ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-38/21

DATE: 20220223

BETWEEN:

HER MAJESTY THE QUEEN

– and –

K.A. and A.S.A.

Ms. A. Stevenson, for the Crown

Ms. D. Lafleur, for K.A.

Mr. R. Tomovski, for A.S.A.

HEARD: February 7, 8, 9, 10 and 14, 2022

REASONS FOR DECISION

DEFENCE SECTION 8 CHARTER APPLICATION: THE CONTENT OF THE ALLEGED VICTIM’S CELLULAR TELEPHONE

conlan j.

I. Introduction

[1] The two accused persons, K.A. and A.S.A., are charged with serious offences under sections 279.01(1), 286.3(1), 286.4, 279.011, and 286.2(1) of the Criminal Code. The general subject matter of the charges is alleged human trafficking. The accused are to be tried by a court composed of a judge and jury in May 2022.

[2] For three weeks in February and March 2022, this Court is hearing various pretrial applications brought by all parties. This ruling deals with the first application heard. The accused have jointly applied for an order, under section 24(2) of the Charter, excluding the alleged victim’s cellular telephone’s contents. They submit that their section 8 Charter rights (the right to be secure against unreasonable search or seizure) have been violated.

[3] The Crown agreed to call the evidence on the voir dire, which evidence included exhibits and testimony from officers Stephane Verreault (“Verreault”) and Julie Powers (“Powers”). Neither accused testified on the application.

II. Analysis

A Brief Summary of the Key Evidence on the Voir Dire

[4] It should be noted at the outset that the below is in addition to the preliminary inquiry evidence, which evidence was filed on consent as forming part of the foundation for the within application.

Officer Verreault

[5] The police had difficulties with this investigation because the key participants, including the alleged victim (“R.”), are French-speaking Canadians from Quebec. Hence, they relied on the assistance of Verreault, a police officer who speaks English and French. He acted as an unofficial interpreter.

[6] The relevance of Verreault’s testimony goes to the issue of the validity of the consent that R. allegedly gave to the police for them to search her cellular telephone. On that issue, Verreault gave the following testimony:

i. he never saw anyone search R.’s cellular telephone before she signed the consent form at the police station on November 11, 2018, and he did not search it either (direct examination by the Crown);

ii. he interpreted the consent form for R. by reading the English print to her in French and by explaining it to her to the best of his ability (direct examination by the Crown);

iii. R. expressed no confusion or uncertainty about the consent form (direct examination by the Crown);

iv. he had no concerns about R.’s understanding of the consent form (direct examination by the Crown);

v. R. never tried to revoke her consent (direct examination by the Crown);

vi. he did not pressure R. to sign the consent form, and he did not see anyone else do that either (direct examination by the Crown);

vii. R. did say at one point that she was scarred of the police, but he does not recall any follow-up with R. about that (cross-examination by Mr. Tomovski);

viii. there were times at the police station when R. was away from his presence, and he assumes that other police officers spoke to R. when he was not present (cross-examination by Mr. Tomovski);

ix. there was a train ticket purchased for R. by the police, and Powers never asked him to clarify with R. that the ticket was not dependent on her consenting to the police searching her cellular telephone (cross-examination by Mr. Tomovski);

x. he had no concerns about R.’s coherence or sobriety, and he did not suspect that she was intoxicated or impaired in any way (direct examination by the Crown);

xi. he did not specifically ask R. about any alcohol and/or drug use or impairment (cross-examination by Mr. Tomovski);

xii. R.’s signing of the consent form was not recorded by audio and/or video even though there was recording equipment available as R. signed the form at the exact same place and at about the same time that she gave to the police her audio-video recorded statement (cross-examination by Mr. Tomovski);

xiii. there was nothing preventing the recording of the consent form process (cross-examination by Mr. Tomovski);

xiv. he did not take verbatim notes about his interactions with R. (cross-examination by Mr. Tomovski);

xv. he did not take any notes while he was interacting with R., but rather he took the notes afterwards from memory (cross-examination by Mr. Tomovski);

xvi. his notes do not contain any specific words attributed to R. (cross-examination by Mr. Tomovski);

xvii. when he was conversing with R., he did not specifically ask R. if she understood what he said to her, aside from what is contained in the consent form itself (cross-examination by Mr. Tomovski);

xviii. there was no time restriction placed on the consent form process, and that meant that Verreault and the police could take as much time as they wished (cross-examination by Mr. Tomovski);

xix. he never asked the complainant to explain back to him in her own words what he had said to her (cross-examination by Mr. Tomovski);

xx. because there is no audio recording of the consent form process, there is no record of what exactly he said to R. in French (cross-examination by Mr. Tomovski);

xxi. there are some legal words in the consent form that he did not translate directly to French because he was unfamiliar with them, so he explained those terms to R. rather than translate them (cross-examination by Mr. Tomovski);

xxii. the consent form process took about five to ten minutes to complete (cross-examination by Mr. Tomovski);

xxiii. in hindsight, if he could go back he would have chosen to record the consent form process (cross-examination by Mr. Tomovski);

xxiv. he grew up in Ontario, he went to all-French elementary and high schools, he has had no French interpretation training, he is not an official interpreter for the Halton police, he has never lived in Quebec, and he has several relatives in Quebec whom he speaks with in French (cross-examination by Mr. Tomovski);

xxv. his first language was French, his parents only spoke to him in French at home, he learned French at home from birth, he learned English outside of the home, and his entire schooling was in French (re-examination by the Crown);

