Court File and Parties
COURT FILE NO.: CR-21-1246 DATE: 2022-01-14 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PEEL REGIONAL POLICE SERVICE Respondent
– and –
LATANYA GRANT Applicant
COUNSEL: J. Brevorka and K. Flanagan, for the Respondent A. El-houni for the Applicant
HEARD: December 13, 2021
Reasons for Judgment
WOOLLCOMBE J.
Introduction
[1] The Applicant, Latanya Grant, brings an application to quash a Warrant to Search her cell phone issued on September 19, 2021. The Warrant provided the Peel Regional Police Service (“PRPS”) with two Assistance Orders. First, it authorized police to make two forensic copies of certain specific forms of electronic data stored in Ms. Grant’s cell phone relating to a narrow and specific time frame. One of those copies was to be provided to Ms. Grant and a second to the Court, under seal. Second, it required Ms. Grant to provide her password and answer questions respecting whether she wished to assert privilege over the contents of the search her cell phone. The police would not be permitted to review the Court copy until Ms. Grant indicated whether she asserts privilege over any of the contents of the phone and, if she does, until after a judicial determination respecting that privilege.
[2] By way of background, Ms. Grant is not charged with any offence, nor is she a suspect. She is a witness to, and was the victim of a shooting on August 8, 2021. Ms. Grant made a 911 call to which police responded. They located her in her Volkswagen Passat a short distance from the shooting. She was bleeding and was taken to hospital for treatment. She provided to the police some information as to what had happened. Two other people were also shot in the same incident. The police are continuing to investigate this incident and have yet to identify any suspect or charge anyone.
[3] On August 9, 2021, the day after the shooting, the PRPS obtained a warrant to search Ms. Grant’s Volkswagen Passat. That Search Warrant, which is not challenged on this application, authorized the seizure of a number of items from the car, including “a small Nike satchel”. Execution of that Warrant on August 9, 2021 resulted in the police seizing the satchel in which the cell phone at issue was located. The phone was secured pending the police seeking a further Search Warrant.
[4] It is this subsequently authorized Warrant to Search, granted on September 19, 2021 in relation to the cell phone, that is at issue in this application.
Positions of the Parties
[5] It is the applicant’s position that the police seized her phone without lawful authority when they executed the August 9, 2021 search of her Volkswagen Passat. She submits that the Warrant did not specifically provide authority to seize the phone. Her position is that the phone ought to have been returned to her with the car on August 9, 2021 as she requested.
[6] Further the applicant submits that the September 19, 2021 Search Warrant could not have been properly issued on the basis of the Information to Obtain (“ITO”). The applicant submits that there was no subjective or objective basis to believe that evidence in relation to the offences would be found on the cell phone. The applicant submits that the Warrant is overly broad and violates her s. 8 Charter protected right to privacy, particularly when she is the victim of a crime, rather than a suspect. She says that there is a need to balance the power of the state and her privacy interests, especially when she has made an offer to the police to cooperate in the investigation by showing them that there is nothing of relevance on her phone.
[7] Finally, the applicant submits that the Assistance Order requiring her to provide the police with the password to her phone violates her s. 7 Charter right in that it compels her participation in an investigation when she, as a witness and victim, has a right to remain silent.
[8] The PRPS responds that Ms. Grant’s phone was properly seized pursuant to a validly issued Warrant to search her car and to seize the satchel in which the phone was located. Having located the phone, the PRPS submits that, as was legally required, it sought and obtained the September 19, 2021 Search Warrant before searching Ms. Grant’s phone. It submits that this Warrant is presumptively valid and that the applicant has failed to demonstrate that the authorization was improperly issued or that its execution would violate her Charter rights, notwithstanding Ms. Grant’s offers to cooperate in the investigation.
Analysis
[9] There are three issues to be decided:
a) Has Ms. Grant established that the seizure of her cell phone from her car was invalid?
b) Has Ms. Grant established that the September 19, 2021 Warrant to Search her phone should be quashed?
c) Has Ms. Grant established that the September 19, 2021 Assistance Order requiring her to provide her cell phone password should be quashed?
a) Has Ms. Grant established that the seizure of her cell phone from her car was invalid?
