Her Majesty the Queen v. Jahmyle Johnson and Kyle Bancroft

COURT FILE NO.: 17-R2037

DATE: 2021/09/28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JAHMYLE JOHNSON and KYLE BANCROFT

COUNSEL:

John Semenoff for the Crown

Leo Russomanno for Mr. Johnson

Tobias Okada-Phillips for Mr. Bancroft

HEARD: March 22-26, 29, 30, 31; April 1, 2; and July 2, 9, 2021

RULING on ADMISSIBILITY OF PHOTO LINE-UP EVIDENCE

Justice Sally Gomery:

[1] During his trial on charges arising from a home invasion and robbery in Ottawa in August 2016 (the “Carron robbery”), Jahmyle Johnson applied to exclude evidence obtained at two photo line-ups. Mr. Johnson’s photo was included in the line-ups based on data found on a cellphone he was carrying when he was arrested in early 2017 in Owen Sound on unrelated charges.[^1] In R. v. Johnson, 2021 ONSC 1307, I concluded that the manner in which police in Owen Sound searched the phone violated Mr. Johnson’s rights under s. 8 of the Canadian Charter of Rights and Freedoms. He now brings this s. 24(2) application, arguing that the lineup evidence is the fruit of this unlawful search and that its admission would bring the administration of justice into disrepute.

Background

[2] I canvassed the evidence with respect to the search of Mr. Johnson’s cellphone at length in my earlier ruling. I will not review the evidence in detail again but simply summarize my findings.

[3] In May 2017, Detective Constable Brent Down, an officer in Owen Sound, obtained a warrant pursuant to the Controlled Drugs and Substances Act (S.C. 1996, c. 19) (“CDSA”) to download and search data from Mr. Johnson’s cellphone after he was arrested on drug trafficking charges. Having learned that Mr. Johnson was a suspect in a shooting in Barrie (the “Barrie shooting”), Officer Down reviewed the phone’s browser history when he conducted the search. He found queries about various crimes committed in Ontario, including both the Carron robbery and the Barrie shooting. Officer Down contacted officers involved in investigations of these crimes to tell them what he had discovered. One of the people he spoke with was Detective Constable Chris Fahey, an Ottawa Police Service detective who was investigating the Carron robbery.

[4] Mr. Johnson had not previously been a suspect in the Carron robbery. After the call from Officer Down, however, Detective Fahey arranged for photo lineups with two witnesses and included a mug shot from an earlier arrest of Mr. Johnson in the array. Based on the witnesses’ statements when they saw Mr. Johnson’s photo at the lineups as well as other evidence, he was arrested and charged.

[5] In September 2017, after the lineups had taken place, Detective Fahey asked Officer Down for a copy of the cellphone data he had retrieved from Mr. Johnson’s phone. Detective Fahey reviewed the data when he received it and again in May 2019, shortly before the preliminary inquiry. He conducted his second search of the data at the suggestion of an assistant Crown attorney, who advised him that he did not need to obtain his own warrant. At no point did either Detective Fahey or the assistant crown attorney take steps to get a copy of the CDSA warrant obtained by Officer Down. After he testified at the preliminary inquiry, Detective Fahey was advised by Crown counsel on the file that he should obtain a warrant to search the data. Detective Fahey then did so.

[6] In February 2021, Mr. Johnson and Mr. Bancroft applied under ss. 8 and 24(2) of the Charter to exclude the cellphone data as evidence at trial. I concluded that Officer Down’s search violated Mr. Johnson’s right against unreasonable search and seizure, because the CDSA warrant did not permit him to search the cellphone’s internet browser history. The history was not in plain view during the search. Its discovery was the result of a conscious decision on Officer Down’s part to obtain evidence that might be relevant to the investigation of Mr. Johnson’s involvement in other crimes. The further searches of the cellphone data by Detective Fahey in September 2017 and May 2019 were similarly conducted without any judicial authorization.