xxvi. he has some difficulties understanding slang French (cross-examination by Ms. Lafleur);

xxvii. R. had difficulty speaking English, it was obvious that English was not her first language, and she spoke very fast (cross-examination by Mr. Tomovski);

xxviii. with regard to R.’s audio-video statement to the police, there were a few translation errors that he made, and there were a few errors made by the transcriptionist as well (cross-examination by Mr. Tomovski);

xxix. the transcript of the formal statement is also incomplete as it does not include some words spoken between R. and the police just before R. had a cigarette break (at the bottom of page 64 of the transcript) – at that moment, what he says to Powers is “she’s asking about her phone, if she can do her phone right now”, and he says to R. “we will talk about this outside” (cross-examination by Mr. Tomovski, after the witness was recalled at the direction of the Court);

xxx. in light of the above, and what R. said to him just before the break in the formal interview, he assumes that the subject of the police making a copy of her phone must have been discussed earlier (cross-examination by Mr. Tomovski, after the witness was recalled at the direction of the Court);

xxxi. with regard to the consent form process, there is no way to check for errors in translation because, unlike the formal statement, there is no audio-video recording of it (cross-examination by Mr. Tomovski);

xxxii. he has a “vivid”, though imperfect, recollection of his dealings with R. (cross-examination by Ms. Lafleur);

xxxiii. before the formal statement began, and before the consent form was explained and signed, R.’s cellular telephone was discussed in some way because there was talk about the parental controls that were on it and which she was unhappy about (cross-examination by Ms. Lafleur);

xxxiv. it is possible, but he does not recall, that the content of the text messages on the cellular telephone was also discussed before the formal statement began and before the consent form was explained and signed (cross-examination by Ms. Lafleur);

xxxv. he has no memory of Powers, before the formal statement began, looking at R.’s cellular telephone and seeing messages in French (cross-examination by Ms. Lafleur);

xxxvi. he does not recall the specific questions that Powers asked R. before the formal statement began, or even during the statement, because his job was to interpret and to focus solely on that (re-examination by the Crown); and

xxxvii. he does not believe that Powers searched R.’s cellular telephone before the consent form was explained and signed (re-examination by the Crown).

Officer Powers

[7] With regard to Powers, she has been the officer-in-charge of the matter. She testified that, in November 2018, she believed that R.’s informed and written consent to search her own cellular telephone was sufficient, and thus no search warrant was required. She based her belief on correspondence received from officer Bryl, dated December 14, 2017. Bryl was a senior member of the human trafficking team and a superior to Powers. The correspondence from Bryl attached some caselaw, including the decision of the Supreme Court of Canada in R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608. The correspondence (an email) stated that consent was okay to seize historical texts between the complainant and the suspect that are on the complainant’s phone. The Bryl correspondence was accompanied by a legal opinion which Powers also read at the time.

[8] According to Powers, she never looked through R.’s cellular telephone. She testified further that R. has never tried to revoke her consent for the police to search the phone, nor did she specifically ask R. whether she wanted to revoke her consent.

[9] In answering questions posed by Mr. Tomovski, Powers acknowledged that recording the consent form process would have been preferable, as “best practice” (her words). The failure to record it was not with bad intention, she said. She simply turned off the recording at the conclusion of the formal statement.

[10] In cross-examination by Mr. Tomovski, Powers stated that, today, she continues to believe that no search warrant was required for R.’s cellular telephone. With a “shared phone”, she would get a warrant. More than one person, including a non-owner, can have a privacy interest in a phone, she admitted. According to Powers, R. stated that the suspects had control over her phone – her phone had parental controls on it. R. was upset about those controls and voiced that frustration, repeatedly, to the police. Powers did not know, at the time of the formal police interview of R., who bought R.’s phone.

[11] Like Verreault, Powers was cross-examined about the words spoken in the interview room, not transcribed, just before R. took a cigarette break (at the bottom of page 64 of the transcript). Powers agreed that, as everyone got up to leave the room, Verreault said something about the complainant’s phone and R. asking if they can do the phone now. Powers agreed further that she said something like “we can do that later, but we have to ask some questions first”.

[12] Powers rejected the suggestion by Mr. Tomovski that the police strategy was to give R. the impression that they would remove the parental controls on the phone but really the police intended to search the phone for evidence and download its content. Powers did agree that she did not personally clarify with R. the purpose of the police in searching the phone.

[13] Powers agreed with Mr. Tomovski that the police did some things for the benefit of R. – they bought her cigarettes, and they took her to Tim Horton’s, and they offered to get her a train ticket to get home. Powers disagreed, however, that there was any quid pro quo – train ticket in exchange for consent to search the phone, for example, though Powers did not specifically tell R. that the ticket was not dependent on R.’s consent to search the phone.

[14] Powers told Ms. Lafleur in cross-examination that she did not ask R. if she used drugs or was under the influence of drugs. Powers said that she had no concerns about R.’s sobriety, based on her interactions with R. There were no signs that R. was impaired by alcohol and/or drugs.

[15] In re-examination by the Crown, Powers testified that she did not see anything that led her to think that R. was afraid of the police.

The Issues to be Addressed

[16] This Court is prepared to adopt the framework outlined by Mr. Tomovski in his submissions on the application (Ms. Lafleur and her client relied on those submissions and gave none of their own). There are the following five questions to consider:

i. do the applicants have standing;

ii. whose onus is it to justify the search;

iii. was the consent to search given by R. a valid one;

iv. was there a section 8 Charter breach; and

v. should the evidence be excluded under section 24(2) of the Charter?