[10] As I have indicated, no challenge has been made to the Search Warrant of the applicant’s car, which authorized the seizure of the satchel in which the cell phone was located. That Warrant was issued at 10:55 a.m. on August 9, 2021. Appendix “A” of the Telewarrant to Search specifically indicated that the items to be searched for and seized included “a small Nike Satchel”. While the Information on Oath for this Telewarrant was not made part of the record on this application, it is obvious that in seeking the Search Warrant, the police were trying to further their investigation by locating forensic evidence or other evidence that would assist them in identifying both witnesses to, and the perpetrator of, the shooting.
[11] A search warrant to search a specific location for specific things confers on the those executing it the authority to conduct a reasonable examination of anything at that location: R. v. Vu, 2013 SCC 60 at paras. 23 and 39. On the basis of the unchallenged warrant, I accept the respondent’s position that the police were authorized to seize the satchel in which the cell phone was located.
[12] Having located a cell phone, in which there is an elevated expectation of privacy, the police were not permitted to search it. Unquestionably, if the police wished to search the phone, they were required to obtain another Warrant that specifically authorized them to do so, and to keep the phone secure pending receipt of a further Warrant: R. v. Vu, at paras. 25, 37-39; 40-49.
[13] Ms. Grant suggests that the police should have returned the phone to her as requested, rather than seeking a Warrant to search it. She says that they had no lawful authority to keep it pending the issuance of the September 19, 2021 Warrant. This has been her position since the seizure of the phone, as the chronology below sets out.
[14] Indeed, on August 11, 2021, before the Warrant to Search the phone had been sought, counsel for the Applicant (Ms. Friedman, not Ms. El-houni) first wrote to the PRPS Chief of Police expressing concern about the seizure of the cell phone. In the letter, counsel indicated that Ms. Grant was a paralegal and that her cell phone contained solicitor-client litigation-privileged material relating to a lawsuit against the PRPS. Counsel indicated that Ms. Grant was asserting privilege over the phone.
[15] Counsel also stated that Ms. Grant had repeatedly asked police to return her phone and that she had been refused, having been told that the police intended to seek a Search Warrant to search the phone. Counsel indicated that they did not expect that there would be any relevant information on Ms. Grant’s phone. Counsel observed that it was her understanding that the phones of the other victims of the shooting had not been seized or searched and that it was her view that Ms. Grant had been singled out. Counsel continued: “the appearance is that she is being targeted due to her activism in Peel region and due to her involvement in the Carby action” (the Carby action being the lawsuit against the PRPS).
[16] On August 17, 2021, General Counsel for the PRPS responded to Ms. Friedman and advised that the phone had been appropriately secured pending a judicial authorization and would not be searched without a further Warrant. Counsel explained that the phone had been seized because of Ms. Grant’s refusal to cooperate with the police investigation and because police believed that there may be relevant evidence on the phone in the form of photos or videos. Counsel advised that if Ms. Grant was prepared to attend with the police and provide what was being sought on consent, the phone would be returned.
[17] Counsel Ms. El-houni wrote to the PRPS General Counsel on August 25, 2021 suggesting terms that would be agreeable with Ms. Grant to facilitate the return of her phone. On August 26, 2021, PRPS Inspector Biring responded that a decision had been made by police, in consultation with the Crown’s office, to seek a Search Warrant for the phone. He indicated that he was aware of the concerns respecting privileged material on the phone and that these would be respected moving forward. Ms. El-houni responded that it was her position that the phone was not being lawfully held and that it should be returned to Ms. Grant. In keeping with her position, on September 1, 2021, Ms. Grant filed an application seeking the return of her phone until a Warrant was obtained to search it and was superseded by this one.
[18] The Warrant to Search the phone was issued on September 19, 2021.
[19] I do not accept the applicant’s claim that the police lacked a lawful basis to seize and retain her phone. As I have explained, the phone was lawfully seized.
[20] A report to justice was completed by Constable Forsyth on August 15, 2021. In it, he indicated that a black Samsung Smartphone had been seized during the execution of the Warrant. A Detention Order was made by Justice of the Peace Lin on August 16, 2021. The Order made was that the phone be detained by PRPS until November 12, 2021.
[21] Counsel for the applicant submits that rather that keep the phone pending the issuance of a Warrant, the police ought to have taken Ms. Grant up on her offer to cooperate and to show them her phone, as this would have respected her privacy interest.
