COURT FILE NO.: CR-19-90000164-0000
DATE: 20211221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
WAYNE BLACKWOOD
Accused
Amanda Webb, Counsel for the Crown
Nate Jackson, Counsel for the Applicant Accused
HEARD: November 15 and 16, 2021
M.A. CODE J.
Reasons for judgement on a s. 8 charter motion
A. OVERVIEW
[1] The Applicant Wayne Blackwood (hereinafter Blackwood) was charged with trafficking fentanyl and possession of proceeds of crime. These charges resulted from an undercover police purchase of fentanyl on November 10, 2017. After considerable delay, the case came on for trial in this Court on November 15, 2021.
[2] On the first day of trial, defence counsel advised that there was a s. 8 Charter Motion seeking to exclude substantial and essential evidence relied on by the Crown to prove its case. There was no mention of any such issue in the Form 18 Report to the Trial Judge, after the judicial pre-trial. In addition, no motion materials appeared to have been filed and I was unaware of any such motion. I was advised by counsel that this new s. 8 Motion had been discussed at a further judicial pre-trial that was held one month prior to trial, and that motion materials had been exchanged electronically. At this point, I was provided with hard copies of the motion materials and they were marked as Exhibits 2, 3, 4, and 5.
[3] I proceeded to hear the s. 8 Motion during the first two days of trial. At the end of oral argument, on November 16, 2021, I dismissed the Motion in brief oral Reasons, with written Reasons to follow. The jury was selected on the next day, the Crown called its case over two days, and closing arguments and the Charge to the Jury concluded on November 24, 2017. The jury deliberated for about six hours and returned that same day with verdicts of guilty on both counts.
[4] These are my written Reasons for dismissing the s. 8 Charter motion. In brief summary, the Motion seeks to exclude drugs, money, and cell phones seized or obtained by the police both prior to arrest and incident to the arrests of Blackwood and his co-accused Gregory Green. Without this evidence, the Crown would have no case. There is no question that all this evidence was lawfully seized and obtained by the police, just prior to the arrests and during the arrests, without a hint of any Charter violation. The s. 8 Motion is based on what happened afterwards, when the police officers returned to the police station. Blackwood had been arrested at the same time as his co-accused Green and they were both in custody at the police station by this point. The investigating officers, who were all working undercover, held a “de-brief” meeting and processed the seized items as exhibits for trial. The supervisor of the undercover team of officers, Detective John Margetson, carried out a brief examination of a cell phone seized from the co-accused Green. It is this warrantless search of the now former co-accused’s cell phone, at the police station and shortly after the arrests, that is the subject of the s. 8 Charter Motion. The defence submits that it is such a serious Charter violation that it should retrospectively lead to the s.24(2) exclusion of all the previously lawfully obtained evidence.
B. FACTS
[5] Detective Margetson was the only witness called on the s. 8 Charter Motion. In addition, the parties agreed that their summary of the background facts relating to the investigation, set out in the Notice of Application (Exhibit 2) and in the Crown’s responding Factum (Exhibit 4), was essentially an Agreed Statement of Fact concerning the evidence anticipated at trial. Those two documents summarize the Crown’s evidence relating to the events that led up to the arrests of Blackwood and Green. Det. Margetson testified about the warrantless search of Green’s seized cell phone that took place at the police station, after the arrests.
[6] The investigation had commenced on November 8, 2017 when a Toronto Drug Squad officer, acting in an undercover capacity, purchased crystal methamphetamine from the co-accused Green. Two days later, on November 10, 2017, the same undercover officer contacted Green for a second time. In an exchange of text messages, which were preserved for trial in screenshots of the texts, Green agreed to supply the undercover officer with both crystal methamphetamine and heroin. The undercover officer and Green then met at 10:06 p.m. in a car driven by the officer. A sale of 2.4 grams of methamphetamine was completed and the officer paid Green with $200 in police “buy money”. The serial numbers and denominations of the “buy money” had previously been photocopied by the police on a “control sheet”.
[7] Green advised the undercover officer that he did not have the heroin and that he needed to obtain it from his supplier. He also advised that it would contain fentanyl. Over the ensuing one hour and twenty minutes, Green directed the undercover officer to drive to two separate locations in order to meet with his supplier and consummate this further agreed upon sale of heroin mixed with fentanyl. The supplier was not at the first location. After Green made an angry phone call, and after he made and sent a number of further texts and phone calls, Green directed the undercover officer to the second location. The officer drove to this location and parked opposite a Tim Hortons on York Street, just to the north of the Royal York Hotel. Green told the officer to wait, that he was going “to get product”, and that they “may need to give his supplier a ride to Queen Street.” Green then exited the car. Det. Margetson, the team supervisor, was listening to these conversations on a one-way police radio in order to ensure officer safety.
[8] Undercover surveillance officers observed Green exit the car and walk to the Tim Hortons where he waited. A short time later, the Applicant Blackwood arrived and entered the Tim Hortons. He walked quickly in the direction of the washroom, while nodding his head towards the washroom. He was followed by Green. The two men entered the washroom and remained there for two or three minutes. They exited the washroom together and walked towards the Tim Hortons’ entrance on York Street where they exited the premises. The two men crossed York Street and got into the parked undercover vehicle. Green was in the front passenger seat and Blackwood was in the rear passenger side seat.
[9] Once they were seated in the car, Green handed the undercover officer a packet containing .89 grams of fentanyl. It was now 11:28 p.m. At this point, the surveillance officers moved in and arrested both Green and Blackwood. Both were searched incident to arrest. The police seized a second packet of fentanyl weighing .95 grams and a Samsung cell phone from Green’s pockets. The police seized $904 and two Apple iPhones from Blackwood’s pockets. Included in the $904 seized from Blackwood was the $200 in police “buy money” that the undercover officer had paid to Green, shortly after 10:06 p.m. that night, when the officer purchased crystal methamphetamine from Green.
[10] I should note that the acts and utterances made by Green, that are summarized in the previous four paragraphs, all became the subject of careful instructions to the jury at trial pursuant to the common purpose or co-conspirators exception to the hearsay rule. See: R. v. Carter (1982), 1982 CanLII 35 (SCC), 67 C.C.C. (2d) 568 (S.C.C.).
[11] After the two accused were arrested, the officers returned to 51 Division station, which the Drug Squad undercover team was using as their base for the present case. The events that ensued at the station were the subject of Det. Margetson’s testimony on the s. 8 Motion. He has been a Toronto police officer for 30 years and is now retired. He had worked with the Drug Squad for 10 years. He was nearby and had called for the arrests to be made at 11:28 p.m. on the night in question. At 11:55 p.m. the two accused were in the booking hall at 51 Division and they were taken to the cells. There was no suggestion of any s. 10(b) Charter violation. At 12:30 a.m., the undercover team met for a “de-brief” at the station. At this meeting, the various seized exhibits were placed on a desk or table. The unspent “buy money” was returned to Det. Margetson by the undercover officer. The money seized from Blackwood was compared to the “control sheet” photocopy of the denominations and serial numbers of police “buy money” that had previously been issued to the undercover officer and spent on the purchase of crystal methamphetamine. It was determined that $200 of the $904 seized from Blackwood was this police “buy money”.
[12] It was at this point, at 12:55 a.m., that Det. Margetson turned his attention to the three cell phones that had been seized. I intend to set out this testimony in some detail. It is the subject of the s. 8 Motion. It was also the subject of a subsequent “mistrial” Motion. The “mistrial” Motion was brought by Mr. Jackson, in part, on the basis of the manner in which I allegedly asked certain questions during Det. Margetson’s examination-in-chief.
[13] Det. Margetson testified that the seized cell phones were on a desk in the “de-brief” meeting room, together with all the other seized evidence that was being processed as exhibits for trial. He was advised that the Samsung phone had been seized from Green and that an iPhone had been seized from Blackwood. According to Det. Margetson, it is normal practice to “prove” the identity of the phone and phone number that the undercover officer had been contacting and so the undercover officer rang the number. The Samsung phone seized from Green rang. The iPhone seized from Blackwood was locked and the police did not know Blackwood’s phone number. Accordingly, Det. Margetson took Green’s Samsung phone, which was unlocked, and looked through the call log function. The police believed that Green had been calling and texting with his supplier that evening and they believed that Blackwood was the supplier. Det. Margetson testified that the only way to “prove” the number of the phone seized from Blackwood was to go into Green’s phone and then make a call to the number that Green had been calling and texting prior to his arrest. Det. Margetson believed that there was some urgency in carrying out these investigative steps because the telephone service for the seized phones could be terminated at any time.
[14] Det. Margetson testified that the first step he took, in order to obtain the phone number that Green had recently called, was to search through the Samsung phone’s call logs. He then checked the message app on the phone, to make sure that the number he found in the call logs was the same number that Green had been texting prior to the arrests. Once he had confirmed the number, Det. Margetson had another officer make a call to that number. The other officer, D.C. Wilson, used Green’s seized Samsung phone in order to make this call. The iPhone seized from Blackwood rang. The names associated with the two phone numbers also came up on the screens of the two phones, as the call was being made. “G.T.” was the name associated with Green and “Ty” was the name associated with Blackwood.
[15] At this point in Det. Margetson’s evidence, I asked whether this investigative exercise of “proving” the two phones was the reason or purpose for the search of Green’s Samsung phone. Det. Margetson replied that “there was more to” his purpose than simply “proving” the numbers of the two phones. He proceeded to provide a lengthy answer, to the effect that he believed there likely was a larger “stash” of fentanyl and he was trying to find it. He testified that heroin mixed with fentanyl is a “dangerous drug”. He found it odd that Blackwood had arrived at the meeting with Green, apparently carrying only two small amounts of fentanyl. He assumed there was a larger “stash” of the drugs somewhere nearby, either in a car or in premises of some kind, and that Blackwood had brought the two small packets of fentanyl from that “stash”. He hoped that by looking at the text messages he could find some evidence indicating the location of the “stash”. He knew that Blackwood had been moving between at least two different locations that evening and it was logical to believe that he had a “stash”. Det. Margetson also testified that “time was of the essence” because drugs in a “stash” could be moved. He was relying on the Criminal Code s. 487.11 “exigent circumstances” power to search and on the common law power set out by the Supreme Court of Canada in the Fearon decision. He tried to keep the “parameters” of the search “tight” by just looking at the recent immediate texts from that same day. He found nothing indicating where a “stash” might be located, such as a reference to a car or a house. A subsequent search warrant was obtained for a more thorough “extraction” of data from the phone. He documented his warrantless search of the phone by making notes and taking screenshots of the information that he obtained.