[17] Of course, counsel for the accused in our case acknowledge that everything depends on the answer to the first question, standing.

Issue Number One – Standing

Marakah

[18] The accused rely heavily on the 2017 decision of the Supreme Court of Canada in Marakah, the majority opinion authored by the Chief Justice.

[19] In Marakah, the Chief Justice described the issue as being whether section 8 of the Charter can ever apply to text messages that are sent and that have reached their destination and that the police want to access on the recipient’s device (paragraph 1).

[20] The Chief Justice answered that issue in the affirmative. Depending on the totality of the circumstances, such messages may in some cases be protected, resulting in the sender having standing to argue that the messages in question should be excluded under section 24(2) of the Charter because of a violation of section 8 (paragraph 4).

[21] Importantly, the Chief Justice was not dealing with facts similar to ours.

[22] In Marakah, the accused seeking standing had sent text messages to his accomplice. The general subject matter was the illegal trafficking in firearms. The police seized cellular telephones belonging to both suspects. Incriminating text messages were found on both devices. At trial, Mr. Marakah argued that the messages should not be admitted against him because of section 8 Charter violations. The application judge held that Mr. Marakah had no standing to challenge the admissibility of the messages recovered from the accomplice’s phone. The majority of the Court of Appeal for Ontario agreed (paragraphs 2 and 3).

[23] The Chief Justice, and the majority of the Supreme Court of Canada, disagreed. It was held that Mr. Marakah had standing because he subjectively believed his text messages to be private, even after they were received by the accomplice, and that expectation of privacy was objectively reasonable (paragraph 6).

[24] Marakah was not a case where the alleged victim is said to have consented to the police searching her own cellular telephone.

[25] The Chief Justice wrote for herself and three other learned justices. Justice Rowe wrote a separate opinion, concurring in the result but also recognizing the legitimacy of the policy concerns raised in the dissenting opinion. There was a vigorous dissent by Justice Moldaver, concurred in by another learned justice.

[26] Responding to some of the concerns raised in the dissenting opinion, the Chief Justice stated the following at paragraphs 46 through 53 of the majority opinion.

[46] It is suggested that even if the place of the search, the private nature of the subject matter, and the control over the subject matter support the conclusion that there may be an objectively reasonable expectation of privacy in a given electronic conversation, the Court should not recognize such an expectation because of the impact this would have on law enforcement. The Crown argues, and Moldaver J. concludes, that these considerations should tip the balance against recognition. Respectfully, I disagree.

[47] It is argued (see Moldaver J.’s reasons, at paras. 178-88) that if s. 8 may protect the sender’s privacy in a text message after it has been received then the police will either be required to obtain warrants in more situations or will be inclined to do so “out of an abundance of caution”, and that this may impact the ability of police to review messages sent to victims of sexual assault, sexual interference, harassment, child luring, and various other offences without judicial authorization.

[48] Moldaver J. rejects any interpretation of s. 8 that would allow sexual predators or abusive partners to retain a reasonable expectation of privacy in text messages that they may send to their victims (para. 169). However, since Hunter, prior judicial authorization has been relied on to preserve our privacy rights under s. 8. In consequence, the fruits of a search cannot be used to justify an unreasonable privacy violation. To be meaningful, the s. 8 analysis must be content neutral.

[49] Nor does my position lead inevitably to the conclusion that text messages sent by sexual predators to children or sent by abusive partners to their spouses will not be allowed into evidence. Three scenarios are possible.

[50] On the first scenario, the victim, his or her parents, or other intelligence alerts the police to the existence of offensive or threatening text messages on a device. Assuming that s. 8 is engaged when police access text messages volunteered by a third party (see R. v. Orlandis-Habsburgo, 2017 ONCA 649, at paras.21-35 ()), a breach can be avoided if the police obtain a warrant prior to accessing the text messages. As stated in Cole, “[t]he school board was . . . legally entitled to inform the police of its discovery of contraband on the laptop” and “[t]his would doubtless have permitted the police to obtain a warrant to search the computer for the contraband” (para. 73). Similarly, victims of cyber abuse are legally entitled to inform the police, which will typically permit the police to obtain a warrant. The police officers will be aware that they should not look at the text messages in question prior to obtaining a warrant. On this scenario, there is no breach of s. 8 and the text messages will be received in evidence.

[51] The second scenario is where the police, for whatever reason, access an offensive or threatening text message without obtaining prior judicial authorization. On this scenario, depending on the totality of the circumstances, the accused may have a reasonable expectation of privacy in the text message and therefore have standing to argue that the text message should be excluded. Standing is merely the opportunity to argue one’s case. It does not follow that the accused’s argument will succeed, or that the search of the text message will be found to violates. 8. While a warrantless search is presumptively unreasonable under s. 8, it is open to the Crown to establish on a balance of probabilities that the search was authorized by law, the law is reasonable, and the search was carried out in a reasonable manner: see R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278.

[52] The third scenario arises where a reasonable expectation of privacy in the text messages and a breach of s. 8 are established under the second scenario. This does not mean that the evidence will be excluded. The Crown can argue that the evidence should be admitted under s. 24(2).

