R. v. Boushehri, 2021 ONSC 8396

COURT FILE NO.: CR-19-90000129

DATE: 20211221

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

KOUROSH BOUSHEHRI

Amanda Webb for the Crown

Sayed Hafizi for the Accused

HEARD: December 9, 10, 13, 14, 15, 16, 17, 2021

G. ROBERTS J.:

1In the course of the cross-examination of the accused, two issues arose. In the interests of keeping the jury trial on track, I heard submissions and gave bottom line rulings, indicating that I would provide reasons at a later time. These are my reasons.

Could the Crown cross-examine Kourosh Boushehri about the amount, manner and timing of his social assistance payments in 2017?

2Before completing her cross-examination, the Crown sought direction, in the absence of the jury, about whether she could cross-examine Kourosh Boushehri on information she obtained about the amount, manner and timing of Mr. Boushehri’s social assistance payments in 2017. The Crown also put everyone on notice that, depending how the cross-examination went, she might also be seeking to tender reply evidence.

3Defence counsel objected to the proposed cross-examination on the basis that the information in question was obtained by police in violation of Mr. Boushehri’s right to privacy, protected by s.8 of the Charter.

4I permitted defence counsel to bring a s.8 application. After giving counsel as much time as possible to prepare, given that we were in mid-cross-examination in front of a jury, I heard submissions from both counsel in relation to the s.8 application. While defence counsel wanted more time, I note that defence counsel was uniquely positioned to anticipate this issue. He alone knew, or was in a position to know, what Mr. Boushehri would testify to. I think it was entirely predictable that the Crown would seek to check details of Mr. Boushehri’s account and cross-examine on them.

Background facts

5Mr. Boushehri testified that he did not remember what he did on November 8 and 9, 2017. They were ordinary days for him, and he could not recall what happened on them. He only knew that he did not possess or sell drugs. However, he did remember December 11, 2017, because he was arrested that day. He testified that he got up that morning and cashed his welfare cheque. He then planned to buy a track suit for himself, some shoes for his sister, and get a plan for the cell phone he bought from a panhandler a few days earlier outside a Walmart store. He realized that he forgot the phone so returned home and his mother cooked him some breakfast. He then walked to the mall, at which time he was arrested.

6In cross-examination, Mr. Boushehri explained that in 2017, he was not working or going to school, and was collecting welfare. He received $720 each month. He received his welfare payments by cheque, which he would manually cash at a bank, either by approaching a teller or using a bank machine. He was familiar with a welfare “payment card” but he was not using a payment card at the time. Nor was he receiving his welfare payments by direct deposit. Rather he would show his identification and cash his welfare cheque. On the morning of December 11, 2017, he cashed his welfare cheque with a teller at the Toronto Dominion bank, where he banked. While he always received his payment by cheque, he received his cheques at uneven intervals, depending on whether he kept his appointments with someone in social services.

7Before completing her cross-examination, the Crown sought direction on whether she could cross-examine Mr. Boushehri on information she received that Mr. Boushehri did not receive his social assistance payments by cheque. The Crown provided defence counsel and me with a Law Enforcement Request, pursuant to s.32(g) of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), for the “history of welfare involvement and amount received and method of receipt of funds for Kourosh Bousherie DPB 1997/09/27 in 2017.” The preliminary report DC Weckler received in response indicated that Mr. Boushehri did not receive his social assistance payments by way of cheque.

The legal framework

8The Supreme Court has clarified that the basic interpretive structure of s.8 involves two stages. First, an applicant must show, on a balance of probabilities, that the state conducted a search or seizure which invaded their reasonable expectation of privacy in the subject matter of the search or seizure. If the first stage is established, the analysis moves to the second stage, involving an assessment of whether the search or seizure was reasonable. The constitutional standard is prior judicial authorization on reasonable grounds; a search pursuant to this standard is presumed to be reasonable, and the applicant bears the onus to show it was not. However, a warrantless search falls below the expected constitutional standard, and the Crown bears the onus to show that the search was reasonable. The must also be conducted in a reasonable manner.