[16] While Det. Margetson was giving the above lengthy answer, I would interject and summarize each part of his answer, effectively repeating it based on my notes, in order to ensure that I understood the evidence and to confirm the accuracy of my notes. At the end of the above lengthy answer to my original question, I confirmed my understanding that the purpose of the search was not simply to “prove” the numbers of the phones but was to look for evidence of a possible “stash”. Det. Margetson agreed.
[17] Crown counsel then asked Det. Margetson to describe his understanding of the Supreme Court’s Fearon decision. Det. Margetson testified that the decision held, according to his understanding, that a search warrant is required in order to search a cell phone. However, it allowed an exception where the phone is unlocked, where it is searched incident to arrest, where there is a nexus between the search and the arrest, and where there are some exigent circumstances. He testified that the scope of the search must be limited, that is, you cannot search in parts of the phone that are unrelated to the legitimate arrest-related purpose. Finally, he testified that the warrantless search must be documented.
[18] Once again, after Det. Margetson had given the above answer concerning his understanding of the Fearon decision, I summarized my note of his evidence and asked if it was accurate. Det. Margetson agreed with my brief summary.
[19] Crown counsel then asked if there was any subsequent change in the law, after the November 10, 2017 events in this case. Det. Margetson replied that there was a change shortly afterwards when the Supreme Court of Canada released its decision in Marakah in December 2017. He understood that Marakah related to searches of third party text messages in a seized cell phone. It changed the law relating to third party standing by reversing the previous Ontario Court of Appeal decision on this issue, according to Det. Margetson.
[20] At this point, I asked Det. Margetson whether he understood that his search of Green’s phone had to comply with Green’s Charter rights, as set out in Fearon, regardless of the law relating to third party standing. Det. Margetson replied that he did understand this point. He went on to explain that this is why he took the steps that he previously described, such as making notes of the scope of the search, photographing the search, and noting the time.
[21] Crown counsel then asked Det. Margetson to describe the circumstances in which he would subsequently search cell phones, incident to arrest, as a result of the change in the law of standing brought about by Marakah. He testified that he would still search a cell phone seized on arrest, provided he could bring the search “within the parameters of Fearon”. He gave examples of two subsequent cases where he did this, even though he was unsure or did not know whether third party information might emerge from the search of the seized cell phone.
[22] At this point, I suggested to Det. Margetson that “it was pretty clear” in the present case that he was looking for third party information, namely, “communications with Blackwood that would help you find his stash”. Det. Margetson agreed with this suggestion. The examination-in-chief ended, at this point.
[23] In cross-examination, defence counsel brought out Det. Margetson’s ongoing work as a teacher of policing courses at Humber College and Centennial College. In his classes he teaches the power to search incident to arrest, including searches of electronic devices, and he refers to cases like Fearon and Marakah.
[24] Det. Margetson agreed, in cross-examination, that Green was the initial target of the investigation on November 8, 2017. It was only on November 10, 2017 that the police learned of Green’s supplier and he then became a further target of the investigation. There were no other targets, although the police were always interested in finding the “stash”. Det. Margetson reiterated his evidence in-chief to the effect that his initial object in searching Green’s cell phone was to “prove” Blackwood’s phone number but that he was also looking at the text messages in order to find out how Blackwood got to the scene and the location of any further drugs.
[25] Det. Margetson testified, in cross-examination, that he was trying to keep the search “narrow” by only looking at recent text messages from that same day. However, he acknowledged that when scrolling through texts there is sometimes an ongoing conversation that extends back into the previous days, and even the previous months, and that he may have seen this kind of ongoing text message conversation in this case. He also acknowledged that when scrolling through call logs, they can extend back into earlier days. In his efforts to document everything, he photographed his search of the texts but he may not have photographed his search of the call logs.
[26] In terms of Det. Margetson’s assessment of the “exigent circumstances” that existed in this case, he testified initially in answer to a question from me during cross-examination, that seizing dangerous drugs before they disappear was one such circumstance. In addition, “proving” Blackwood’s phone by learning his phone number, and confirming the fact that Green and Blackwood were communicating, were also “exigent circumstances” because the seized phone’s account could be in a false name and it could be closed at any point after the arrests. Finally, in answer to defence counsel’s follow-up questions, Det. Margetson testified that he was interested in finding out whether Blackwood was merely a courier or whether he was the “back end” supplier. The police already had sufficient evidence to prove the offences charged, according to Det. Margetson, and he was looking for evidence of the “stash”. He agreed that no one was in any danger and there was no information suggesting that someone else was involved. However, the fact that Blackwood only brought the amount of drugs required to complete the agreed upon deal meant one of two things to Det. Margetson: either Blackwood was a mere “runner” and someone else was involved; or else Blackwood had a larger “stash” that he was keeping in another location. This was also what Det. Margetson was trying to determine by “proving” the number of Blackwood’s phone. He believed that Green would not have been calling a mere “runner” but would likely have been calling his supplier.
[27] In conclusion, Det. Margetson testified that he believed the warrantless search of Green’s phone was lawful. He would not do anything differently except he would photograph the search of Green’s call logs. In terms of his belief that he acted lawfully, he acknowledged that assessing “exigent circumstances” is difficult and can be somewhat subjective. He also believed that it was lawful to use Green’s phone to make the call “proving” Blackwood’s phone number. He and his team have done this a number of times. For example, when a fentanyl user has overdosed and died or is in a coma, his team will take the overdose victim’s phone and call the suspected dealer because time is of the essence and he believes that these are “exigent circumstances”. He was unsure whether this practice may now be problematic, in light of the decision in Marakah. He agreed that a full forensic search of the phone with a warrant can lead to the extraction of call logs and this may reveal a particular phone number being called at the time. However, actually calling the number at the time of arrest is the best evidence, in Det. Margetson’s view.
C. ANALYSIS
(i) The procedural history of the s. 8 Motion
[28] The procedural history of the s. 8 Motion is important because the positions taken by both parties have changed or evolved over time.
[29] Beginning with the Crown, the Crown’s Factum responding to the s. 8 Motion is dated November 9, 2021. This was six days before the first day of trial. The Crown conceded a s. 8 violation in the following terms (at paras. 4 and 14):
The Respondent concedes a section 8 breach as it relates to the initial unwarranted search of Mr. Green’s phone.
The Respondent concedes that the search of Mr. Green’s phone by Detective Margetson at the station violated the Applicant’s section 8 rights.
The Factum then proceeded to argue that neither of the two branches of s. 24(2) of the Charter – “obtained in a manner” and “bring the administration of justice into disrepute” – were met in this case.
[30] When the s. 8 Motion commenced, Crown counsel stated on the record that she was not tendering any evidence obtained from the searches of the seized cell phones. In particular, the text messages and call logs viewed by Det. Margetson in the initial warrantless search of Mr. Green’s phone, and then subsequently extracted by the Tech Crimes Unit pursuant to a search warrant, were not being tendered by the Crown. However, Crown counsel also made it clear that she was not taking this position because of any breach of Blackwood’s s. 8 Charter rights. There were other factors that led the Crown to take this position. Finally, Crown counsel made it clear that she was only conceding that the warrantless search of the phone by Det. Margetson violated s. 8 and not the subsequent Tech Crimes Unit search with a warrant.
[31] After Det. Margetson had completed his testimony on the first day of the Motion, and before adjourning for the day, I asked the Crown to clarify the fact that a s. 8 Charter breach was being conceded but the Crown’s decision not to tender the text messages and call logs seized from Green’s cell phone was not due to that conceded s. 8 violation. In particular, I asked the Crown to clarify its position as to whether Det. Margetson did or did not comply with Fearon, when he searched the call logs and text messages in Green’s phone, leaving aside the impact of Marakah on the use of Green’s phone to “prove” Blackwood’s phone. The Crown stated that she had not been aware of Det. Margetson’s evidence concerning compliance with Fearon. She had not anticipated this testimony when she prepared her Factum on the s. 8 Motion. She asked to have time to review the Fearon decision overnight, as she had not read it when drafting the Crown’s Factum. She would state her position the next morning, after she had taken the time to consider Fearon. She also clarified that there were several reasons why she was not tendering the forensic extraction evidence from the Tech Crimes Unit search with a warrant: first, certain issues of proof would arise relating to this forensic extraction evidence, if the Tech Crimes Unit expert was to testify at trial; second, there were trial economy issues; and third, she had also considered whether this evidence was necessary in order to prove the Crown’s case.
[32] The next morning, at the beginning of her closing argument on the Motion, Crown counsel advised that her earlier concession of a s. 8 Charter violation had been based on an erroneous view of the law. She now took the position that Det. Margetson had complied with Fearon. I will set out this submission in more detail in the next section of these Reasons, as it became an important aspect of defence counsel’s “mistrial” Motion. However, it is apparent that the Crown significantly changed its position concerning the s. 8 stage of analysis on the second day of the Motion.
[33] Turning to the position taken by the defence, I have already pointed out that the s. 8 Charter issue was never raised by counsel who was acting for Blackwood at the JPT (not Mr. Jackson) and it was not mentioned on the Form 18 Report to the Trial Judge. The original Notice of Application relating to the s. 8 Motion was dated October 18, 2021, less than a month before the trial date. It stated (at paras. 2, 6, and 28) that “the Crown seeks to rely on call logs and a text message conversation between the Applicant and Mr. Green extracted from Mr. Green’s phone … The Applicant seeks the exclusion of the text conversation and call logs extracted from Mr. Green’s phone as well as the money seized from the Applicant incident to arrest … The Applicant applies under s. 24(2) of the Charter for the exclusion of the text message conversation and call logs … and the money seized from his person.” The prayer for relief at the end of the Notice of Application (at para. 36) repeated these assertions, namely, that it was “the text message conversation and call logs extracted from Mr. Green’s phone and the money seized by police incident to the Applicant’s arrest” that the Applicant sought to have excluded as a remedy for the alleged s. 8 violation [Emphasis added].