[53] My colleague Moldaver J. “foresee[s]” various other “troubling consequences for law enforcement and the administration of criminal justice” (para. 180). It is suggested that s. 8 challenges will add to the time required to try cases, and may disrupt the “balance” between the state’s interest in effective law enforcement and individuals’ expectations of privacy (ibid.). If and when such concerns arise, it will be for courts to address them. There is nothing in the record to suggest that the justice system cannot adapt to the challenges of recognizing that some text message conversations may engage s. 8 of the Charter. Nor is it disputed that, where scrutiny of an electronic conversation is concerned, the state’s interest in effective law enforcement is outweighed by “the societal interests in protecting individual dignity, integrity and autonomy”: Plant, at p. 293. Whatever law enforcement’s interest in enjoying unfettered access to individuals’ text messages, privacy in electronic conversations is worthy of constitutional protection. That protection should not be lightly denied.

[27] The accused in our case place special emphasis on the reference to “content neutral” in the last sentence of paragraph 48 of the majority opinion.

Subjective Expectation of Privacy - Jones

[28] With regard to the initial question of whether the accused have a subjective expectation of privacy in the messages recovered by the police from R.’s cellular telephone, our accused rely upon the majority opinion of the Supreme Court of Canada in R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696.

[29] In Jones, the following was held at paragraphs 8 and 9.

[8] The appeal to this Court raises three questions. First, at his s.8 Charter application, was the appellant entitled to rely on the Crown’s theory that he authored the Text Messages in order to establish his subjective expectation of privacy in them? Second, if so, was the appellant’s subjective expectation of privacy objectively reasonable such that he has standing to make hiss.8claim? And third, did the Production Order provide lawful authority for seizing records of historical text messages located in the hands of a service provider?

[9] I would answer all three questions in the affirmative. I conclude that an accused mounting a s.8 claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts in the voir dire. In this case, Mr. Jones should have been permitted to rely on the Crown allegation that he authored the Text Messages, and his subjective expectation of privacy in the subject matter of the search is accordingly established. Further, it is objectively reasonable for the sender of a text message to expect that a service provider will maintain privacy over the records of his or her text messages stored in its infrastructure. I conclude, however, that the appellant’s s.8 rights were not breached because records of historical text messages were lawfully seized by means of a production order under s.487.012 of the Code(now s.487.014).

[30] In our case, the accused submit that they have established a subjective expectation of privacy because the Crown’s theory is that they authored the incriminating text messages seized by the police from R.’s phone.

[31] The Crown has not disputed the said submission with any determination, focussing instead on the next enquiry – the objective reasonableness criterion.

[32] I agree with Mr. Tomovski and Ms. Lafleur that it is not necessary for the accused to testify in order to establish a subjective expectation of privacy in the text messages that they have sent, and I agree further that the threshold is not that onerous to find such a subjective expectation of privacy, and I agree as well that the content of these text messages (see the colour-coded Exhibit 2, for example) and the law as set out in Jones lead to the conclusion that J.A. and A.S.A. have established, on a balance of probabilities, a subjective expectation of privacy in the text messages recovered by the police from R.’s cellular telephone. I make that finding.

Objective Reasonableness – the Law

[33] This area was the focus of the arguments by counsel.

[34] The enquiry here is to ask whether that subjective expectation of privacy is objectively reasonable. Only if that question is answered in the affirmative can this Court hold that the accused have standing to make their section 8 Charter claims. Jones, at paragraph 8.

[35] Here, our accused point to the importance of the nature of the relationship between the sender of the electronic messages and the recipient of those messages. For example, in R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320 (S.C.C.), an internet child luring case, Justice Brown, who wrote for the most number of other learned justices, held that an accused knowingly communicating with a stranger child is not the type of scenario where the normative question about when Canadians ought to expect privacy should be answered in the affirmative (paragraphs 20, 22, and 23).

[36] Interestingly, picking up on the expression used by the Chief Justice at paragraph 48 in Marakah, “content neutral”, Justice Brown acknowledged that a focus on the particular relationship between the parties involved in the electronic communications is not the traditional approach because it may be seen as encroaching on the “view of s. 8’s protection as content-neutral” (paragraph 25). Nevertheless, Justice Brown stated the following at paragraphs 25 and 26 in Mills (note, in particular, the last sentence in paragraph 26).

[25] While this Court has not traditionally approached s. 8 from the perspective of the particular relationship between the parties subject to state surveillance, this is because of its view of s. 8’s protection as content-neutral. In this case, the police technique permitted them to know that relationship in advance of any potential privacy breach. For example, in Dyment, the majority of the Court held that, while a person may consent to give a sample of blood requested by his or her physician, it does not follow that all privacy interests in the sample have been relinquished once the blood has left the person’s body. The s. 8 interest was not viewed by the Court as being concerned solely with the blood, but principally with the relationship between the patient and the physician. The Court wrote, at p. 432: “the Charter extends to prevent a police officer ... from taking ... blood from a person who holds it subject to a duty to respect the dignity and privacy of that person” (emphasis added). While, therefore, the patient had relinquished physical control over the sample, he was able — by reason of the privacy interest imbued in the relationship— to retain legal control over it.

[26] In short, the sample was a proxy for s. 8’s purpose in Dyment, being to protect a particular relationship — which society values as worthy of s. 8’s protection — from state intrusion. Applied to this appeal, and while I have said that many adult-child relationships are also worthy of s. 8’s protection — the relationship between Mills and “Leann” is not one of them, if expectations of privacy are to reflect a normative (rather than a purely descriptive) standard. The conclusion may or may not apply to other types of relationships, depending on the nature of the relationship in question and the circumstances surrounding it at the time of the alleged search.