[7] Having found that the searches were illegal, I concluded that the admission of the cellphone data into evidence would bring the administration of justice into disrepute. The conduct of the police and the Crown attorney recklessly disregarded Mr. Johnson’s privacy rights and well-established legal principles regarding searches. Although the evidence was relevant to the merits of the case, the factors in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, weighed against its admission.

[8] In my February 2021 decision, I noted that Officer Down’s communication to Detective Fahey with respect to the cellphone’s search history was the only impetus for the photo lineups that included Mr. Johnson’s photo. I did not, however, rule on the admissibility of the evidence obtained at the lineups, because the defence had not yet asked me for a ruling on this issue. It was also unclear what evidence had been obtained at the lineups, making it difficult to assess and apply the Grant factors.

The photo lineup evidence

[9] At trial, the Crown sought to introduce statements made by Theresa Carron and Cary St. Michael at the two 2017 photo lineups. Mr. Johnson objected on the basis that his photo was included in the array based on Officer Down’s illegal search. Counsel subsequently agreed that the evidence could be presented, subject to the objection, and that Charter arguments on its exclusion could be made at the end of trial.

The first lineup

[10] Mrs. Carron was the only person at home when two men broke into her family residence on August 22, 2016. She testified that the two robbers were both Black men. The taller robber held a gun. The shorter robber did the talking. According to Mrs. Carron, the shorter robber had short, spiky dreadlocks sticking two to three inches out from his head and was clean shaven.

[11] At the 2017 photo lineup, Mrs. Carron was shown twelve photos of Black men, including Mr. Johnson. Seeing his photo, she told police that it was a “possibility” that he was the shorter robber. She testified that this was based on Mr. Johnson’s overall appearance in the photo, as well as the shape of his face and tone of his skin. She acknowledged, however, that she recalled that the shorter robber had a different hairstyle and no facial hair. Based on the photo, Mrs. Carron was 50 percent sure that Mr. Johnson was the shorter robber. Even if he had been wearing the shorter robber’s distinctive hairstyle, however, she would only have been 70 to 75 percent sure that it was Mr. Johnson.

[12] At the lineup, Mrs. Carron also told police that she had the impression that the shorter robber was not a “true Black”. She explained at trial that she had the impression that he might have one parent who was white or that he otherwise had mixed racial heritage. Mrs. Carron acknowledged that Mr. Johnson, who she could see on a video monitor, is Black.

[13] Mr. Johnson contends that Mrs. Carron’s statement that Mr. Johnson was a “possibility” does not have much value. The Crown says it does not seek to rely on Mrs. Carron’s statement at the lineup that Mr. Johnson was possibly the shorter robber. It contends that the videotape of the lineup should be admitted, however, because Mrs. Carron’s other statements to police on that day are relevant.

The second lineup

[14] Cary St. Michael was an employee of Mr. Bancroft who confessed to being involved in the planning and perpetration of the Carron robbery in August 2017. He told police that the robbery was committed by two Black men from Toronto whom Mr. Bancroft had arranged to come to Ottawa. Prior to the lineup, Mr. St. Michael had described the men to police but had not been able to provide their names because he knew only their aliases. At the line-up, Mr. St. Michael looked at Mr. Johnson’s photo for about 30 seconds, shook his head slightly and said that “it could be him [one of the robbers]”. When a police officer suggested he had to give a yes or no answer, he said “I’m gonna say yes”.

[15] Mr. Johnson contends that Mr. St. Michael’s statements at the lineup were equivocal and of little value. The Crown contends that Mr. St. Michael positively identified Mr. Johnson at the lineup, and that this evidence has significant weight because of the amount of time that Mr. St. Michael spent with the shorter robber before and after the robbery.

Should the photo lineup evidence be admitted?