[34] The Crown’s eventual decision not to tender the text messages and call logs extracted from Green’s phone meant that most of the above “relief sought” in the original Notice of Application was no longer in issue. The seized money became the only matter in dispute. As noted above, the Crown filed its Factum conceding the s. 8 violation on November 9, 2021. The next day, November 10, 2021, the defence filed a Supplemental Notice of Application. It was now five days before the trial was to commence. In this Supplemental Notice, the Applicant referred to the Crown’s concession of a s. 8 violation and noted the Crown’s decision not to tender the evidence seized from the searches of the cell phone at trial. Most significantly, the Applicant now sought to expand its Charter Motion to include exclusion of the drugs seized by the police. This would effectively put an end to the prosecution. The Supplemental Notice stated the following in this regard (at paras. 3 and 5):
In the Oct 18, 2021 Notice, the Applicant advised that he is seeking the exclusion of “all evidence seized.” However, the Applicant only particularized the money and cell phone material as the evidence obtained in an unconstitutional manner subject to exclusion under s. 24(2) of the Charter. The Applicant now files this additional Notice to advise the Court and Crown in writing that he also seeks to exclude the 0.75 grams of fentanyl provided to police by the former co-accused during the undercover buy that immediately preceded the takedown. Likewise, the Applicant also seeks to exclude the 0.88 grams of fentanyl located on the former co-accused incident to his arrest.
The Crown has conceded that the police violated the Applicant’s s. 8 Charter rights when they searched the former co-accused’s cell phone without a warrant, viewed conversations with the Applicant, and actually used the phone to call the Applicant’s. Indeed, the Crown is no longer seeking to admit any cell phone evidence in this case. The Crown does, however, argue that the money seized from the Applicant was not “obtained in [a] manner” sufficiently connected to the breach. The Applicant disagrees and submits the drugs and money were obtained in close connection with the serious Charter-Infringing police conduct. That evidence must be excluded pursuant to s. 24(2) lest its admission bring the administration of justice into disrepute [Emphasis added].
The prayer for relief (at para. 11) now sought the exclusion of “the text message conversation and call logs … the money seized … and the illegal drugs seized immediately before and after the police takedown” [Emphasis added].
[35] I have carefully read and re-read the original Notice of Application. Nowhere does it state that “the Applicant advised that he is seeking the exclusion of ‘all evidence seized’”, contrary to the above-quoted and underlined assertion in the Supplemental Notice of Application. The Applicant’s twice-repeated position (set out at paras. 6 and 20 of the Notice of Application) was that “all evidence seized on November 10, 2018 was obtained in a manner that was contextually, temporally, and/or causally connected to this Charter violation” [italics in the original]. Accordingly, “all evidence seized” came within the first branch of s. 24(2), according to the Applicant. However, when the Applicant came to the second branch of s. 24(2), it was only the cell phone evidence and the seized money that would “bring the administration of justice into disrepute” and that should be excluded (as summarized above by reference to paras. 2, 6, 28, and 36 of the Notice of Application). Accordingly, the Supplemental Notice of Application amounted to a significant change in the Applicant’s position concerning the s. 24(2) stage of analysis.
(ii) The “mistrial” application
[36] On the morning of the second day of trial, both counsel made their submissions on the s. 8 Charter Motion. As summarized above, Ms. Webb advised that the Crown’s original concession of a s. 8 violation was “based on an erroneous interpretation of the law”. She sought leave to make submissions on the s. 8 issue. She explained that she had misinterpreted some of the statements in Marakah. I granted her leave to make submissions and emphasized that the Crown had the burden at the s. 8 stage of analysis, as it was a warrantless search.
[37] The Crown proceeded to submit that Det. Margetson had complied with the requirements set out in R. v. Fearon (2014), 2014 SCC 77, 318 C.C.C. (3d) 182 at para. 82 (S.C.C.), as his purpose in searching Green’s cell phone related to both the preservation and the discovery of evidence that was related to the arrest. The preservation of evidence purpose was focused on “proving” the phone seized from Blackwood, before service was terminated. The discovery of evidence purpose related to the fact that Blackwood was possibly a mere “runner” (and there was, therefore, some further “backend” supplier), and it related to Det. Margetson’s assumption or inference that there was likely a “stash” that could either be moved or destroyed. Crown counsel agreed that this latter point could be characterized as both the discovery and the preservation of evidence. In addition, she submitted that Det. Margetson confined the scope of the search to the time frame of the November 10, 2017 events, while acknowledging that he may have inadvertently scrolled into earlier messages. Finally, she submitted that Det. Margetson kept a proper record of the search by taking photographs of the text messages that he looked at and by testifying as to the specific cell phone applications that he looked at, based on his notes. It was conceded by the defence, at this point in the argument, that Det. Margetson’s notes set out a description of the cell phone applications that he had searched. It was conceded by the Crown that Det. Margetson did not photograph the call logs that he searched. However, the Crown relied on his testimony to the effect that it was the call logs between Green and Blackwood that he looked at and that he went on to photograph the actual text messages that they had exchanged.
[38] The Crown concluded by making submissions on the s. 24(2) Charter issue. She conceded that the post-arrest search of Green’s cell phone met the “obtained in a manner” branch of s. 24(2) but not the “bring the administration of justice into disrepute” branch. She submitted that any breach of s. 8 was, at worst, a judgement call that was close to the line and it was based on Det. Margetson’s understanding of the law that was applicable at the time. Furthermore, the discovery of the money and the drugs on arrest was lawful and inevitable and was unconnected to any subsequent s. 8 violation. In these circumstances, the Crown submitted that the search of Green’s cell phone had minimal impact on Blackwood’s s. 8 interests. Finally, the seized drugs and money were reliable real evidence that was essential to the prosecution of a serious offence involving trafficking in fentanyl, which is a particularly dangerous drug.
[39] After Ms. Webb had finished her submissions on the Motion, defence counsel noted that the Crown had now formally reversed its previous concession of a s. 8 violation. Defence counsel had been alerted to the Crown’s change in position in an email that he received from the Crown overnight. He submitted that whether Det. Margetson did or did not comply with Fearon had been “front and centre” on the s. 8 Motion. He found it “hard to believe” that a consideration of Fearon did not factor into the Crown’s earlier decision to concede a s. 8 violation. He sought a brief recess to consult with his client, as a result of these developments. I advised defence counsel that the Court was not bound by the Crown’s earlier concessions of a s. 8 violation and that, in any event, there was always a s. 24(2) issue concerning the gravity of any s. 8 breach, which would turn on the extent of any departure from Fearon. I granted defence counsel’s request for a short recess.
[40] Upon resuming court, Mr. Jackson advised that he was bringing what he described as a “mistrial” application. He was prepared to proceed with his submissions on the s. 8 Motion but there was a reasonable apprehension of prejudice. The Crown’s reversal of its position on the s. 8 issue meant that the focus was no longer on s. 24(2). Mr. Jackson conceded that Fearon was always in issue on the s. 8 Motion but previously it related only to the seriousness of the violation (the first set of s. 24(2) Grant factors) whereas now it had become a “gateway” issue. In addition, the circumstances in which the Crown came to resile from its concession was a further consideration. In this regard, Mr. Jackson submitted that I had taken a “substantive and significant intervening role in the examination” of Det. Margetson. He submitted that I “took over the examination with a series of pointed and leading questions that elicited evidence that would possibly … validate the search under the guidelines in Fearon.” This provided the basis for the Crown’s reversal of her position on Fearon. If the Crown had asked the questions that I asked, defence counsel would have objected because they were “leading questions.” He gave examples of what I had allegedly suggested to the witness in these leading questions. The examples given by Mr. Jackson were that I had suggested to Det. Margetson that part of the reason for looking in the phone was that “time was of the essence” in relation to “fentanyl being on the street.” Det. Margetson allegedly agreed with this suggestion of mine and it “helped bolster an argument” that there was no violation of Fearon. Mr. Jackson submitted that this “pivotal moment” in the examination was really a “cross-examination”. He did not object at the time because his concern only “crystalized” once the Crown had resiled on the second day of the Motion.
[41] At this point, Mr. Jackson clarified that his “mistrial” application was really an application to have me removed as the trial judge, on the basis of “reasonable apprehension of bias”. The s. 8 Motion would then re-commence before a new judge, with Det. Margetson giving the same evidence and the Crown making the same submissions that I had already heard. He explained that this further remedy of recusal was necessary because I had “stepped into the Crown’s role” and its significance had “only come home to roost” once the Crown resiled from its position and changed the issue on the Motion. He relied on settled Court of Appeal authority concerning judicial intervention that “enters the arena” and that “usurps the Crown’s function”. He submitted that the interventions elicited evidence that may have provided a basis for the Crown to argue compliance with Fearon. He submitted that this evidence “would not have existed”, but for my intervention, and that this gave rise to a reasonable apprehension of bias. As a result, the appropriate remedy was recusal and a mistrial.
[42] In response, the Crown submitted that the Crown’s questions were “open-ended” and elicited “long, complex, multi-faceted” answers. She submitted that Det Margetson testified as to the exigent circumstances that were in his mind and it was Det. Margetson himself who put Fearon in issue. She submitted that this was not put to him in the questions and that my questions simply clarified and re-framed the answers that he had given, in order to make sure they were understood. I advised counsel that my recollection was that Det. Margetson gave the evidence about “exigent circumstances” and about his efforts to comply with Fearon. I would then summarize his evidence, based on my notes, in order to ensure that I understood the evidence and had accurate notes of it.