[37] In my respectful view, Mills is not at all inconsistent with Marakah but rather a reminder that Marakah did not jettison, in the appropriate case, a consideration of the nature of the relationship between the parties. Evidently, after Mills, such a consideration is not to be considered as being precluded by the Chief Justice’s reference to “content neutral” at paragraph 48 in Marakah.

[38] The accused in our case take issue with the Crown’s reliance on the decision of Justice Bawden of the Ontario Superior Court of Justice in R. v. Patterson, 2018 ONSC 4467, a case about child luring through Facebook Messenger. In Patterson, the following is stated at paragraphs 11 through 13.

[11] In Marakah, it was clear that the applicant had a direct interest in the communications because he was a participant in the text conversations and the author of the messages which were introduced as evidence against him. Mr. Patterson’s interest in his Facebook communications is not as clear.

[12] Mr. Patterson’s Facebook activities included several different types of communication. Those communications can be broadly grouped as follows:

a. Text based conversations with the victim which constitute the actus reus of the offence of child luring;

b. Images and text received by Mr. Patterson as a member of a Facebook group where members would exchange images of child pornography and fantasize about the sexual abuse of children;

c. The Facebook profiles, background images and subscriber information which Mr. Patterson used to create the Jim Jay, Josh Jay and Ric Patterson Facebook accounts;

[13] Mr. Patterson’s direct interest in the communications varies depending upon which form of communication is at issue. I find that he has no direct interest in the first category of communications, the text messages which he sent to the victim. Those messages constitute the actus reus of the offence of child luring. The constitutional rights which protect our privacy have never gone so far as to permit an accused to claim privacy in respect of his own criminal offences.

[39] Mr. Tomovski and Ms. Lafleur submit that Justice Bawden’s comments at paragraph 13 are simply wrong in law. They submit that just because the electronic messages in question constitute the actus reus of the offence at hand does not preclude a finding that the accused’s subjective expectation of privacy in those messages is objectively reasonable.

[40] The accused in our case prefer, over Justice Bawden’s decision, the analysis of Justice Davies, also of the Ontario Superior Court of Justice, in R. v. Mootoo, 2022 ONSC 367. In that case, the accused was charged with sexual offences, possession of child pornography, child luring, and procuring a minor for the purpose of prostitution. On the specific issue of the relevance of the content of the electronic communications in question, Justice Davies stated the following at paragraphs 37 through 43.

[37] The Crown argues that even if Mr. Mootoo and H.J. were not strangers, their relationship is not worthy of protection because Mr. Mootoo was communicating with H.J. for a criminal purpose.

[38] By the end of his interviews with H.J. and her sister K.J., Det. Braganza had reasonable grounds to believe Mr. Mootoo had committed several criminal offences, including sexual interference, luring a child to engage in a sexual offence, and procuring a child to engage in prostitution. Det. Braganza read some of the sexually explicit messages Mr. Mootoo sent H.J. before March 30, 2017. Det. Braganza also heard a recording of a sexually explicit phone call between H.J. and Mr. Mootoo.

[39] Even if some of Mr. Mootoo’s communications with H.J. were criminal in nature that does not defeat the reasonableness of his expectation of privacy in those communications. The Supreme Court of Canada has repeatedly held that the analysis of whether a reasonable expectation of privacy exists must be content neutral. The analysis turns on the privacy of the location or thing searched, not the legality or illegality of the items sought or the information obtained: Marakah, at para. 48; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 36; R. v. M(A), 2008 SCC 19, [2008] 1 S.C.R. 569, at para. 72; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 19; Duarte, at pp. 51-52; and R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, at p. 50.

[40] For example, in Wong, the police received information that people may be using a hotel room for illegal gambling. The police installed a video camera in the room without prior judicial authorization. The Supreme Court held that when assessing whether someone had a reasonable expectation of privacy, the fact they were engaged in illegal activity is irrelevant. The question is not whether someone engaged in illegal activity in a hotel room has a reasonable expectation of privacy. Rather, the question must be framed “in broad and neutral terms”: Wong, at p. 50. In Wong, the question was whether, in a free and democratic society, someone who retires to a hotel room has a reasonable expectation of privacy.

[41] Similarly, the Supreme Court did not rely on the illegal nature of the communication in Mills as a basis to conclude that Mr. Mills had no expectation of privacy in his messages to Leann. The Court was interested in whether and how they knew each other, not whether their relationship involved illegal activity.

[42] Finally, in Marakah, the text messages seized by the police were about trafficking firearms. The fact that Mr. Marakah and Mr. Winchester were communicating for the purpose of carrying out a criminal offence did not defeat Mr. Marakah’s reasonable expectation of privacy in his messages. The Court reiterated that the content of the messages seized could not justify an unreasonable violation of privacy: Marakah, at para. 48.

[43] I find that Mr. Mootoo and H.J. were not strangers. This case is not comparable to Mills where the target was communicating with a fictitious child that Mr. Mills had never met. The nature of the relationship between Mr. Mootoo and H.J. supports a finding that he had an objectively reasonable expectation of privacy in their communications.

[41] I find it unnecessary for this Court to reconcile any alleged inconsistency between the decisions of my colleagues in Patterson and Mootoo.