[16] I reject the Crown’s submission that the conduct of the lineup did not itself breach Mr. Johnson’s Charter rights and that it is irrelevant to ask why his photo was included in his array. The inclusion of Mr. Johnson’s photo was a direct result of the breach of his privacy rights during Officer Down’s unlawful search of his phone. The information that Officer Down discovered during that search and communicated to Detective Fahey was the catalyst for the two lineups. There is no evidence that the lineups would have taken place at all in the absence of the unlawful search.

[17] Since the search violated Mr. Johnson’s rights and the lineups would not have occurred in the absence of that violation, I must consider whether the evidence obtained through the lineup should be admitted under s. 24(2) of the Charter.

[18] In my February 2021 decision, I reviewed the test for admissibility established by the Supreme Court of Canada at para. 71 of Grant. I will not revisit the underlying principles again here, but simply move directly to weighing (i) the seriousness of the Charter-infringing conduct, (ii) the impact of the breach on the accused’s Charter-protected interests, and (iii) society’s interest in an adjudication on the merits.

(i) The seriousness of the Charter-infringing conduct

[19] In my February 2021 decision, I concluded that the Charter-infringing conduct fell on the more serious end of the spectrum. At paras. 76 and 77, I found that Officer Down deliberately searched for information he was not authorized to obtain and that he misrepresented what he had done when called to testify about the search in Barrie:

Officer Down took advantage of the authorization he was given to search Johnson’s cellphone for one purpose — to find evidence relating to drug offences — for a different purpose — to find evidence relevant to the Barrie shooting. In doing so, he also found information that might suggest that Johnson was involved in other crimes. I do not find that Officer Down acted in bad faith. He seems to have been motivated by a desire to help with other investigations. Through his conduct, however, Officer Down displayed a clear lack of understanding of what a search warrant for a cellphone entitles the police to do. He failed to use the tools available to him to tailor the search. He acted as though his search power was unrestricted. This is concerning given the broad range of deeply personal information that a cellphone may contain.

I have furthermore found that, in his testimony in the Barrie proceeding, Officer Down was not candid about his reasons for reviewing the web history information on the PDF. As noted by the Court of Appeal, “the integrity of the judicial system and the truth‑seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority”. [Footnotes omitted].

[20] Detective Fahey also erred by failing to seek a warrant for the cellphone data prior to organizing the photo lineups. He assumed that Officer Down’s search of Mr. Johnson’s phone was lawful without obtaining a copy of the CDSA warrant or asking any questions about what it allowed the police in Owen Sound or Ottawa to do.

[21] I found that the officers’ disregard for Mr. Johnson’s privacy rights did not necessarily reflect a widespread practice. I was more concerned by the implications of the assistant crown attorney’s advice in May 2019 and Detective Fahey’s further search of the phone data as a result of that advice. The 2019 violation of Mr. Johnson’s s. 8 rights was more suggestive of a systemic problem.

[22] In written argument on this application, the defence suggested that I again ought to take the state misconduct in 2019 into account for the purpose of determining whether the lineup evidence should be excluded. This argument is unfounded. There was by definition no causal connection between the advice given to Detective Fahey by the assistant Crown attorney in 2019 and the evidence obtained at the lineups almost two years earlier. The 2019 misconduct furthermore involved new and independent breaches of Mr. Johnson’s privacy rights through a further search of the cellphone data.

[23] The court therefore does not need to take steps to disassociate itself from the May 2019 misconduct in determining whether the lineup evidence should be excluded. A reasonably informed person would see the lack of temporal or rational connection between the breach of Mr. Johnson’s rights in 2017, which resulted in his identification as a possible suspect in the Carron robbery, and the further breach of his rights in 2019, which led police to find further incriminating evidence against him. The court has already disavowed the May 2019 misconduct by ruling that evidence obtained in 2019 is inadmissible.

[24] Having said this, the Charter-infringing conduct at issue is still moderately serious. Officer Down deliberately sought out and seized information unrelated to his investigation and then misrepresented what he had done to the court. Detective Fahey was careless in failing to verify that the information from Officer Down was lawfully obtained. The two officers’ disregard for the limits of their authority, whether deliberately or unconsciously, is troubling.