[43] When I asked Mr. Jackson, he acknowledged that he had not listened to the DRD recording of Det. Margetson’s examination-in-chief, before bringing the mistrial and recusal application. He agreed with my suggestion that the DRD recording should be played in open court, starting around the point where Mr. Jackson alleged that I had improperly intervened. The Court Reporter found the relevant point in the examination-in-chief of Det. Margetson and played the DRD recording.
[44] After this playing of the DRD recording in open court, I invited further submissions from both counsel. Mr. Jackson submitted that I had “directed the flow of the questions” for a ten minute period during which the Crown did not ask questions and during which Det. Margetson “continued to expand on his purpose for searching through the text messages and on his understanding of the law.” This judicial intervention in the examination-in-chief was followed by my “prompting” the Crown, at the end of the day, to “reconsider or try to justify” her s. 8 concession, causing her to reflect on the evidence elicited by my questions. She then resiled from her concession the next day, all of which gave rise to a reasonable apprehension of bias.
[45] The Crown submitted that my questions during the ten minute period relied on by the defence simply clarified testimony already given by Det. Margetson, concerning his reliance on Fearon and s. 487.11 of the Criminal Code. In terms of her own conduct, Ms. Webb candidly acknowledged that it is not an enviable position to admit that she had made an erroneous concession of law. However, she had reflected on the matter overnight and had concluded that she made an error because her concession was made without regard to Fearon. She consulted colleagues and the case law, and did not wish to “perpetuate” the error by ignoring Fearon. It was for these reasons that she changed her position. She submitted that, in any event, the Court is not bound to accept an erroneous Crown concession on a point of law. She also acknowledged that she had not interviewed or spoken to Det. Margetson before making her concession of a s. 8 violation in her Factum. It was only afterwards that she spoke to him. In terms of any prejudice to Blackwood, the Crown submitted that the defence was clearly alive to the importance of Fearon and had provided a side-barred copy of the case to the Court on the first day of the s. 8 Motion.
[46] I dismissed the mistrial and recusal application in short oral Reasons, with written Reasons to follow. In particular, I relied on the DRD recording. It demonstrated that all of the critical evidence, explaining Det. Margetson’s reasons for the search of Green’s cell phone, came from Det. Margetson himself. He gave this evidence without prompting from me. I would go back over what I understood the evidence to be, in order to make sure that I had an accurate note of it. During the critical part of Det. Margetson’s evidence, he clarified and even corrected my understanding on at least four occasions. For example, he made clear that his purpose was not just to “prove” the phones, that he was looking for evidence, that “time was of the essence”, that there were “dangerous drugs” on the street, and that he was looking for the “stash”. All of this evidence came from Det. Margetson and not from leading questions from me. Some of the corrections or clarifications that emerged were actually helpful to the defence. I concluded that I had simply done what I always do, namely, recap evidence on any important points in order to make sure that I had accurate notes.
[47] At this point, Mr. Jackson proceeded to make full submissions on the s. 8 and s. 24(2) issues. I will summarize those submissions in the next section of these Reasons.
[48] I will briefly set out the applicable law relating to the mistrial and recusal application, now that I have had time to prepare written Reasons. There are four different bodies of law that are engaged by this application, as follows: first, the principle that the Court is not bound by the Crown’s concessions on points of law; second, the principle that the trial judge is entitled to intervene and question witnesses, in particular, when clarifying evidence; third, the law relating to reasonable apprehension of bias; and fourth, the law relating to the remedy of a mistrial. I will address each of these four areas in turn.
[49] Beginning with the Crown’s earlier concession, that there had been a s. 8 Charter violation in this case, it is settled law that the Court is not bound by this concession. In R. v. Lahiry et al (2011), 2011 ONSC 6780, 283 C.C.C. (3d) 525 at para. 35 (Ont. S.C.J.), the Court stated the following:
In the case at bar, the Crown conceded, erroneously, that the entire period from setting the date until the trial proceeded was all systemic delay. The Court is not bound by the Crown's erroneous concessions, especially in constitutional litigation. On occasion, in Charter cases, the Supreme Court of Canada has gone so far as to appoint amicus or to rely on intervenors to argue against the Crown's concessions. See: Kent Roach, "Not just the Government's Lawyer: the Attorney-General as Defender of the Rule of Law", (2006), 31 Queen's L.J. 598; Grant Huscroft, "Reconciling Duty and Discretion: the Attorney-General in the Charter Era", (2009), 34 Queen's L.J. 773.
Shortly after Lahiry was decided, the Court of Appeal adopted the above passage in R. v. Tran et al (2012), 2012 ONCA 18, 288 C.C.C. (3d) 177 at paras. 29-32 (Ont. C.A.), stating the following (per Simmons J.A., MacPherson and Blair JJ.A. concurring):
In my opinion, the trial judge made several errors in analyzing the reasons for the delay in the manner that he did.
Dealing first with the period of delay from arrest to the original trial dates, the recent decision of Code J. in R. v. Lahiry, 2011 ONSC 6780 (Ont. S.C.J.), serves as a reminder of some important principles concerning how to address the third factor in the analytical framework – the reasons for the delay.
First, the court is not bound by erroneous concessions by the Crown in allocating periods of delay: Lahiry, at para. 35, M. v. H, 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3, at paras 45, 210-211, Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, at para 44.
Second, parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel require time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing. These time frames are part of the inherent time requirements of the case. Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them. See Morin, at pp. 791-2, 794-5, 805-806. See also Lahiry, at paras. 25-37, citing Morin, R. v. Sharma, 1992 CanLII 90 (SCC), [1992] 1 S.C.R. 814 (S.C.C.), R. v. M. (N.N.) (2006), 2006 CanLII 14957 (ON CA), 209 C.C.C. (3d) 436 (Ont. C.A.), Schertzer, R. v. Meisner (2003), 57 W.C.B. (2d) 477 (Ont. S.C.J.), and R. v. Khan, 2011 ONCA 173, 277 O.A.C. 165 (Ont. C.A.).
[50] Applying the above principles, it must have been apparent to defence counsel, after I had heard Det. Margetson’s testimony and before the Crown resiled from her earlier concession, that the Court would require full argument on the s. 8 issue relating to compliance with Fearon. In fact, it was precisely at this point (at the end of Det. Margetson’s testimony) that Mr. Jackson provided me with a copy of the Fearon decision, helpfully side-barred to the passages that he intended to rely on. Furthermore, Mr. Jackson advised me the next day, before beginning his “mistrial” submissions and then during his submissions, that he was ready and prepared to argue the s. 8 issue. Indeed, he went so far as to express some disbelief at the Crown’s assertion that she had failed to consider Fearon. Mr. Jackson stated that Fearon was always “front and centre” on the Motion. In this regard, he conceded that the s. 24(2) analysis required an assessment of the gravity of the s. 8 violation (the first set of Grant factors) and that this would depend on the nature and extent of Det. Margetson’s alleged departure from the Fearon requirements for search of a cell phone incident to arrest. Finally, Mr. Jackson advised the Court that if his desired remedy of a mistrial was granted, the s. 8 Motion would simply be repeated, with Det. Margetson giving the same evidence and the Crown making the same arguments as I had heard. In other words, the record on the s. 8 Motion would not change.
[51] For all these reasons, I am satisfied that the Crown’s overnight decision to resile from her earlier concession of a s. 8 Charter violation, had little or no impact on trial fairness or on the appearance of fairness.
[52] Turning to the law relating to the trial judge’s right to intervene in the questioning of witnesses, two recent decisions of the Ontario Court of Appeal helpfully summarize the relevant principles. In R. v. Hamilton et al (2011), 2011 ONCA 399, 271 C.C.C. (3d) 208 at paras. 29-32 and 47-9 (Ont. C.A.), the Court stated the following (per Laskin, Moldaver, and LaForme JJ.A.):
Appellate courts are reluctant to interfere on the basis that a trial judge improperly intervened during a trial. There is a strong presumption that a trial judge has not unduly intervened in a trial, and that “there are many proper reasons why a trial judge may intervene by making comments, giving directions or asking questions during the course of a trial”: Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47, at para. 231.
When evaluating interventions by a trial judge, the fundamental question is whether the interventions led to an unfair trial: R v. Valley (1986), 1986 CanLII 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 232, application for leave to appeal dismissed, [1986] S.C.C.A. No. 62, 26 C.C.C. (3d) 207n. This assessment is made from the perspective of a reasonable observer present throughout the trial: R v. Stucky (2009), 2009 ONCA 151, 240 C.C.C. (3d) 141 (Ont. C.A.), at para. 72.
In Stucky, at para. 71, this court repeated three situations, referred to in Valley at pp. 231-32, where interventions by the trial judge have been found to lead to an unfair trial and have resulted in quashing criminal convictions. These situations are:
Questioning an accused or a defence witness to such an extent or in a manner which conveys the impression that the trial judge has placed the authority of his or her office on the side of the prosecution and conveys the impression that the trial judge disbelieves the accused or the witness;
Interventions that have effectively made it impossible for defence counsel to perform his or her duty in advancing the defence; and
Interventions that effectively preclude the accused from telling his or her story in his or her own way.
While these three situations appear to go some way toward categorizing different types of interventions, the analysis is nonetheless a contextual one. That is, interventions should not be judged in isolation but in the broader context of the entire trial: “[T]he record must be assessed in its totality and the interventions complained of in a given case must be evaluated cumulatively, not as isolated occurrences”: Stucky, at para. 72.
An examination of whether a trial judge has unduly intervened in a trial begins with the recognition that there are many proper reasons why a trial judge may intervene through comments, giving directions or asking questions during the course of a trial. A trial judge has an inherent authority to control the court's process and, in exercising that authority, a trial judge will often be required to intervene in the proceedings: R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481 (C.A.), at para. 40, 180 C.C.C. (3d) 498.
A trial judge may properly intervene to focus the evidence on the matters in issue, to clarify evidence, to avoid irrelevant or repetitive evidence, to dispense with proof of obvious or agreed matters, and to ensure that the way a witness is answering or not answering questions does not unduly hamper the progress of the trial.
At a time when we are concerned about the increasing cost and length of criminal trials as well as their drain on resources and the pressures they bring to bear on the administration of justice, appropriate trial management is to be encouraged, not muted.