[42] The issue of standing in our case can be decided without reference to whether the text messages seized by the police from R.’s cellular telephone are of such content, including whether they are evidence of the actus reus of the offence(s) charged, that they preclude a finding of standing. Rather, as urged by Mr. Tomovski, standing in our case can be decided on the basis of Marakah and Mills.

[43] I wish to say something, however, about the decision in Mootoo. Respectfully, I do not agree with the implication that Mills is authority for only what can be described as a “narrow exemption” (paragraph 46). I do not think that view is an accurate reflection of Justice Brown’s opinion in Mills, particularly at paragraph 26, where it was expressly noted that there may be other types of relationships, quite apart from that between Mr. Mills and his victim, which fall outside what is worthy of section 8 Charter protection when it comes to electronic communications.

Decision on Objective Reasonableness, and Ultimately on Standing

[44] Near the conclusion of Mr. Tomovski’s submissions on the issue of standing, reference was made to paragraph 50 of the decision in Marakah, where the Chief Justice was responding to the dissent’s concerns that text messages sent by sexual predators to children or sent by abusive partners to their spouses could be afforded section 8 Charter protection. Paragraph 50 is set out below.

[50] On the first scenario, the victim, his or her parents, or other intelligence alerts the police to the existence of offensive or threatening text messages on a device. Assuming that s. 8 is engaged when police access text messages volunteered by a third party (see R. v. Orlandis-Habsburgo, 2017 ONCA 649, at paras.21-35 ()), a breach can be avoided if the police obtain a warrant prior to accessing the text messages. As stated in Cole, “[t]he school board was . . . legally entitled to inform the police of its discovery of contraband on the laptop” and “[t]his would doubtless have permitted the police to obtain a warrant to search the computer for the contraband” (para. 73). Similarly, victims of cyber abuse are legally entitled to inform the police, which will typically permit the police to obtain a warrant. The police officers will be aware that they should not look at the text messages in question prior to obtaining a warrant. On this scenario, there is no breach of s. 8 and the text messages will be received in evidence.

[45] Mr. Tomovski and Ms. Lafleur submit that paragraph 50 in Marakah is supportive of their submission that the accused in our case have standing to challenge the warrantless seizure of the text messages by police from R.’s cellular telephone, and further that paragraph 50 is supportive of their submission that a search warrant was indeed required in our case.

[46] With much respect for the able arguments of defence counsel, I disagree. I conclude that neither accused in our case has standing, in that his subjective expectation of privacy is not objectively reasonable, and on that basis alone the joint section 8 Charter application must be dismissed.

[47] Regarding paragraph 50 in Marakah, in my view, it does not assist the accused in our case. The paragraph must be read carefully, including the reference to the decision of the Court of Appeal for Ontario in R. v. Orlandis-Habsburgo, 2017 ONCA 649. Justice Doherty, and in turn the Chief Justice, were speaking about a situation where the information in question is volunteered to the police by a third party, not by the alleged victim and a direct participant in the electronic communication, as in our case.

[48] In other words, paragraph 50 in Marakah cannot be taken as standing for the proposition that, on the first scenario being addressed by the Chief Justice, “s. 8 is engaged when police access text messages volunteered by” a person in the boots of our alleged victim, R.

[49] In my opinion, it makes no common sense to refer to someone in the boots of our alleged victim, R., as a “third party”. She is not at all akin to Horizon in Orlandis-Habsburgo, the case cited by the Chief Justice in Marakah.

[50] Further, I concur with Ms. Stevenson, for the Crown, that Marakah did not decide the specific issue in our case. The focus of the Chief Justice’s opinion in Marakah was whether an applicant could have standing to challenge the admissibility, under section 8 of the Charter, of electronic text messages found by the police on another person’s device. That insular question was answered affirmatively by the Supreme Court of Canada, but, as the Chief Justice stated, each case depends on its own facts and on an assessment of the totality of the circumstances.

[51] Moreover, as we know from Mills, the “totality of the circumstances” includes the nature of the relationship between the persons involved in the electronic communications.

[52] As for the nature of the relationship between R. and the accused persons, I agree with Mr. Tomovski that the existence of the parental controls on R.’s phone is strong evidence that the accused expected their electronic communications with the alleged victim to remain private. But that strong evidence does not assist the accused on the objective reasonableness of their subjective expectations of privacy.

[53] In fact, the existence of the parental controls on the personal possession of a supposed free-willed adult woman, being as demeaning and humiliating as they are, only serve to answer the normative question posed by Justice Brown in Mills in the negative – this is not a situation where Canadians ought to expect privacy over their electronic communications.

[54] The nature of this relationship, alleged male pimp and human trafficker and his alleged female sex worker and slave, is precisely one left open by paragraph 26 in Mills – a relationship not worthy of section 8 Charter protection when it comes to electronic communications.

[55] I agree with the Crown’s submission that the nature of the relationship in our case is every bit as heinous as the adult sex predator-stranger child relationship that Justice Brown was confronted with in Mills, and I also agree with the Crown’s reliance on paragraph 52 of the decision of Justice K. Campbell of the Ontario Superior Court of Justice in R. v. Lopez, 2018 ONSC 4749, set out below.