[22] s. 489.1(1)(b)(ii) provides that when the police wish to keep something seized during the execution of their duties, they must make a report to a justice “as soon as is practicable”. A report filed under this section allows the seized items to be dealt with in accordance with s. 490(1), which grants a justice the power to order the things seized detained or returned. As explained by Fairburn J.A. (as she then was) in R. v. Canary, 2018 ONCA 304 at para. 45:
Filing the initial report under s. 489.1(1) is the act that places the property within the purview of judicial oversight. It provides for a measure of police accountability when dealing with property seized pursuant to an exercise of police powers. This provides an important measure of protection to the party who is lawfully entitled to the property, but also provides a measure of protection to the police who become the custodians responsible for the property seized.
[23] The question to be decided on this application is not whether the is whether police could have proceeded differently. Without doubt, there was more than one possible investigative route that the police might have explored once they had lawfully seized Ms. Grant’s phone. The issue to be decided, however, is whether Ms. Grant has established that the avenue that the PRPS did pursue, that of safely securing the phone pending the issuance of a Search Warrant, and making a timely Report to Justice seeking detention of the phone, was unlawful.
[24] No authority has been provided by the applicant suggesting that what the police did was unlawful. Nor has any compelling argument been advanced as to how the police, in obtaining a Detention Order of Ms. Grant’s phone, pending the application for a warrant to search it, violated any of her rights. In my view, there is no legal basis upon which to conclude that the police were required to return to Ms. Grant the lawfully seized phone while they sought an authorization to search it.
[25] It follows that I reject entirely Ms. Grant’s allegation that the phone was held by police solely because she refused to make a statement and cooperate. Ms. El-houni submits that I should conclude that the police improperly refused Ms. Grant’s offers to cooperate and that in choosing instead to pursue a search warrant, they abused their state power. There is no evidentiary foundation or basis for this argument before me and I do not accept it.
b) Has Ms. Grant established that the September 19, 2021 Warrant to Search her phone should be quashed?
[26] Ms. Grant’s further position is that the authorization to search her phone ought never to have been granted.
[27] The background to the issuance of that Warrant, as contained in the redacted ITO filed on this application, includes the following significant information:
- The shooting took place shortly before 8:35 p.m. on August 8, 2021 at 6333 Hurontario Street where 3-4 shots were fired and suspects fled. Police obtained three shell casings in the area. No witnesses on scene were able to provide any information to police about suspects or victims;
- At 8:45 p.m., Ms. Grant called 911 and reported that she had been shot at a party near the Starbucks on Hurontario St. and that one of her friends had also been shot and had been taken to hospital. At the time of her call, she was in her white Volkswagen Passat;
- Police located Ms. Grant at 8:50 p.m. in her Volkswagen Passat. They observed blood, a small Nike satchel and cash in the vehicle. Ms. Grant was taken to Brampton Civic Hospital where she was treated for a gunshot grazing her left elbow and lower back;
- At 10:45 p.m., Ms. Grant’s Volkswagen Passat was towed to the PRPS forensic identification unit;
- Two other victims of the shooting in the same area had been identified. One of them told police he had attended a party where there were about 20 other people;
- Ms. Grant declined to provide police with a video or audio statement and indicated she never would and would not be assisting police in their investigation;
- Legal counsel for Ms. Grant had advised police that she is a licensed paralegal and was working on an active lawsuit against PRPS. She claimed that the phone seized was her “secondary cellular phone”, that it would not have any information on it, that it does not work and that it has no sim card and is only an app phone. Counsel also advised police that it contained solicitor client privileged material. Her counsel demanded that it be returned or that that it be kept in the custody of the court or an independent third party in order to protect the privileged material;
- Police had received an email from another victim with several photographs of the party and attendees;
- A witness had told police that she had heard that the shooting may have been as a result of a rivalry between the promoters of the event and the shooter;
- Counsel for Ms. Grant had contacted police on September 8, 2021 and proposed a possible arrangement to have Mr. Grant’s phone returned to her which would have had her show the police photos or videos taken the day of the shooting.
[28] The Warrant to search the phone is presumptively valid. Ms. Grant has the onus of demonstrating its invalidity and any claim of a s. 8 Charter breach.