(ii) The impact of the breach on Mr. Johnson’s [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) interests

[25] The information seized and communicated by Officer Down to Detective Fahey — Mr. Johnson’s apparent interest in online news reports about open criminal investigations — is not deeply personal or sensitive. As noted at para. 85 of the February decision, however, the impact of the violation of Mr. Johnson’s rights “should be measured not only by what was unlawfully seized, but by what was unlawfully viewed”. Officer Down admitted that he reviewed, at least in a cursory way, the entire 2000-page print-out of Mr. Johnson’s cellphone data. As Justice Fish has observed, “[i]t is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer”: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 2. This holds true for cellphones as well, because of the nature, range and volume of data they now contain.

[26] The other, more tangible impact of the illegal search of Mr. Johnson’s phone and the discovery of its browser history is that it caused him to be identified as a suspect in the Carron robbery. The Crown argues that this is not a material consideration, because the information would have been discoverable in the absence of the s. 8 breach. If it is likely that evidence would have been discovered absent a violation of the accused’s Charter rights, the impact of the breach is less serious: see Grant, at para. 122.

[27] The Crown’s argument about discoverability is based on the evidence of Detective Sarah Frith at the hearing of this application and in the hearing of another s.8/24(2) application by Mr. Johnson in the context of the prosecution of charges arising from the Barrie shooting.

[28] Officer Frith was the lead investigator in the Barrie shooting, which took place on April 10, 2017. Mr. Johnson was identified as a suspect based on DNA evidence at the crime scene. Officer Frith learned that he had been detained by Owen Sound Police on other charges and that a cellphone had been seized when he was arrested. She got in touch with Officer Down to find out what had happened to it, and to find out about Mr. Johnson’s associates.

[29] As a result of this call, Officer Down learned that Mr. Johnson was a suspect in the Barrie shooting. It was this information that motivated him to review the phone’s browser history when he conducted his search, even though Officer Frith had not asked him to do so.

[30] Officer Down had a further conversation with Officer Frith after his search. When he told her about the browser history, she told him that she was seeking her own warrant or production order for the data on the phone. She testified that she did not ask him for a copy of the data he had downloaded because she knew that she did not have a right to review it without further judicial authorization. She also omitted mentioning Officer Down’s disclosure of the internet search history when she applied for a production order because she surmised, correctly, that he had not been authorized to search for information in relation to the Barrie shooting.

[31] On May 23, 2017, Officer Frith got a phone call from Detective Fahey. He told her that he had also received a call from Officer Down about the internet search history on Mr. Johnson’s phone. During their call, Detective Fahey told Officer Frith about his investigation of the Carron robbery.

[32] On May 24, 2017, Officer Frith obtained a production order for a copy of the data downloaded from Mr. Johnson’s cellphone by Owen Sound police. The order she obtained was significantly broader than Officer Down’s CDSA warrant. It authorized her to review outgoing calls made on the phone around April 10, 2017 as well as internet queries. When Officer Frith searched the data, she discovered the same browser history that Officer Down had found. She contacted local police in the relevant regions to ask about their investigations. She did not, however, get in touch with the Ottawa police about what she had found.

[33] Based on this evidence, the Crown urges me to infer that Detective Fahey would have learned about the browser history even in the absence of any violation of Mr. Johnson’s s. 8 rights by Officer Down. I should infer that, after conducting her lawful search, Officer Frith would have contacted Detective Fahey about the browser history just as she contacted other police forces. The only reason she did not do so is because she knew, based on her May 23 call with him, that Detective Fahey had already learned about the browser history from Officer Down.