[52] For many years Canadian courts have decried the inherently exploitive, coercive and controlling actions of “pimps” in relation to prostitutes. The unfortunate contemporary reality of the sex trade is that male pimps typically are involved in the exploitation, degradation and subordination of women. At its most basic level, it is a form of slavery, with pimps living parasitically off the earnings of prostitutes. Pimps exercise their control over prostitutes by means of a variety of tactics including emotional blackmail, verbal abuse, threats of violence and/or pure physical violence and brutality. The prostitutes that are the subject of this coercive exploitation are typically vulnerable and disadvantaged women, who have been manipulated and taken advantage of by the pimp. Even in cases where their initial participation in the sex trade is voluntary, including perhaps their business association with the pimp, and adopted for reasons of perceived increased security and safety in an inherently dangerous line of work, the relationship invariably becomes one-sided and exploitive. Prostitutes are ultimately forced, in one way or another, to provide sexual services for money in circumstances where they would not otherwise have agreed to such services, and the money earned from those sexual services is collected by the pimp. Accordingly, in a very real and practical sense, pimps traffick in the human resources of prostitutes, callously using their sexual services as an endlessly available commodity to be simply bought and sold in the market place. Accordingly, pimps have been aptly described as a “cruel, pernicious and exploitive evil” in contemporary society. See, for example, Reference re ss. 193 and 195.1(1)(c) of the Criminal Code,1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123, at pp. 1134-1135, 1193-1194; R. v. Downey, 1992 CanLII 109 (SCC), [1992] 2 S.C.R. 10, at pp. 32-35; R. v. Grilo (1991), 1991 CanLII 7241 (ON CA), 64 C.C.C. (3d) 53 (Ont.C.A.), at pp. 60-61; R. v. Naud (1996), 1996 CanLII 485 (BC CA), 106 C.C.C. (3d) 348 (B.C.C.A.), at paras.40-44, affirmed,1997 CanLII 373 (SCC), [1997] 1 S.C.R. 312; R. v. Miller, [1997] O.J. No. 3911 (Gen.Div.), at paras. 33-45.

[56] I agree with Ms. Stevenson when she submits that “to protect these messages under section 8 would be totally antithetical to the values underlying the very section 8 being relied upon, dignity and personal autonomy included”.

[57] In my opinion, this Court’s conclusion on standing in no way runs afoul of Marakah and is not even inconsistent with Mootoo for that matter, the two decisions relied upon most heavily by counsel for J.A. and A.S.A.

[58] In Marakah, remember that the Chief Justice, at paragraph 55, expressly reiterated that each case depends on its own unique facts. Not every communication occurring through an electronic medium, and not even every communication sent by text message directly from one cellular telephone to another, will attract an objectively reasonable subjective expectation of privacy.

[59] Further, in Marakah, the Chief Justice’s reference to “third party” at paragraph 50 of the decision, which is where the Chief Justice is prepared to assume that section 8 of the Charter is engaged (meaning that there is standing), is distinguishable from the undisputed facts of our case.

[60] How can we be comfortable concluding that the reference to “third party” would seem not to include R.? Aside from common sense, this Court would point to paragraph 40 of the same opinion authored by the Chief Justice, just several paragraphs preceding the reference at paragraph 50. At paragraph 40, the Chief Justice uses the term “third parties” to mean someone other than Mr. Marakah and Mr. Winchester, the two persons involved in the electronic communications. By analogy, “third party” could not mean R., the alleged victim and a direct participant in the electronic communications in our case.

[61] Simply put, Marakah is not a consent search case, and it is not a case where the electronic messages came to the attention of the police through voluntary surrender by the alleged victim who was also one-half of the conversations.

[62] As for Mootoo, none of Justice Davies’ findings could be assumed to be the same if Her Honour had been confronted with a situation like ours. We know that from what Her Honour explicitly states at paragraph 113 of the decision (note especially the third sentence), reproduced below.

[113] I find the undercover operation had a profound impact on Mr. Mootoo’s privacy rights. The police effectively conscripted Mr. Mootoo to create evidence against himself. This case is not like cases where a complainant turns over existing communications to the police: see for example R. v. Phagura, 2019 BCSC 1638. In those cases, the police are passive recipients of messages that already exist. Here, the officer was eliciting evidence from Mr. Mootoo to be used against him.

[63] To summarize, ours is a case where the alleged pimps and human traffickers exchanged text messages with their alleged sex worker and slave. That alleged victim spoke to the police, went to the police station, spoke to the police again, gave a lengthy formal statement to the police, signed a consent to search form, and then voluntarily surrendered her cellular telephone to the authorities.

[64] On the totality of the circumstances, although I find that the accused each has a subjective expectation of privacy in the said electronic communications, I find that neither one’s subjective expectation of privacy is objectively reasonable. As such, neither one has standing to assert that his right to be free from unreasonable search or seizure has been infringed.

[65] Consequently, the joint section 8 Charter application is dismissed.

What if This Court is Wrong on the Issue of Standing?

[66] In the event that it is held by a higher Court that the accused does/do have standing, I will, albeit briefly, address the other issues implicated in the within application.

Whose Onus?

[67] I would have agreed with Mr. Tomovski and Ms. Lafleur – as the police search of the alleged victim’s cellular telephone was done without a warrant, the Crown bears the burden of proving its reasonableness. In this regard, the comments of the Supreme Court of Canada at paragraph 14 of its decision in R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531 are instructive.

[14] If s. 8 of the Charter is engaged, “the court must then determine whether the search or seizure was reasonable” (Cole, at para.36). A warrantless search or seizure is presumptively unreasonable, and the Crown bears the burden of rebutting this presumption (Hunter, at p. 161; R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652, at para.29). A search or seizure is reasonable “if it is authorized by law, if the law itself is reasonable and if the manner in which the search [or seizure] was carried out is reasonable” (R. v. Collins,1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278).