9In R. v. Orlandis-Habsburgo, 2017 ONCA 649 at paras.39-47, Justice Doherty summarized the approach to the first stage of the analysis in the context of informational privacy:

When deciding whether state conduct amounts to a search or seizure, the focus is not so much on the nature of the state conduct as it is on the impact of the state conduct on the privacy interests of the s. 8 claimant. State conduct that, in the totality of the circumstances, infringes a claimant’s reasonable expectation of privacy will be treated as a search or seizure for the purposes of s. 8 [citations omitted]….

[The reasonable expectation of privacy inquiry is factual and context specific]. However, the court, in determining whether the claimant has demonstrated a reasonable expectation of privacy, is not engaged in a factual inquiry in the usual sense. The court must, in examining the relevant facts, make a determination that is not purely fact-driven, but is also reflective of fundamental societal values. A finding that a claimant has a reasonable expectation of privacy is not only a description of a specific constellation of factual considerations, but is also a declaration of societal aspirations and values [citations omitted]….

The value Canadian society places on the individual’s right to be left alone by the state, absent state justification for any intrusion, lies at the heart of the normative inquiry required by s. 8. Personal privacy is crucial, both to individual freedom and security and to the maintenance of a dynamic and healthy democracy. If a court holds that an individual has a reasonable expectation of privacy in a certain place, thing or information, the court is declaring that community values will not accept that the state should be allowed to intrude upon individual privacy in the way that it did without first establishing compliance with the reasonableness standard in s. 8 of the Charter [citations omitted]….Professor Stewart captures the inquiry well:

Put another way, the ultimate normative question is whether, in light of the impact of an investigative technique on privacy interests, it is right that the state should be able to use that technique without any legal authorization or judicial supervision. Does our conception of the proper relationship between the investigative branches of the state and the individual permit this technique without specific legal authorization?

10Justice Doherty went on to consider the factors set out in R v. Spencer, 2014 SCC 43 at para. 18 as relevant to the reasonable expectation of privacy inquiry. Paragraph 18 of Spencer provides:

The wide variety and number of factors that may be considered in assessing the reasonable expectation of privacy can be grouped under four main headings for analytical convenience: (1) the subject matter of the alleged search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.

11More recently, in R. v Chaudhry, 2021 ONSC 394, Justice Dambrot elaborated on the relevant factors in assessing a claim for informational privacy in the context of Beck taxi providing police information about the accused’s taxi usage.

12R. v. Lattif, 2015 ONSC 1580 is also helpful. In that case, which Justice Nordheimer found no reasonable expectation of privacy in information that the accused received social services, and nothing to preclude the police relying on s.32(g) of the MFIPPA in order to obtain contact information the accused provided in relation to his receipt of social services.

Analysis

(1) the subject matter of the alleged search

13Justice Doherty notes that when defining the subject matter of a search where the s.8 claim relates to informational privacy, “one must look to the connection between the impugned investigative technique and the privacy interests at stake”.

14In this case, the subject matter of the alleged search is information about the manner (cheque, direct deposit or payment card) amount, and time that Mr. Boushehri received his social security payments in 2017.

15Information about the amount, manner, and timing of Mr. Boushehri’s social security payments reveals little if anything about Mr. Boushehri; certainly not intimate details of lifestyle and personal choices. It lies far from the “biographical core of personal information” at the centre of what s.8 protects: R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 SCR 281 at p.293. The information is very different from the nature and content of Mr. Spencer’s internet usage considered in Spencer.

(2) the claimant’s interest in the subject matter

16Justice Doherty notes that “Informational privacy is closely tied to the right to control access to, and the use of, information. At its most vigorous, informational privacy is a claim to confidentiality in, and/or exclusive use of, information [citations omitted]”: Orlandis-Hapsburgo, at para.77.