[34] Mr. Johnson argues that I should not make this inference because, during her testimony on his application, Crown counsel did not directly ask Officer Frith whether she would have called to tell Detective Fahey about the browser history had they not already spoken on May 23. I do not think it was necessary to ask this hypothetical question. Officer Frith’s evidence on this issue was very clear. There was no suggestion, in her evidence, that she would have had any reason to avoid calling Detective Fahey. They in fact spoke again later in 2017 about their respective investigations.

[35] I accordingly infer that the information about Mr. Johnson’s cellphone would have been communicated to Detective Fahey in the absence of the breach of his rights by Officer Down. As a result, the Crown would have obtained the same evidence at the lineup without the illegal search.

[36] Mr. Johnson also contends that, if the browser history on his phone was discoverable through legal means, this makes Detective Fahey’s use of unlawfully obtained information particularly reprehensible. This presupposes that Detective Fahey knew that Officer Down was not authorized to search the browser history. As I have found, however, Detective Fahey did not realize this. He should have turned his mind to the ambit of the CDSA warrant, but he did not. As a result, this is not a situation where a police officer made a conscious decision to engage in an unlawful search (or benefit from the fruits of that search) even though there was another, lawful way to achieve the same end.

[37] I conclude that the second Grant factor weighs in favour of admitting the evidence. Although Officer Down’s cursory review of the entire data file from Mr. Johnson’s cellphone had an intangible impact on his dignity and privacy rights, the more consequential impact was the receipt by Detective Fahey of information that allowed him to identify Mr. Johnson as a suspect in the Carron robbery. I infer that Detective Fahey would have got this information lawfully from Officer Frith, but for its earlier communication by Officer Down.

(iii) Society’s interest in the adjudication of the case on the merits

[38] In this third part of the Grant analysis, I must consider “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”: Grant, at para. 79.

[39] Mr. Johnson argues that the admission of the lineup evidence will not enhance the truth-seeking function of the trial because neither Mrs. Carron nor Mr. St. Michael positively identified him as one of the robbers. Crown counsel says that I should not weigh the evidence for the purpose of the Grant analysis. He says that I should simply consider whether the lineups were conducted in a way that would safeguard against false or mistaken identifications.

[40] In my view, there is no reason why I would avoid taking the strength or weakness of the evidence into account. The objectively reliable nature of evidence is routinely considered to be relevant at this stage of the Grant test. Having sat through the entire trial, I am better positioned to assess the evidence from the lineup than a judge hearing a s. 24(2) application usually would be.

[41] The Crown concedes that Mrs. Carron did not positively identify Mr. Johnson at the first lineup. Mr. St. Michael’s identification of Mr. Johnson at the second lineup was also equivocal until he was pressed to give a “yes/no” answer by police. On the other hand, I am of the view that, if the evidence from the lineups is excluded, I would have to disregard all of Mrs. Carron’s statements to police at the first lineup. This would include her statement that she thought the shorter robber was not a “true Black”. Since I found Mrs. Carron to be a credible witness, this evidence is important to the truth-seeking function of the trial.

[42] I conclude that the third Grant factor weighs in favour of admitting the evidence.

Disposition

[43] Although the police misconduct in this case was moderately serious, the other two Grant factors weigh in favour of admitting the evidence pursuant to s. 24(2) of the Charter. The Crown has established that the browser history would have been disclosed to Detective Fahey in the absence of a breach of Mr. Johnson’s s. 8 rights. Although neither of the lineups yielded an unequivocal identification, they generated other evidence germane to a determination on the merits of the case.

[44] The application to exclude the evidence obtained through the 2017 photo lineups is therefore dismissed.

Justice Sally Gomery

Released: September 28, 2021

COURT FILE NO.: 17-R2037

DATE: 2021/09/27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

JAHMYLE JOHNSON and KYLE BANCROFT

Applicants

RULING ON ADMISSIBILITY OF PHOTO LINE-UP EVIDENCE

Justice Sally Gomery

Released: September 28, 2021

[^1]: In these reasons, I will refer to this phone as “Mr. Johnson’s cellphone” since he had it in his possession when he was arrested.