Was it a Valid Consent Search?

[68] I would have agreed with the Crown. I would have concluded that the police ought to have recorded the consent form process but that the failure to do so did not render the consent invalid.

[69] I would have held that the strict requirements for valid consent searches do not generally apply to alleged victims, as opposed to accused persons. I would have relied, as authority for that proposition, on the seminal decision of Justice Doherty of the Court of Appeal for Ontario in R. v. Wills, 1992 CanLII 2780. Therein, immediately after outlining the six basic requirements for a valid consent to what would otherwise be an unauthorized search or seizure, His Honour expressly refers, more than once, to “an accused, a suspect, or a target of the investigation”.

[70] R. was none of those things.

[71] Nonetheless, on the whole of the evidence, I would have concluded that the six criteria outlined in Wills were, in fact, met in our case.

[72] There was a written consent form signed. R. clearly had the authority to give that consent. I would have rejected any suggestion by the accused of a quid pro quo or anything else that would have weighed against the voluntariness of the consent. I would have held that it was pure speculation to suggest that the alleged victim might have been impaired or intoxicated when she gave the consent. I would have accepted that Verreault was fluent in the French language and communicated effectively in French with R., and I would have held on the basis of his evidence that R. was aware of the purpose of the search – that it was to search the content of the cellular telephone and not merely to remove the parental controls that had been placed on it. I would have found that the actual consent to search form is very short and simple and makes it abundantly clear that the signer (R.) did not have to consent and also had the right to change her mind and revoke her consent. Finally, I would have concluded that the potential consequences of signing the consent form would have been crystal clear to R. based on the content of the form itself, as translated and explained to her by Verreault, and those consequences included, most importantly, that the police were going to search her Apple iPhone for data related to human trafficking.

[73] I would have explained in my reasoning that Verreault was the most important witness on this issue, and that I found him to be a credible and reliable witness. I would have rejected any notion of oppressive circumstances, improper inducements or promises, or the lack of an operating mind on the part of R. I would have found nothing nefarious, though it is unfortunate, that there are some words spoken in the interview room that are not transcribed. Finally, I would have rejected the submission that there might have been a police search of the cellular telephone before the actual consent form was signed.

[74] As an aside, I would not have based my decision on this issue on the submission made by the Crown that perhaps there was no “search” at all, based on the analysis of Justice Poland in R. v. Morgan, [2020] O.J. No. 2330 (O.C.J.). According to Powers, a complete extraction report of substantial downloaded content of the phone was prepared; on the basis of the decision of the Supreme Court of Canada in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, and other cases, I would have described that as a “search”.

A Section 8 Charter Violation?

[75] I would have found no Charter breach because of the Crown’s persuasion, on balance, that it had rebutted the presumption of unreasonableness. Though there was no warrant obtained, the search was authorized by a valid consent properly obtained.

Section 24(2) of the Charter

[76] I would have went on to consider whether, assuming there was a section 8 violation, the evidence should be excluded.

[77] I would have tried my best to avoid the type of cursory analysis of the test mandated by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.), that is clearly inappropriate. R. v. McColman, 2021 ONCA 382, at paragraph 100, per the dissenting opinion of Justice Hourigan of the Court of Appeal for Ontario.

[78] I would have held that none of the lines of inquiry pointed towards exclusion of the evidence in our case.

[79] I would have accepted the evidence of Powers and found that she honestly and reasonably believed that the search was authorized without a warrant, based on the communications from both her superior officer and the legal advisor. I would have found not only the absence of bad faith but the existence of good faith on the part of the police. As such, I would have held that the violation was not serious.

[80] I would have concluded that the impact on the Charter-protected interests of the accused was extensive in the sense that the search recovered a large quantity of their seemingly private messages to and from the alleged victim, but on the other hand I would have pointed out that the content of the messages shows that the search was minimally invasive when one separates out the communications that go to the offences themselves. In other words, I would have observed that there is very little content in the electronic messages seized from the alleged victim’s cellular telephone that reveals personal information about the accused. On balance, I would have found that this factor militates against the exclusion of the evidence.

[81] In terms of society’s interest in the adjudication of the charges on their merits, I would have held that the electronic messages are reliable and important evidence to the Crown’s case. I would have observed that there is not much of anything else that is more repugnant than the exploitative nature of human trafficking. I would have held that this factor favours admission of the evidence.

[82] In balancing all of the factors, I would have concluded that only the exclusion of the evidence, and not its admission, would serve to bring the administration of justice into disrepute. Exclusion would cause a reasonably informed person to lose faith in the criminal justice system.

[83] I would have declined to exclude the evidence under section 24(2) of the Charter.

III. Conclusion

[84] The joint application brought by the accused is dismissed.

[85] Unless it is excluded on some other basis, the evidence obtained as a result of the police search of the complainant’s cellular telephone is admissible at the trial of the accused.

C.J. Conlan

Conlan J.

Released: February 23, 2022

COURT FILE NO.: CR-38/21

DATE: 20220223

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

K.A. and A.S.A.

REASONS FOR DECISION - DEFENCE SECTION 8 CHARTER APPLICATION: THE CONTENT OF the ALLEGED VICTIM’S CELLULAR TELEPHONE

Conlan J.

Released: February 23, 2022