17The information at issue here, information about the manner, amount and timing of social security payments, is regulated by the Municipal Freedom of Information and Protection of Privacy Act. The MFIPPA both protects the privacy of the information at issue here, and regulates how it may be disclosed. In particular, s.32(g), falling within a section titled “Where disclosure permitted”, provides:

An institution shall not disclose personal information in its custody or under its control except,

(g) to an institution or a law enforcement agency in Canada if,

(i) the disclosure is to aid in an investigation undertaken by the institution or the agency with a view to a law enforcement proceeding, or

(ii) there is a reasonable basis to believe that an offence may have been committed and the disclosure is to enable the institution or the agency to determine whether to conduct such an investigation;

18It follows that Mr. Boushehri does not control the access to, and the use of, information about social security payments made to him.

(3) the claimant’s subjective expectation of privacy in the subject matter

19A subjective expectation of privacy is “neither a prerequisite to, not determinative of, the existence of a reasonable expectation of privacy”: Orlandis, para.82. Nonetheless is a relevant aspect of the totality of circumstances.

20Mr. Boushehri did not testify on the s.8 application or provide any information or evidence about his subjective expectation of privacy in how and when he was receiving his social security payments.

(4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstance

21Justice Doherty explains that this step is not so much a separate factor as a cumulative assessment of all the relevant considerations through a reasonableness lens:

A consideration of the reasonableness of the subjective expectation of privacy does not address separate factors relevant to a privacy claim, but instead examines all factors through the reasonableness lens. The court looks at the claimant’s subjective expectation of privacy in light of other factors, including the nature of the information in issue, the nature of the relationship between the service provider and the customer, and the applicable statutory and regulatory landscape. The court then decides whether the claimant’s expectation is objectively reasonable having regard to those circumstances”: Orlandis, para.83.

22In this case, at the end of the court day on December 14, after hearing Mr. Boushehri testify in examination in chief, DC Wecker made a request to the City of Toronto for information about the manner and timing of Mr. Boushehri’s social security payment in 2017. The request set out the police “GO” investigation number and noted that the information requested was “to aid an investigation undertaken by the TPS (Law Enforcement Institution) with a view to a law enforcement proceeding…”.

23The specific request in this case strikes me as exactly the sort of situation contemplated by s.32(g) of the MFIPPA. It permitted the holder of the information to make an independent and informed decision whether to exercise its discretion pursuant to s.32(g) and release the information requested.

24When I consider all the factors set out in Spencer, cumulatively and through a reasonableness lens, I do not think the community should expect privacy in information about the amount, manner of payment, and timing of social security payments where this information is relevant to a law enforcement investigation.

25It follows that I find no violation of s.8 of the Charter, and there is no bar on the Crown putting the information she learned about the amount, manner of payment and timing of Mr. Boushehri’s payments to him in cross-examination.

s.24(2) of the Charter

26If I am wrong, and Mr. Boushehri did have a reasonable expectation of privacy in information provided about the amount, manner of payment, and timing of his social security payments, I do not believe that the MFIPPA provided authority to conduct a search or seizure: Spencer, at paras.71-73; Orlandis-Habsburgo, para.118. Thus it would follow that s.8 was breached.

27However, I would admit the information pursuant to s.24(2). I recognize that my conclusion on s.24(2) would not be entitled to deference, nonetheless I wish to make a number of findings.

28First, with respect to the seriousness of the state misconduct, I find it lies entirely at the reasonable, innocent mistake end of the continuum. Mr. Boushehri provided a specific explanation for the $605 he was found with on arrest for the first time in examination in chief. The police sought to investigate this explanation using accepted norms or standards for obtaining information governed by the MFIPPA. Specifically, they made a written “Law Enforcement Request for Personal Information” pursuant to s.32(g) of the MFIPPA. The request is specific and tailored, asking only for records in 2017. If they were wrong about the application of MFIPPA in the circumstances, so was Justice Nordheimer, and so was I.

