COURT FILE NO.: CR-21-53
DATE: 2022-07-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.W.
Robert S. Kraska, for the Crown
Tyler Smith and Natasha Naresh, for J.W.
HEARD: June 21-23, 2022
REASONS FOR DECISION – DEFENCE SECTION 8 CHARTER APPLICATION
conlan j.
I. Introduction
The Charges
[1] Mr. W. and another person stand jointly charged with seven counts under sections 348(1)(b), 344(1)(a.1), 279(2), 348(1), 351(2), and 266 of the Criminal Code. The charges involve alleged home invasion robberies in late 2019 and early 2020. The charges are currently before the Superior Court of Justice in Halton, Ontario, with a jury trial scheduled to take place in September 2022.
The Defence Application
[2] Mr. W., in a Notice of Application dated May 24, 2022, applies for an order excluding the evidence obtained by the police from his cellular telephone (“phone”), which phone was seized by the police upon the arrest of Mr. W. on January 28, 2020. The application is brought under sections 8 and 24(2) of the Charter.
[3] The application was heard on June 21, 22, and 23, 2022. There were two days of viva voce evidence, followed by submissions by counsel.
[4] The Crown called three witnesses: (i) Omar Nadim (“Nadim”), a now retired Detective Supervisor with the Halton Regional Police Service (“Halton Police”), (ii) Detective Constable Craig Fallis (“Fallis”) of the Technological Crime Unit (“TCU”) of the Halton Police, and (iii) Detective Constable Matthew Duncan (“Duncan”), the officer in charge of the investigation.
[5] The applicant, Mr. W., called one witness – Ms. Aniko Kiss (“Kiss”), who without objection from the Crown was permitted to give expert opinion evidence in the fields of (i) information security, (ii) digital forensics, and (iii) computer and mobile device analysis.
The Issues
[6] There are only two issues to decide: (i) section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search or seizure” – was Mr. W.’s section 8 right violated by the police, and (ii) section 24(2) of the Charter provides that evidence that “was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter…shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute” – should the evidence from Mr. W.’s phone be excluded?
The Submissions of Counsel
[7] Both Mr. Smith and Mr. Kraska should be commended for their helpful submissions to this Court. What follows is only an encapsulation of each side’s arguments.
[8] The applicant submits that:
(i) this Court ought not to strain to justify what happened here on January 28 and 29, 2020 on the basis of an after-the-fact search warrant that was later applied for and granted;
(ii) cellular telephones are very private devices;
(iii) the extraction of the raw data from the phone was done without a warrant, and thus, per Hunter et al v. Southam Inc., 1984 CanLII 33 (S.C.C.), the burden rests with the Crown to justify it;
(iv) this Court should conclude that the download of the raw data from Mr. W.’s phone was not justified, and further, the manner of the search was not reasonable;
(v) this Court should find that the unreasonable search by the police actually began with Nadim’s recording of the identifying numbers on the back of the phone post-arrest of Mr. W., at the scene of the arrest;
(vi) this Court should pay particular attention to the decision of Campbell J. in R. v. Powell, 2017 ONSC 6482 (S.C.J.), where His Honour found a violation of section 8 of the Charter and excluded the evidence obtained by the police in their warrantless search of the contents of the accused’s cellular telephone;
(vii) the Crown’s reliance on some distinction between a search and a seizure is, on our facts, irrelevant, especially given their equal protection under the law – R. v. Dyment, 1988 CanLII 10 (S.C.C.);
(viii) in addition to the unconstitutional conduct of the police in downloading the raw data from Mr. W.’s phone, the police violated the accused’s section 8 right in submitting an information to obtain a search warrant that was tardy, misleading, inaccurate, and not in keeping with full and frank disclosure;
(ix) this Court should reject any suggestion that the extraction of the raw data from the phone was done because of something specific to this case or because of some legitimate concern about lost data; rather it was done simply because of a routine pattern of institutional misconduct on the part of the Halton Police;
(x) the police power to search incident to arrest, as explained by the Supreme Court of Canada in R. v. Fearon, 2014 SCC 77 and by Justice Campbell in Powell, supra, has no application here because that power cannot authorize a complete data- dump from a phone and, also, there was no reasonable fear of lost evidence on these facts; and
(xi) on section 24(2) of the Charter, two of the factors under the analysis in R. v. Grant, 2009 SCC 32, the seriousness of the violation and the impact on the Charter-protected interests of the accused, point heavily towards exclusion and, thus, the impugned evidence ought to be excluded.