[53] More recently, in R. v. Murray (2017), 2017 ONCA 393, 347 C.C.C. (3d) 529 at paras. 91-7 (Ont. C.A.), the Court reiterated these principles (per Watt J.A., Laskin and Gillese JJ.A. concurring):
It is well established that a trial judge is no longer a mere referee, an ear and eyewitness who must sit passively while counsel present the case as they see fit: R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481 (Ont. C.A.), at para. 40; Chippewas of Mnjikaning First Nation v. Ontario, 2010 ONCA 47, 265 O.A.C. 247 (Ont. C.A.), at para. 232, leave to appeal to S.C.C. refused, (2010), 276 O.A.C. 398(note) (S.C.C.); R. v. Brouillard, 1985 CanLII 56 (SCC), [1985] 1 S.C.R. 39 (S.C.C.), at p. 44. We accept that not only may a judge intervene in the adversarial process, but also that sometimes intervention becomes essential to ensure that justice is done in substance and appearance: Brouillard, at p. 44.
A trial judge may intervene to focus the evidence on issues material to a determination of the case. To clarify evidence as it has been given and is being given. To avoid admission of evidence that is irrelevant. To curtail the needless introduction of repetitive evidence. To dispense with proof of the obvious or uncontroversial. To ensure the way that a witness answers or fails to respond to questions does not unduly hamper the progress of the trial. And to prevent undue protraction of trial proceedings: Chippewas, at paras. 233-234.
Trial judges should be cautious in the exercise of these various incidents of what might be compendiously described as the trial management power. For the most part, a trial judge should confine herself to her own responsibilities, leaving counsel and the jury to their respective functions: R. v. Valley (1986), 1986 CanLII 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 231, leave to appeal to S.C.C. refused, [1986] 1 S.C.R. xiii (note) (S.C.C.); R. v. Torbiak (1974), 1974 CanLII 1623 (ON CA), 18 C.C.C. (2d) 229 (Ont. C.A.), at pp. 230-31.
The principal types of intervention that attract appellate disapprobation include, but are not limited to:
i. questioning an accused or witnesses in such a way as to convey an impression that the judge aligns him or herself with the case for the Crown;
ii. questioning witnesses in such a way as to make it impossible for counsel to present the defence case;
iii. intervening to such an extent in the testimony of the accused that it prevents the accused from telling his or her story; and
iv. inviting the jury to disbelieve the accused or other defence witnesses.
See Valley, at pp. 231-232; R. v. Stucky (2009), 2009 ONCA 151, 240 C.C.C. (3d) 141, at para. 71.
Appellate courts are reluctant to interfere on the ground that a trial judge improperly interfered during the course of a trial. A strong presumption exists that a trial judge has not intervened unduly at trial: R. v. Hamilton (2011), 2011 ONCA 399, 271 C.C.C. (3d) 208 (Ont. C.A.), at para. 29, leave to appeal to S.C.C. refused, (2012), 304 O.A.C. 398 (note) (S.C.C.), (2012) 304 O.A.C. 397 (note) (S.C.C.), and (2012), 303 O.A.C. 395 (note) (S.C.C.); Chippewas, at paras. 231, 243.
When undue intervention is advanced as a ground of appeal, the fundamental question for the reviewing court to determine is whether the interventions led to or resulted in an unfair trial. The issue is assessed from the perspective of a reasonable observer present throughout the trial: Hamilton, at para. 30; Stucky, at para. 72. The analysis is contextual and requires an evaluation of the interventions cumulatively, likewise their cumulative effect on the actual or apparent fairness of the trial: Hamilton, at para. 32; Stucky, at para. 72.
The question ultimately to be decided is whether the comments and interventions would create the appearance of an unfair trial to a reasonable person present throughout the trial proceedings. The analysis is not mathematical. And what is critical is what occurred in the presence of the jury. Events that took place in their absence, at least in most cases, cannot affect them or their decision: Valley, at p. 235.
[54] Applying the above principles, a number of important points emerge concerning the alleged improprieties in the present case. First, they all took place in the absence of the jury, on a s. 8 Charter Motion. This is a context in which the trial judge is the sole decision-maker. It is also a context in which clarity, on often subtle and complex points of constitutional law, becomes critically important. In these circumstances, in my view, a trial judge has considerable leeway when intervening in order to ensure that he/she has understood and has accurately noted the witness’ testimony. This is particularly important where the s. 8 Motion is brought during a jury trial and will become the subject of written Reasons, prepared some time after the trial has concluded. Second, the interventions all took place during the Crown’s examination-in-chief of its witness. None of the interventions interfered with defence counsel’s cross-examination of the Crown’s witness or with the defence case. Third, the alleged improper interventions were ultimately confined, according to defence counsel, to a ten minute time period when Det. Margetson gave a lengthy explanation of the purposes for his search of Green’s cell phone. There were no other complaints concerning any other interventions, in the broader context of the entire trial. Finally, the DRD recording of the alleged improper interventions (which counsel had not listened to, prior to bringing the “mistrial” application) did not support counsel’s most serious concerns. In particular, counsel’s assertion that I had suggested to the witness, in a series of leading questions, that “time was of the essence” because there was “fentanyl on the streets”, was simply incorrect. Det. Margetson gave this evidence, without prompting, and I then confirmed the accuracy of my understanding and my note of this evidence. This kind of intervention falls squarely within the Hamilton and Murray power “to clarify evidence as it has been given and is being given.”
[55] In all the above circumstances, a reasonable observer present throughout the trial would not conclude that my interventions led to or resulted in the appearance of an unfair trial. See: R. v. Hamilton, supra at para. 30; R. v. Murray, supra at paras. 96-7.
[56] It can be seen from the above analysis that, in my view, both branches of Mr. Jackson’s argument on the mistrial and recusal application were misconceived. Neither the Crown’s reversal of its position concerning the s. 8 violation, nor my interventions during Det. Margetson’s testimony, caused an unfair trial or the appearance of an unfair trial. In these circumstances, I need not refer in any great detail to the law relating to reasonable apprehension of bias and the remedy of a mistrial. Suffice it to say that the test for reasonable apprehension of bias is a difficult one to establish, given the presumption of impartiality, and a mistrial is a remedy of last resort, designed to prevent a miscarriage of justice. In relation to reasonable apprehension of bias, the Court of Appeal recently summarized the legal test in R. v. S. (2018), 2018 ONCA 962, 369 C.C.C. (3d) 112 at paras. 14-15 (Ont. C.A.):
Judicial impartiality lies at the core of our justice system. There is a “strong presumption” in favour of impartiality, one that is “not easily displaced”: Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282 (S.C.C.), at para. 25. See also: R. v. Nero (2016), 2016 ONCA 160, 334 C.C.C. (3d) 148 (Ont. C.A.), at para. 30; Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 (S.C.C.), at p. 395. To rebut that presumption and show a reasonable apprehension of bias, the moving party has a “high burden of proving the claim”: R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 (S.C.C.), at para. 114; Yukon, at para. 26. Substantial grounds are required to displace the presumption of impartiality: S.(R.D.), at para. 112; Nero, at para. 30.
To establish a reasonable apprehension of bias, the moving party must demonstrate that it is a “reasonable” claim, one that would be “held by reasonable and right-minded persons applying themselves to the question and obtaining the required information about it”: Nero, at para. 29. The question is, “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude”: Committee for Justice and Liberty, at p. 394; R. v. Dowholis (2016), 2016 ONCA 801, 133 O.R. (3d) 1, at paras. 18 – 23.
Also see: R. v. Gager and Smelie, 2020 ONCA 274 at paras. 141-146; R. v. Mallory (2007), 2007 ONCA 46, 217 C.C.C. (3d) 266 at para. 319 (Ont. C.A.). In relation to the remedy of a mistrial, the Court of Appeal recently described it in the following terms in R. v. P.D.C. (2021), 2021 ONCA 134, 401 C.C.C. (3d) 406 at para. 39 (Ont. C.A.):
A trial judge’s broad power to manage the trial process includes a discretion to grant what is a remedy of last resort—a mistrial. A mistrial is to be granted only “where there is a real danger that trial fairness has been compromised” and “in order to avoid miscarriages of justice”. Given that the trial judge is in the best position to determine these matters, a decision about a mistrial is entitled to significant deference on appeal: R v. Khan, [2001] 3 S.C.R. 832 at para. 52; R v. G.C., 2018 ONCA 392, 146 W.C.B. (2d) 332 at paras. 2-5.
Also see: R. v. J.H., 2020 ONCA 165 at paras. 61 and 78; R. v. Gager and Smelie, supra at para. 91.
[57] Mr. Jackson’s above-summarized arguments, concerning the Crown’s change in position and my questions of Det. Margetson, do not begin to rise to these demanding standards established in the case law for a finding of reasonable apprehension of bias or for the remedy of a mistrial.
[58] For all these reasons, I dismissed the defence application seeking recusal of the trial judge and a mistrial.
(iii) The s. 8 Charter violation relating to the search of Green’s cell phone
[59] The co-accused Green pleaded guilty at an early stage and was sentenced. Accordingly, he was no longer before the Court at the time of Blackwood’s trial. Although the warrantless search incident to arrest was of Green’s Samsung phone, there is no question that Blackwood has standing to challenge that search on s. 8 Charter grounds, as a result of the Supreme Court’s decision in R. v. Marakah (2017), 2017 SCC 59, 357 C.C.C. (3d) 281 (S.C.C.).
[60] An analysis concerning Det. Margetson’s warrantless search of Green’s cell phone, and whether that search violated s. 8 of the Charter, should begin with an assessment of Det. Margetson’s credibility and reliability. He was the supervisor of the undercover team of officers, he had listened in over a police radio to the conversations that night between Green and the undercover officer, he made the decision to search the seized unlocked cell phone, and he carried out the search. He was also the only witness to testify on the s. 8 Motion.
