 264 at paras. 106:
The final step under the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision: Harrison, at para. 36.
[58] In my view, the combination of all the factors and all the lines of inquiry require that the evidence be admitted. The breach was not serious and had no real impact on the applicants’ Charter-protected interests. The application is dismissed.
Justice H. Leibovich
Released: September 10, 2021
PETERBOROUGH COURT FILE NOS.: CR-19-1550 CR-20-3054
DATE: 20210910
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JOSHUA DACOSTA
Applicant
– and –
JAIDEN JEFFREY
Applicant
REASONS FOR DECISION
Justice H. Leibovich
Released: September 10, 2021
[^1]: Counsel at the oral hearing focused on the affiant’s wording with respect to the June 21st transaction as it is that transaction that led to the stop and arrest of the applicants. Furthermore, there is no information before me that the observation of the June 7th transaction is inaccurate or overstated.