[29] Ms. Grant mounts a challenge to the facial validity of the Warrant. She submits that on the substantive contents of the ITO, the Warrant could not have properly been issued because it does not reveal grounds to believe that a search of the phone would afford any evidence.
[30] When a s. 8 challenge is made to the issuance of a Search Warrant, the reviewing justice must determine whether, on the basis of the material before the authorizing justice, there was sufficient credible and reliable evidence for the warrant to issue. This is not a de novo hearing and the reviewing judge does not stand in the place of the justice who issued the warrant. On this review, the existence of non-disclosure, misleading or unconstitutionally obtained material and new evidence of the omission of facts material to the discretion to issue the warrant are all relevant. Their impact is to determine whether there was a proper basis for the decision of the authorizing justice to issue the warrant: R. v. Araujo, 2000 SCC at para. 54; R. v. Pires, 2005 SCC 66 at para. 8; R. v. Morelli, 2010 SCC 8 at paras. 40-42; R. v. Paryniuk, 2017 ONCA 87 at paras. 42-43. R. v. Mahmood, 2011 ONCA 693 at para. 99; R. v. Sadikov, 2014 ONCA 72 at paras. 84-88.
[31] In my view, on the record before the issuing justice, there was a proper basis for the Warrant to have been issued in that there existed reasonable grounds for its issuance.
[32] As I have set out, the ITO included details of the PRPS investigation into the shooting, including efforts made to retrieve evidence from the phones of the other two victims. The ITO also set out the chronology of information that had been provided by Ms. Grant, including her claim that the phone seized by police is not a phone that would have any information on it, that it would not work and that it has no sim card and is only an app phone. In addition, the ITO set out the history of the communications between PRPS and Ms. Grant’s counsel respecting requests for the return of the phone and the proposal for Ms. Grant to show portions of the data on it to the police. Finally, the ITO set out the information that had been provided by Ms. Grant’s counsel about the fact that she was a paralegal who had been working on an active lawsuit against PRPS and that she was asserting solicitor-client privilege and litigation privilege over the contents of the phone. The summary of the investigation in the ITO appears to me to have been fair and accurate.
[33] Counsel for Ms. Grant submits that from what was set out in the ITO, there was no basis to believe that the phone would provide any evidence of the offence. I disagree. While the Informant disclosed to the Issuing Justice Ms. Grant’s position that the phone would not have any evidence, the Informant also set out detailed grounds to believe that the phone would afford evidence. This included that Ms. Grant’s counsel had confirmed that the phone found in her car belonged to her and that investigators believed it likely that through social messaging and texting, the phone would have information about who organized the event and who attended it and so who might be a witness. The Informant also set out that the call logs sought for the short period immediately before and after the party would assist police in determining who was at the event. Finally, the Informant disclosed that photographs had been taken at the party and indicated that it was unknown if Ms. Grant’s phone had been used to take photos or videos that would, if they existed, assist the police in determining who was there and who were potential witnesses or suspects.
[34] In my view, the ITO contained sufficient grounds to believe that the search of the phone sought would afford evidence. It is well known that cell phones are used extensively to communicate and to take and send photographs and videos. The police knew that Ms. Grant’s phone was with her at the time she was shot. In these circumstances, it is no leap to conclude that the phone would likely have photographs and/or videos and communications with her before, at the time of, and shortly after the shooting that would have evidentiary value in relation to the shooting: R. v. Yabarow, 2019 ONSC 3669 at para. 23; R. v. T.I., 2021 ONSC 2722 at para. 23-25.
[35] Ms. Grant submits that it would have been much easier for the police to speak to her directly and that they should have relied on her assertion that there was nothing useful on her phone. Counsel goes so far as to say that when Ms. Grant had demonstrated a willingness to cooperate by showing the police the contents or her phone, they were obliged to accept this offer rather than using the “enormous state power” to obtain a Search Warrant. No authority has been provided in support of this submission.
[36] To begin with, I reject as lacking any evidentiary foundation Ms. Grant’s suggestion that her self-described activism or her work on a civil case against the PRPS had any bearing whatsoever in the decision by the police to seek a Warrant to search her phone. Simply put, there is no evidence before me to ground such an allegation.