29Second, with respect to the impact on the accused, if the accused did have a reasonable expectation of privacy in information about the manner and timing of his social security payments, it lay far from the core of what s.8 protects. What was disclosed was minimal and tailored to what was necessary to test his evidence. Further, the information was relevant and inevitably discoverable in the sense that any judge would have granted a production order to obtain it.

30Finally, I believe that it was manifestly in the interests of justice to allow the Crown to cross-examine Mr. Boushehri on the information about the amount, manner of payment, and timing of his social security payments. Cross-examination lies at the heart of our adversarial process; it is “the greatest legal engine ever invented for the discovery of truth”: 3 Wigmore, Evidence §1367, p. 27 (2d ed. 1923). The information was reliable. Permitting the Crown to put it to Mr. Boushehri enhanced the truth-seeking function of the trial.

31In conclusion, all three strands of the s.24(2) inquiry weigh in favour of permitting the admission of information about the manner and timing of Mr. Boushehri’s social security payments.

Could the Crown lead the information obtained about social assistance payments to Mr. Boushehri in 2017 in reply?

32The Crown put the information it obtained about Mr. Boushehri’s social assistance payments to Mr. Boushehri in cross-examination. Mr. Boushehri maintained that he received his social assistance payment for December 2017 by way of cheque, and did not receive payment by way of direct deposit. In light of this, the Crown sought to call Lisa Farun, Manager of Program Support, Client Services and Issues Management Unit, Toronto Employment and Social Services about how Mr. Boushehri received his social security payments and when. Defence counsel objected.

33I ruled that the Crown could lead evidence from Lisa Farun about the amounts and nature of social assistance payments to Mr. Boushehri in 2017.

34The test for reply evidence is well-established:

1. New evidence arises in the defence case.

2. The prosecution could not have foreseen the evidence or the issue to which the new evidence relates.

3. They reply evidence must be relevant to an integral and essential issue apart from credibility. If it is relevant only to credibility, it is barred by the collateral fact rule: Aalders, 1993 CanLII 99 (SCC), 1993 2 SCR 482; R. v. Col, 2010 ONSC 2755 per Code, upheld 2012 ONCA 752.

4. Would the admission of the reply evidence cause unfairness, considering both the accused and the trial process.

35First, defence counsel did not dispute that new evidence arose in the course of the defence case. I agree. Mr. Boushehri testified that he was carrying $605 when he was arrested because he just cashed his social assistance cheque with a teller at the TD bank. He elaborated that one of the reasons he struggled when he was “tackled” in the parking lot of the mall was because he thought someone might have seen him cash his cheque and was trying to take his money. None of this was part of the case in chief or disclosure.

36Second, defence counsel did dispute that the second step of the test had been met, arguing that the Crown could have predicted the new evidence. I disagree. I do not think that the Crown could have foreseen that Mr. Boushehri would testify that the $605 dollars Mr. Boushehri had in his possession when he was arrested came from a welfare cheque that he just cashed. Or that this was the reason he struggled with police when they tried to arrest him.

37Third, defence counsel does not dispute that the third step is met. I agree. The source of the $605 dollars Mr. Boushehri had on arrest is the essential issue on count 5, possession of property or proceeds of property obtained as a result of the commission of an indictable offence.

38Finally, defence counsel argued that it would be unfair to Mr. Boushehri to permit the Crown to call the reply evidence. I disagree. Mr. Boushehri testified that he had a good memory of December 11, 2017, because of the arrest. His evidence about cashing the welfare cheque shortly before being arrested was specific and detailed, including the bank where he went and the fact that he went to the teller, and provided identification to cash the cheque, rather than simply using a bank machine. I do not think admitting evidence that is directly responsive to this very specific evidence is unfair to the accused.

39At the same time, I believe it was in the interests of justice to admit the reply evidence. It was reliable. Its admission enhanced the truth-seeking function of the trial.

40In all the circumstances of the case I am satisfied that the test for the admission of reply evidence had been met.