[61] I found Det. Margetson to be entirely credible and reliable. He is both experienced and knowledgeable. He was aware of the Fearon decision and s. 487.11 of the Criminal Code, which set out the governing law that he relied on and that he tried to apply, at the time of the events in this case on November 10, 2017. He also expressed a reasonably accurate understanding of the legal principles that emerge from this authority. He subsequently became aware of the Marakah decision, after it was decided on December 8, 2017, and he expressed a reasonably accurate understanding of its impact on the prior law. In short, his knowledge of the law was much greater than most officers who testify on Charter Motions. In addition, he testified in an impressively forthright manner. He candidly acknowledged that the purpose of his warrantless search went well beyond simply “proving” the two phones. He also conceded that he was searching in Green’s phone for third party information relating to the “backend” supplier, and so the principles that later emerged from Marakah were squarely engaged. Finally, he acknowledged suggestions put to him in cross-examination, to the effect that he may have strayed outside the “tight” confines of his intended search, when scrolling through the text messages and call logs in the phone. These points were all important to the defence and Det. Margetson candidly conceded them. In short, there was nothing defensive, evasive, one-sided, or biased in his testimony. I was impressed by his candour, as well as his knowledge and experience. If anything, he imposed more restrictive requirements on his warrantless search, than those set out in Fearon, because he read in a further “exigent circumstances” condition that is not found in Fearon.
[62] Given my findings as to Det. Margetson’s credibility and reliability, I accept his evidence concerning the purposes that led to his search of Green’s cell phone, concerning the scope of that search, and concerning the record he kept of the search. As summarized above, his initial purpose was simply to “prove” the two phones, before the telephone service used by the phones could be cancelled. However, his more intrusive purpose was to search for evidence as to whether Blackwood was a mere courier or whether he was the “backend” supplier, and to search for evidence as to the location of the supplier’s “stash”. He tried to confine the scope of the search by limiting it to two areas or functions, namely, the call log and text message applications. He also tried to limit its scope by time and date, that is, to the immediate time period that night when Green appeared to have been communicating with his supplier. As noted above, he frankly acknowledged that when scrolling through the call logs and text messages he may have inadvertently seen earlier logs and messages because the type on the screen is small and these logs and messages sometimes continue into earlier time frames. Finally, he testified that he kept notes concerning the scope and time of the search, and he took screenshots of the actual texts exchanged between Green and his supplier that were found during the search. He did not photograph the call logs that he searched.
[63] The Crown submits that the above evidence from Det. Margetson constitutes compliance with the requirements set out by Cromwell J., speaking for the majority in R. v. Fearon, supra at paras. 74-83. The defence submits that the evidence discloses a number of departures from the requirements of Fearon, in particular the following: first, Det. Margetson’s purpose in seeking to find the “stash” was not an arrest-related purpose because it sought evidence of a separate and more serious offence, rather than evidence of the offences for which Blackwood and Green were arrested; second, the “proving” of Blackwood’s cell phone number and the use of Green’s phone to make this call does not meet the demanding Fearon requirement that the “investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest”; third, Det. Margetson conceded that scrolling through the text messages and call logs may have exceeded the scope of his legitimate arrest-related purposes by revealing earlier texts and call logs; and fourth, Det. Margetson did not photograph his search of the call logs, and his notes were not put in evidence by the Crown as exhibits, and so the Crown has failed to establish that Det. Margetson kept a proper record.
[64] I am satisfied that at least two of the above defence submissions concerning alleged non-compliance with Fearon are not well-founded. In particular, the record-keeping requirements set out in R. v. Fearon, supra at paras. 82-3 are twice described by Cromwell J. as “detailed notes”. There is no requirement that each step in the search must be photographed. Det. Margetson did photograph the most invasive part of his search, when he took screenshots of the private content found in the relevant text messages. The call logs contained no similar content and the relevant information that was found in the call logs would also be set out in the text messages, which were photographed. In terms of his notes, Det. Margetson testified that he kept notes of the scope of his search and the times of the search. He was not challenged on this point and the parties agreed that his notes described the applications in the phone that he searched. I am satisfied that Det. Margetson complied with the record-keeping requirements of Fearon.
[65] The second defence submission that was clearly not persuasive concerned Det. Margetson’s efforts to locate the supplier’s “stash” and whether it could amount to preservation or discovery of arrest-related evidence. I am satisfied that trying to find a “stash”, from which the two seized grams of fentanyl were obtained, was squarely related to the arrests. If Det. Margetson had found a text message between Blackwood and Green indicating or inferring where the supplier’s “stash” of drugs was located, and if a larger amount of fentanyl was then found at that location, this could have provided important circumstantial evidence of Blackwood’s identity and role as Green’s supplier. The passages in R. v. Fearon, supra at paras. 75 and 79-80, relating to this issue are as follows:
The requirement that the search of the cell phone be truly incidental to the arrest should be strictly applied to permit searches that are required to be done promptly upon arrest in order to effectively serve the purposes of officer and public safety, loss or destruction of evidence, or discovery of evidence. Three modifications to the general rules would give effect to this approach.
The law enforcement objectives served by searches incident to arrest will generally be most compelling in the course of the investigation of crimes that involve, for example, violence or threats of violence, or that in some other way put public safety at risk, such as the robbery in this case, or serious property offences that involve readily disposable property, or drug trafficking. Generally speaking, these types of crimes are most likely to justify some limited search of a cell phone incident to arrest, given the law enforcement objectives. Conversely, a search of a cell phone incident to arrest will generally not be justified in relation to minor offences.
A further modification is that the third purpose for which searches incident to arrest are permitted — the discovery of evidence — must be treated restrictively in this context. The discovery of evidence, in the context of a cell phone search incident to arrest, will only be a valid law enforcement objective when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. Only in those types of situations does the law enforcement objective in relation to the discovery of evidence clearly outweigh the potentially significant intrusion on privacy. For example, if, as in this case, there is reason to think that there is another perpetrator who has not been located, the search of a cell phone for that purpose will be truly incidental to the arrest of the other suspects. As Det. Nicol testified, there were matters that needed to be followed up immediately in this case. If, on the other hand, all suspects are in custody and any firearms and stolen property have been recovered, it is hard to see how police could show that the prompt search of a suspect’s cell phone could be considered truly incidental to the arrest as it serves no immediate investigative purpose [Emphasis added].
[66] In my view, an immediate search for the supplier’s fentanyl “stash”, from which the two grams were likely taken, before the “stash” could be moved, hidden, or destroyed, was classically an “immediate investigative purpose” related to the arrests, within the meaning of the above passages from Fearon. Fentanyl trafficking puts “public safety at risk” and Det. Margetson reasonably drew inferences that a supplier would likely have a “stash”, particularly when the suspected supplier had been moving between at least two different locations that night and had only brought two small gram amounts to his meeting with Green. As Cromwell J. put it in Fearon, supra at para. 79, this kind of evidence not only “puts public safety at risk” but it is “readily disposable”. In my view, the defence submission, to the effect that Det. Margetson’s efforts to find and seize the supplier’s “stash” was outside of the Fearon requirements, has no merit. Also see: R. v. Bakal (2021), 2021 ONCA 584, 157 O.R. (3d) 401 at paras. 46-61 (C.A.).
[67] The other two alleged deviations from the requirements of Fearon – the “proving” of Blackwood’s phone number and the scrolling through text messages and call logs – are somewhat closer to the line. In terms of this latter point, Det. Margetson conceded (as summarized above) that he may have gone beyond the limited scope of his investigative purposes, when scrolling through the texts and logs. This amounted, at most, to an inadvertent breach. He explained that the type size on the cell phone screen was small, setting out the dates, times, and parties to the calls and texts. In addition, the call logs and text messages are sometimes continuous and can stretch back into earlier time frames. He did not intentionally search these earlier time frames but he may have inadvertently scrolled through some of them. Importantly, there is no evidence that he ever seized or used information from these earlier time frames. In my view, this kind of minor, fleeting, technical, and unintended violation of the Fearon requirements is situated at the least serious end of the spectrum of s. 8 violations. I will consider it in the next section of these Reasons, when addressing s. 24(2) of the Charter.
[68] That leaves the use of Green’s cell phone, in order to “prove” the phone number of the apparent supplier who Green had been texting and calling in the time period immediately prior to the arrests. When D.C. Wilson used Green’s phone to place a call to this number, the iPhone seized from Blackwood rang, thus “proving” Blackwood’s phone number. Mr. Jackson took no issue with the undercover officer using his own cell phone, in order to call the same number that he had previously called when contacting Green. This call from the undercover officer resulted in the Samsung phone ringing, thus “proving” Green’s phone number. Mr. Jackson conceded that the “proving” of Green’s phone in this manner was a limited and legitimate police investigative technique. It appears to be a common practice and it has been held to be lawful by this Court. See, e.g. R. v. Ahmad (2018), 2018 ONCA 534, 362 C.C.C. (3d) 36 at para. 25 (C.A.); R. v. Burchell, 2011 ONSC 6236 at paras. 22-3 and 46-50; R. v. Kabanga-Muanza, 2014 ONSC 3474 at paras. 33 and 69-71. However, Mr. Jackson submitted that using Green’s seized phone, in order to call the number that Green had previously been calling and texting that night, was a significant further search and that it required a general warrant. Neither Crown nor defence counsel were aware of any authority on this point.
[69] Det. Margetson testified that there was a need for expedition, in “proving” the number that Green had been texting and calling that night. He provided two separate bases for this alleged need for expedition. First, the cell phone service could be cancelled at any time and it was uncertain whether a subsequent forensic extraction of data from Blackwood’s locked phone, with a search warrant, would succeed in “proving” the number as reliably as an immediate call placed shortly after arrest. Second, calling the number that Green had been calling and texting that night, according to Det. Margetson, would assist the police in promptly determining whether Blackwood was a mere courier or was Green’s supplier. Det. Margetson’s logic, in this regard, was that Green appeared to have been calling and texting his supplier and it was unlikely that he would be calling and texting a mere courier being used by the supplier. The iPhone seized from Blackwood rang, when D.C. Wilson called the number found in Green’s phone, and this tended to confirm Det. Margetson’s belief that Blackwood was the supplier, that he was not a mere courier, and that there was not some other unknown supplier out there. When Det. Margetson searched the actual content of the text messages sent between Green’s and Blackwood’s “proved” phone numbers, the content also tended to infer that Blackwood was the supplier. In other words, there was a legitimate lawful arrest-related purpose that justified Det. Margetson’s decision to promptly “prove” the phone number of the suspected supplier. However, this does not answer the further question of whether it was lawful to use Green’s seized phone in order to carry out this otherwise lawful search incident to arrest.