[37] Further, I do not accept Ms. Grant’s submission that the police were required to accept her statement that there was nothing of any evidentiary assistance on the phone and to permit her to demonstrate this, rather than seeking a Search Warrant. To the contrary, in my opinion, it was reasonable for the police to seek a warrant to conduct an authorized search of the phone. Just because Ms. Grant was a witness, rather than a suspect, does not impose an obligation on the police to accept what she said respecting the contents of the phone or her use of it. Moreover, as counsel for the PRPS points out, in the event that there is evidence on the phone that may ultimately be used at the trial of an accused person, it is important that the forensic integrity of the phone and the continuity of any items seized be maintained. Further, police need to be able to demonstrate that they had the legal authority to extract the evidence upon which they later seek to rely. In the absence of any legal authority to the contrary, I think it was legitimate for the police to seek a court order permitting them to obtain a detailed forensic extraction of the phone for the purposes of subsequent disclosure rather than to accept the terms proposed by Ms. Grant’s counsel for her to control how she showed them the contents of the phone.
[38] I also do not accept the submission made by Ms. Grant that the Warrant, as drafted, is overly broad and does not respect her privacy rights. Counsel submitted that the call logs and the contact lists for which the Warrant authorized extraction would enable police to look at all of Ms. Grant’s call logs, contacts and photographs. A careful read of the Warrant and ITO reveals that this is not the case.
[39] The Warrant is clear that the authorization is for electronic data stored on the phone within the limited timeframe of August 8, 2021 at 5:00 p.m. to August 9, 2021 at 4:59 a.m. This timeframe applies to the detailed information about the user and owner of the phone, the call logs, the contact lists the texts and messages and the photographs and videos. I cannot see how this, on its face, could possibly authorize the police to extract the entirety of Ms. Grant’s call logs or contact list.
[40] More information supporting this reading is contained in the ITO. The Informant explains that it is now known what communications Ms. Grant had with others before the party and what communications she had at the time of the party or immediately after. The timeframe is because police believe it is reasonable to believe that she would have communicated with others in the hours before the event to make plans, and immediately after it, given what had happened. It is clear that the call logs relate only to calls made and received in this period. Similarly, using her contact list is only to assist in identifying who she may have been communicating with in the relevant time. The messages sought are only those received and sent in the relevant time. Finally, given that it is unknown if Ms. Grant’s phone was used to take or share photos or videos, it will be examined for photos taken, sent or received in the relevant time period.
[41] In summary, I do not accept the applicant’s position that the Search Warrant authorizes the extraction of all sorts of private information that is outside the relevant time frame.
[42] I recognize that Ms. Grant has privacy interests in the content of her phone and that she has asserted claims of privilege over its content. Any search must be specifically tailored to respect her privacy interests and protect the solicitor-client and litigation privilege claims. No argument was advanced to suggest that the search warrant does not do so. Indeed, such an argument would be ill-conceived, given the careful manner in which the Warrant does protect any claims of privilege that Ms. Grant may wish to make.
[43] The applicant has failed to satisfy me that the Search Warrant could not have been properly issued. In my view, the ITO sets out reasonable grounds to believe that the search of the phone will afford evidence. I do not find the Warrant to be overly broad. It is minimally intrusive and narrow in terms of the time frame and categories of evidence. Given the ubiquitous use of cell phones, it is probable that Ms. Grant’s phone will have evidence in the form of messages, call logs, or photographs that will assist in identifying other people who were at the event and who may be witnesses or suspects: R. v. Yabarow, 2019 ONSC 3669 at para. 23.
[44] While not contained in her written submissions, counsel for Ms. Grant advanced a position in her oral submissions that the police abused their authority in seeking a search warrant. Indeed, as I understand her position, it is that the police abuse began with the unlawful seizure of her phone (a position I have already rejected) and continued with a refusal to return it and then the seeking of the search warrant without grounds. As I understand her position, it is that by deciding not to engage Ms. Grant’s cooperation by permitting her to show them what is on her phone, and instead holding her phone and obtaining a Search Warrant, the police demonstrated an intent to pursue an unduly invasive search. The suggestion made was that this action by police triggers the residual power of the court to set aside the Warrant despite a finding that it was validly issued.
[45] There is no question that there exists a residual discretion to set aside a validly issued search warrant. The threshold to invoke this discretion is high, requiring a finding that the “police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like” R. v. Paryniuk, at para. 69.
[46] As I have already explained, the police were entitled to seize the satchel with the phone when they executed the Search Warrant of Ms. Grant’s Volkswagen Passat. After making an appropriate report to a justice, they obtained a Detention Order for the phone. I see nothing improper about the police decision to seek a Search Warrant in order to investigate whether Ms. Grant’s phone contained evidence that would assist with their investigation into this shooting. Rather than subvert the pre-authorization process, in my view the PRPS properly engaged it, providing a full and fair account of their investigation to the issuing justice. This included the details that Ms. Grant had said that the phone would not have evidence, details about her offer to show them the phone and the terms of such an arrangement that Ms. El-houni had offered. As I have indicated, just because the police could have elected to follow this investigative tool does not mean that it was abusive not to. Respectfully, I find no evidence upon which to conclude that any police decision was made in bad faith. The terms of the search that were provided by the Informant make it obvious that the police wanted to respect any claims of privilege made by Ms. Grant and belie any suggestion by her that the police were intent on conducting an improperly invasive search of her phone.
c) Has Ms. Grant established that the September 19, 2021 Assistance Order requiring her to provide her cell phone password should be quashed?
[47] I turn now to Ms. Grant’s submission that the Assistance Order requiring her to provide her phone password violates her s. 7 Charter rights by compelling her to cooperate with the police and violating her right to silence. She submits that she cannot be compelled to cooperate in an investigation that may give rise to charges against her and that her s. 7 right to silence should protect her against being compelled to assist the police as the assistance order requires.
[48] The starting point for the analysis must be that the Assistance Order is valid. It is for Ms. Grant to demonstrate its invalidity.
[49] I accept that a reasonable expectation of privacy exists in a password that protects access to information. This includes, in this case, the password to Ms. Grant’s phone. An Assistance Order that requires her to provide her phone password to the police does engage her privacy interest in the password.
[50] The applicant has submitted a number of authorities in which courts have found that an Assistance Orders requiring accused people to provide a password to unlock their devices, and thus to actively participate in investigations against them, violated their s. 7 Charter protected rights: R. v. Shergill, 2019 ONCJ 54, R. v. Talbot, 2017 ONCJ 814; R. c. Boudreau-Fontaine, 2010 QCCA 1108 at paras. 39-46.
[51] This case is critically distinguishable. It does not concern an Assistance Order requiring an accused person to do anything. There is no accused. Ms. Grant is not an accused. She is not a suspect and is not being investigated. In my view, this makes the authorities provided much less relevant because there is no sense here in which Ms. Grant is being compelled to self-incriminate. Indeed, were she to be charged, it seems to me that she would have a forceful argument to claim a s. 7 Charter violation flowing from this Assistance Order.
[52] Despite whatever privacy interest Ms. Grant has in the phone password, it is significant that the police have a valid authorization to search the phone for password protected data. Assistance Orders are intended to accompany Search Warrants. They may be granted when the justice is satisfied that they are reasonably required to give effect to the Warrant. Even if Ms. Grant was an accused person, the police would be able to seek, and likely obtain, an Assistance Order directed at a software provider who would be able to gain access to Ms. Grant’s cell phone: R. v. Otto, 2019 ONSC 2514 at para. 142-144; R. v. Millard, 2016 ONSC 348.
[53] Ms. Grant offers no authority in support of her claim that s. 7 protects her, as a witness, from being subject to an Assistance Order to facilitate execution of a validly issued Search Warrant. There is no basis to think that she is a suspect or is being investigated. All of the authorities upon which Ms. Grant relies in support of her position that this Assistance Order violates her right against self-incrimination and right to silence are fundamentally different in that they were decided in the context of the rights of an accused person. Context is everything. Here, the context is that Ms. Grant is a victim and a witness who has chosen not to provide information to the police that is likely to assist in the execution of a validly issued Search Warrant. That is her choice, of course, but she has not persuaded me of any basis upon which to quash the Assistance Order. I decline to do so.
Conclusion
[54] The application is dismissed.
[55] The Search Warrant may be carried out in accordance with the terms included therein. The time limit for the warrant must be extended as a result of this application.
J.M. Woollcombe J.
Released: January 14, 2022