[70] This is not an easy question to resolve, partly because I have not found authority directly on point and partly because there are weaknesses in the Applicant’s argument. In other words, it appears to be a point of first impression and the correct answer is neither clear nor obvious. I am satisfied that there was an arrest-related need to promptly “prove” the number of the cell phone seized from Blackwood, as explained above. In particular, Det. Margetson’s second rationale for “proving” the phone – to help in determining whether Blackwood was the supplier and not a mere courier – falls squarely within the preservation and discovery of evidence justifications for promptly searching a cell phone incident to arrest, as set out in Fearon, supra at paras. 79-80. As Cromwell J. put it, “if, as in this case, there is reason to think that there is another perpetrator who has not been located, the search of a cell phone for that purpose will be truly incidental to the arrest of other suspects … If, on the other hand, all suspects are in custody” and all “readily disposable” evidence has “been recovered”, it becomes much more difficult to justify a search incident to arrest of another suspect’s cell phone. It was only after satisfying himself that Blackwood was not a mere courier and that he was Green’s fentanyl supplier, as a result of “proving” Blackwood’s phone and searching the content of Green’s recent text messages with the supplier, that Det. Margetson could then be reasonably sure of two investigative inferences: first, that there was not “another perpetrator who has not been located”, as Cromwell J. put it in Fearon; and second, that the supplier (now identified as Blackwood) may have come from a “stash” when attending at the meeting with Green. In other words, “proving” the phone seized from Blackwood allowed Det. Margetson to promptly secure evidence of Blackwood’s role in the offences charged, to eliminate the possibility of another suspect, and to attempt to find the “stash”, albeit unsuccessfully. These were all important arrest-related purposes, justifying prompt searches incident to arrest of the two seized cell phones.
[71] The above line of reasoning justifies “proving” Blackwood’s phone, by calling the number obtained from Green’s phone. It does not entirely explain why Green’s phone was used by D.C. Wilson to make this call. It undoubtedly had some probative value, to make the call using the phone where Blackwood’s number was actually stored in either the “contacts” or call logs. This method of placing the call provided direct proof of a connection between the two seized phones. However, D.C. Wilson or Det. Margetson could have used their own phones to place the call, once the number had been lawfully obtained from Green’s phone. Mr. Jackson made strenuous submissions about the alleged impropriety of using Green’s seized phone to make this call. There are weaknesses in this argument because the police are entitled to carry out extensive and sometimes invasive tests with many items of seized evidence. Samples of DNA and fingerprints are lifted from seized objects, firearms are discharged in order to obtain rifling characteristics from the fired bullets and cartridges, documents are examined by experts in order to permit forensic audits or comparative handwriting analyses, and blood and bodily fluids found on seized clothing are subjected to biological analyses. Many of these examples of uses and tests to which seized evidence is routinely subjected by the police, are far more invasive of privacy interests than placing one call from Green’s phone to a number found in his “contacts” or call logs. None of these more invasive uses and tests performed with or on seized evidence require the police to obtain a general warrant. In addition, in the one Ontario case I have found, where the police used a phone seized from one suspect in order to call the stored number of another suspect (whose phone had also been seized), no s. 8 issue was raised. The second suspect’s phone was “proved” in this manner, without seeking and obtaining a general warrant. Although numerous Charter issues were raised in the case, there was no suggestion that this method of “proving” the second phone violated s. 8. See: R. v. Dinh, 2011 ONSC 5644 at paras. 9-13.
[72] I also note that lawfully seized cell phones have often been used by the police to receive incoming “drug purchase calls” for a period of time after the arrest of a suspected drug trafficker, without seeking or obtaining a general warrant. See: R. v. Baldree (2013), 2013 SCC 35, 298 C.C.C. (3d) 425 at paras. 13-14, 54, 71-2, and 85-8 (S.C.C.); R. v. Edwards (1994), 1994 CanLII 1461 (ON CA), 91 C.C.C. (3d) 123 at pp. 133 and 137-8 (Ont. C.A.). Using the seized cell phone in Edwards for “several hours”, in order to receive ten incoming calls from potential drug purchasers, was far more invasive than the single outgoing call in the present case. The obverse of this use of a seized phone (to receive incoming calls) has also occurred in two Western cases, where the police used a cell phone seized from one suspect in order to pose as that suspect. The seized phone was used in both cases to send outgoing text messages to another suspect, agreeing to purchase drugs from that other suspect. In both cases it was held that this use of a seized cell phone was not an “interception” and that a Part VI authorization was not required. Once again, it was not suggested that a general warrant was required to authorize this kind of arguably more intrusive use of a seized cell phone. See: R. v. Beairsto, 2016 ABQB 216 at paras. 63-4, aff’d (2018), 2018 ABCA 118, 359 C.C.C. (3d) 376 (Alta. C.A.); R. v. Pelucco, 2013 BCSC 588 at para. 77, aff’d (2015), 2015 BCCA 370, 327 C.C.C. (3d) 151 (B.C.C.A.).
[73] It can be seen from the above discussion and analysis that the police frequently use seized items of evidence, including cell phones, in order to carry out various tests and further investigative steps, without seeking a general warrant. I am, therefore, satisfied that there is no broad principle of search and seizure law to the effect that a lawfully seized exhibit must be kept by the police in some untouched, untested, or unexamined state, absent some further warrant allowing the police to use or test or examine the exhibit as part of an ongoing investigation. None of the above authorities or accepted investigative practices directly decide the issue in the present case. However, they are arguably analogous to the present case and they help to explain how the police could, in good faith, believe that there was nothing unlawful about using a seized cell phone in order to make one brief call to a number stored in the cell phone, in order to “prove” the other suspect’s phone and to directly establish a connection between the two seized phones.
[74] I need not resolve this issue at the s. 8 stage of analysis. Given the lack of authority directly on point, the better course is to proceed on the assumption that using the phone seized from Green, in order to place the call to Blackwood’s phone, was at worst a technical violation of s. 8 of the Charter. I characterize it as “technical” because I am satisfied that the substantive purpose for promptly “proving” Blackwood’s phone legitimately fell within the Fearon framework, as explained above. However, it was not strictly necessary to use the seized phone belonging to Green, in order to place the call, and the investigation would not have been “stymied or significantly hampered” (as Cromwell J. put it in R. v. Fearon, supra at para. 80) by having to use their own phones. There was some additional evidentiary value to directly proving that Green’s phone and Blackwood’s phone were connected, through their “contacts” or call log functions. Nevertheless, the officers could have used one of their own phones, as they did when “proving” Green’s phone. In these circumstances, assuming without deciding that there was a s. 8 violation, it was at most a technical breach. It also had little or no impact on Blackwood’s s. 8 interests. I will consider the gravity and the impact of the violation in the next section of these Reasons, when addressing s. 24(2) of the Charter.
(iv) Exclusion of the seized drugs, money, and cell phones pursuant to s. 24(2) of the Charter
[75] Beginning with the first branch of s. 24(2) of the Charter – “obtained in a manner” – the Crown conceded that this initial requirement was met in the circumstances of this case. I agree with the Crown’s concession on this point. The drugs, money, and cell phones that the Applicant seeks to exclude were all obtained and seized by the police immediately before and after the arrests of Green and Blackwood. It was about 11:28 p.m. when the arrests took place and when this evidence was obtained and seized. The s. 8 Charter violations relating to Green’s cell phone, that are in issue on this Motion, occurred at about 12:55 a.m. In other words, the search of the cell phone took place approximately one and a half hours after the seizures of drugs, money, and cell phones had been completed. The legal justification for the search of the cell phone was the common law power of search incident to arrest, as explained in Fearon. The police were promptly following up on the investigative leads that had emerged from the arrests.
[76] In the above circumstances, I am satisfied that there was both a temporal and a contextual connection between the earlier lawful seizures made upon arrest and the subsequent challenged search of the cell phone. There was no causal connection whatsoever between the subsequent search of the cell phone and the earlier seizures. However, a causal connection is not essential to the first branch of s. 24(2) and its absence can be taken into account when the second, more important, branch is reached. As Lamer C.J.C. explained, speaking for seven members of the full Court in R. v. Bartle (1994), 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 at 313 (S.C.C.):
Under the first threshold requirement, there must be some connection or relationship between the infringement of the right or freedom in question and the obtaining of the evidence which is sought to be excluded. However, a strict causal link between the Charter infringement and the discovery of the evidence is not required: Therens, per Le Dain J. at p. 509; Strachan, per Dickson C.J., at pp. 494-9, and Lamer J. (as he then was), at p. 501, and Brydges at pp. 345-6. Generally speaking, so long as it is not too remotely connected with the violation, all the evidence obtained as part of the "chain of events" involving the Charter breach will fall within the scope of s. 24(2): Strachan, per Dickson C.J. at p. 499, and Lamer J. at p. 501. This means that in the initial inquiry under s. 24(2) as to whether evidence has been "obtained in a manner that infringed or denied" Charter rights, courts should take a generous approach. However, it should be borne in mind that the presence and strength of the causal connection between the evidence and the Charter breach may be a factor for consideration under the second, more important, branch of s. 24(2): Strachan, per Dickson C.J., at p. 499; and R. v. I. (L.R.) (1993), 1993 CanLII 51 (SCC), 86 C.C.C. (3d) 289 at p. 307, 109 D.L.R. (4th) 140, [1993] 4. S.C.R. 504, per Sopinka J. [Emphasis added].
Also see: R. v. Pino (2016), 2016 ONCA 389, 337 C.C.C. (3d) 402 (Ont. C.A.).
[77] Turning to the second branch of s. 24(2) – “bringing the administration of justice into disrepute” – the well-known test that emerged from R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.) requires the balancing of three sets of factors. Those factors are as follows: the seriousness of the Charter-infringing state conduct; the impact of the violations on the accused’s Charter-protected interests; and society’s interest in adjudication of the case on the merits.
[78] In terms of the seriousness of the violations in this case, I have described two s. 8 violations in the previous section of these Reasons. The first violation – scrolling into earlier time periods – was inadvertent. In addition, no information was seized or used as a result of any such inadvertent scrolling. It occurred because of the type size on the cell phone screen and because text messages and call logs, by their very nature, are sometimes continuous. Det. Margetson understood the requirements in Fearon, relating to the permitted scope of the search, and I am satisfied that he made good faith efforts to keep the parameters of his search “tight”, as he put it. In particular, he confined the search to two applications in the cell phone, namely, the call logs and the text messages. He also made efforts to confine the search to recent texts and call logs between Green and his supplier on the night in question. This is precisely what R. v. Fearon, supra at para. 76, requires. In all these circumstances, it was the kind of violation that McLachlin C.J.C. and Charron J. were referring to in R. v. Grant, supra at paras. 74 and 75, when they stated: “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 … Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach … ‘Good faith’ on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.” All of these descriptions, of the kind of police conduct that minimizes the gravity of a Charter violation, apply to Det. Margetson’s conduct when he scrolled into earlier time periods in the call logs and text messages.
[79] In terms of the second s. 8 violation – using Green’s phone to make the call “proving” Blackwood’s phone – I have treated it as an assumed violation, because of the lack of authority on point and because much of Mr. Jackson’s argument is questionable. In other words, it is a novel issue where there appears to have been no prior authority guiding the police and where there are arguments supporting the police conduct. Assuming it violated s. 8, to use a lawfully seized item of evidence (Green’s phone) to place one call and obtain information about another lawfully seized item of evidence (Blackwood’s phone), I am satisfied this was at best a relatively minor violation. It was entirely legitimate and necessary to promptly “prove” the phone number of Green’s apparent fentanyl supplier, for the reasons already set out above. In other words, the substantive purpose of this further search fell squarely within the parameters of the law relating to cell phone searches incident to arrest, as explained in Fearon. The police could have used one of their own phones in order to make the call and “prove” the number. The fact that they used Green’s phone to place the call is the only alleged impropriety. I characterized this violation as “technical” because the particular search purpose – to “prove” the supplier’s phone – was appropriate and necessary, in order to promptly preserve and discover arrest-related evidence. The wrong means may have been used to achieve this proper purpose, but that decision was made in an area of the law where there was little or no guidance and where there are arguments supporting the police decision to use Green’s lawfully seized phone in order to place the call.
[80] For all the above reasons, the seriousness of the two s. 8 violations in this case was minor. This first set of Grant factors does not favour exclusion of the evidence. I should note that Mr. Jackson relied heavily on R. v. Marakah, supra at paras. 65-6, where McLachlin C.J.C. described the s. 8 breach in that case as “sufficiently serious to favour the exclusion of the evidence.” The facts relating to the warrantless cell phone search in Marakah are not set out fully in the judgement but McLachlin C.J.C. twice referred to it as a “forensic examination” (at paras. 63 and 65). In the Ontario Court of Appeal decision, R. v. Marakah (2016), 2016 ONCA 542, 338 C.C.C. (3d) 269 at paras. 9 and 192 (Ont. C.A.), the cell phone searches were described as follows by MacPherson J.A. and by LaForme J.A.: “Both phones were put through a forensic search”; and “Both the appellant’s phone and Winchester’s phone were subjected to a full forensic analysis, without legal authority and without placing any limits on the analysis.” In R. v. Fearon, supra at paras. 54, 57, 61, and 76-8, Cromwell J. repeatedly distinguished between permissible warrantless cell phone searches, incident to arrest, which are limited to “recently sent or drafted emails, texts, photos, and the call log” and, on the other hand, “the search of the entire contents of a cell phone or a download of its contents [which] is not permitted.” It is apparent that Marakah was the latter kind of highly invasive prohibited search, whereas the present case was a good faith effort to conduct the former kind of permitted search, and it was largely successful in achieving that objective. In other words, Marakah is easily distinguished on its facts, when assessing the gravity of the s. 8 violations in the present case.
[81] Turning to the second set of Grant factors, the Crown’s decision not to tender any of the evidence emanating from the search of Green’s cell phone is an important consideration. No evidence was led at trial about “proving” Blackwood’s phone and no evidence was led about the apparently incriminating text messages and call logs seized from Green’s phone. As a result, the s. 8 violations had no evidentiary impact on Blackwood. Furthermore, the search was of Green’s phone and it resulted in the police learning only the following: first, Blackwood’s phone number was confirmed; and second, a few recent text messages that Blackwood had exchanged with Green, relating to a commercial transaction, were read by the police and seized. Neither of these matters engaged core privacy interests. In R. v. Burchell, supra at para. 48, Hourigan J., as he then was, stated: “It is difficult to envision how the mere act of calling a telephone number engages any privacy interest of the accused …” Also see: R. v. Saciragic (2017), 136 W.C.B. (2d) 363 at paras. 28-34 (Ont. C.A.). In R. v. Fearon, supra at para. 61, Cromwell J. stated, “Looking at a few recent text messages or a couple of recent pictures is hardly a massive invasion of privacy, let alone an affront to human dignity.” In my view, the impact of the s. 8 violations on Blackwood’s privacy interests was minimal. Finally, the evidence that the Applicant seeks to exclude is drugs, money, and cell phones that were all seized lawfully at 11:28 p.m. on the night in question. None of this evidence was seized as a result of the s. 8 Charter violations which occurred an hour and a half later, at 12:55 a.m. The lack of any causal connection between lawfully seized evidence, and a subsequent Charter violation, is a factor that diminishes the impact of the breach. As McLachlin C.J.C. and Charron J. explained in R. v. Grant, supra at para. 122:
Discoverability retains a useful role, however, in assessing the actual impact of the breach on the protected interests of the accused. It allows the court to assess the strength of the causal connection between the Charter-infringing self-incrimination and the resultant evidence. The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused’s underlying interest against self-incrimination. The converse, of course, is also true. On the other hand, in cases where it cannot be determined with any confidence whether evidence would have been discovered in absence of the statement, discoverability will have no impact on the s. 24(2) inquiry.
In the present case, I am entirely confident that the drugs, money, and cell phones would all have been lawfully seized, regardless of any subsequent warrantless search of one of those cell phones. In R. v. Lenhardt (2019), 2019 ONCA 416, 437 C.R.R. (2d) 328 at para. 11 (Ont. C.A.), the Court stated the following (per Doherty, Benotto, and Huscroft JJ.A.):
The appellant had the onus to show that the evidence should be excluded under s. 24(2). Assuming there was a breach of s. 10(b), it is clear that there was no causal relationship between that breach and the obtaining of the narcotics by the police. There need not be a causal relationship to establish a case for exclusion under s. 24(2), but the absence of any such connection is a factor weighing against exclusion.
Also see: R. v Boutros (2018), 2018 ONCA 375, 361 C.C.C. (3d) 240 at paras. 38-9 (Ont. C.A.); R. v. Pileggi (2021), 68 C.R. (7th) 223 at paras. 107-8 and 120-125 (Ont. C.A.).
[82] For all the above reasons, the s. 8 violations had little impact on Blackwood’s Charter protected interests. This second set of Grant factors does not favour exclusion. Once again, it should be noted that Mr. Jackson relied heavily on R. v. Marakah, supra at paras. 67-9, in relation to the second set of Grant factors. In Marakah, McLachlin C.J.C. held that, “The impact on Mr. Marakah’s Charter-protected interest was not just substantial; it was total … This factor favours exclusion.” As set out above, the cell phone search in the Marakah case was described as, “a full forensic analysis, without legal authority and without placing any limits on the analysis.” Furthermore, the incriminating fruits of that forensic analysis of the phone were admitted in evidence at trial and formed the basis for the accused’s conviction (the conviction was set aside and an acquittal entered, on appeal, once the cell phone analysis was excluded). In other words, the s. 8 violation in Marakah had significant impacts on the accused’s interests, none of which are found in the present case.
[83] Finally, the third set of Grant factors strongly favours admission of the seized evidence. The two one-gram packages of fentanyl obtained and seized from Green, the $904 seized from Blackwood (including $200 in police “buy money”), and the three cell phones seized from Green and Blackwood are all reliable real evidence. They are also essential to the prosecution of a serious offence, especially the seized fentanyl packages. See: R. v. Boutros, supra at paras. 42 and 46.
[84] In conclusion, none of the three Grant factors favour exclusion of the evidence. In my view, it would harm the reputation of the administration of justice to exclude reliable, independently discoverable, lawfully seized evidence of fentanyl trafficking because of two minor subsequent s. 8 violations that had little impact on the Applicant’s Charter-protected interests. As Trotter J.A. put it in R. v. Pileggi, supra at para. 126 (Doherty and van Rensburg JJ.A. concurring):
The discovery of the drugs lies at the heart of the Crown’s case. Ultimately, the admission of the evidence would enhance the truth-seeking function of the trial. Its exclusion, based on constitutional violations that were only vaguely connected to its discovery, would damage the repute of the justice system.
D. CONCLUSION
[85] For all the above reasons, the s. 8 Charter Motion was dismissed and the evidence lawfully seized and obtained immediately before and after the arrests of Blackwood and Green was admitted. The evidence subsequently obtained as a result of the warrantless search of Green’s cell phone was not tendered by the Crown at trial.
M.A. Code J.
Oral Judgment Given: November 16, 2021
Written Reasons Released: December 21, 2021
COURT FILE NO.: CR-19-90000164-0000
DATE: 20211221
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
WAYNE BLACKWOOD
REASONS FOR JUDGMENT ON a s. 8 charter motion
M.A. Code J.
Oral Judgment Given: November 16, 2021
Written Reasons Released: December 21, 2021