[9] The Crown submits that:
(i) Dyment, supra is authority for the fact that a seizure is not necessarily a search, and the distinction between the two is important here;
(ii) a seizure is the taking of something, while a search is typically an examination or an inspection of something;
(iii) what happened in our case was a seizure – first a seizure of the actual phone at the scene of the arrest and then an extension of that seizure when the raw data was extracted from the phone the next day;
(iv) paragraph 15 of the decision of the Supreme Court of Canada in R. v. Marakah, 2017 SCC 59 is authority for why the extraction of the raw data from the phone should be considered a part of the initial seizure of the phone itself, as what the police were really after was the data and not the physical object;
(v) section 489(2)(c) of the Criminal Code is authority for the seizure that took place in our case, including the extraction of the raw data from the phone – every police officer may, without a warrant, seize any thing that the officer believes on reasonable grounds will afford evidence in respect of an offence (to paraphrase that subsection);
(vi) section 489(2)(c) is not governed by the common law “plain view doctrine” – R. v. Bottineau, 2011 ONCA 194;
(vii) what occurred in our case is synonymous with taking photocopies of documents or data, to preserve it, in line with Comite paritaire de l’industrie de la chemise v. Potash, 1994 CanLII 92 (S.C.C.), or seizing a computer to preserve its contents, in line with R. v. Vu, 2013 SCC 60;
(viii) either way, the police were validly attempting to preserve the contents of the phone;
(ix) the applicant’s reliance on Powell, supra is misplaced because that decision hinged on the finding of a police “search” of cellular telephone data rather than a “seizure”, and in our case the police did not ever search the raw data until after the search warrant had been granted;
(x) the delay here, between the initial roadside seizure of the phone and the download of its raw data, was justified;
(xi) Nadim’s recording of the identifying numbers on the back of the phone, at the roadside, was not a search but rather part of the seizure of the phone and in compliance with the officer’s duty to take notes and an inventory of what was seized – R. v. Nicolosi, 1998 CanLII 2006 (ON CA) and R. v. Cuff, 2018 ONCA 276;
(xii) there is nothing about the information to obtain the search warrant that would justify the finding of a section 8 Charter violation, and in particular it should not be concluded that Duncan misled the reviewing justice by failing to disclose that the raw data had already been extracted from the phone because there is insufficient evidence to find that he knew that before the application for the search warrant was submitted;
(xiii) in the alternative, if this Court finds that there was a search (as opposed to a seizure), then that search was a valid one incident to arrest, applying the principles in Fearon, supra;
(xiv) Fallis’ notes of the search, if there was a search, were sufficient, as sufficiency of notes of the search is measured in light of the context – R. v. Balendra, 2019 ONCA 68;
(xv) regarding section 24(2) of the Charter, any violation here was not serious and had little impact on the accused, largely because no data from the phone was read or viewed by the police but was merely stored pending the issuance of the search warrant; and
(xvi) on the third prong of the analysis required by Grant, supra, these are very serious charges, and the impugned evidence is agreed by both sides to be crucial to the prosecution, although it is conceded that this Court has virtually no evidence before it on this application in terms of the actual content of what the police discovered on the phone.
[10] In short, the applicant submits that there were multiple violations of his section 8 Charter right and, thus, the evidence obtained from his phone ought to be excluded under section 24(2), while the Crown argues that there has been no violation and, even if there was, the evidence should not be excluded.
II. Analysis
[11] Both sides agree that there is no jurisprudence to directly support the Crown’s submission that the extraction of the raw data from Mr. W.’s phone, by Fallis on January 29, 2020, could be authorized in law by virtue of section 489(2)(c) of the Criminal Code.
The Facts
[12] Most of the facts are not in dispute. We know the following:
(i) Mr. W. was arrested in the parking lot of the probation office on January 28, 2020;
(ii) Mr. W.’s phone had already been the subject of a tracking warrant obtained by the police;
(iii) that phone, ending in the number 6611, was seized by Nadim at the scene, after Mr. W. was arrested;
(iv) Nadim confirmed at the scene that the said phone was the one targeted by the police – he did that by calling the phone and by checking the back of the phone for the identifying numbers;
(v) later in the day, at the police station, Nadim turned the phone over to Duncan (it should be noted that there was more than one cellular telephone seized by the police, but that is not important to the application);
(vi) any extraction of data from the phone, by anyone, before judicial authorization was granted, was certainly not with the knowledge or permission or instruction of Nadim, the supervisor (Nadim made that clear in cross-examination by counsel for Mr. W., and I accept that evidence);
(vii) on January 29, 2020, the day after Mr. W. was arrested, and several days before a search warrant was applied for and ultimately granted, the data from the phone was extracted by Fallis, meaning that everything from the phone was downloaded and saved on the internal memory of the police GrayKey tool and then manually moved over to a Dell data storage server located within the TCU;
(viii) that extraction of data from the phone was done by Fallis, on his own, in accordance with the practice of the TCU (it was not done at the instruction of Nadim or Duncan or anyone else);
(ix) that extraction of data from the phone was done as per a guideline or a standard operating practice of the TCU of the Halton Police, and that guideline or standard operating practice is aimed at preserving the data on the device;
(x) a search warrant for the phone was granted by a judicial officer on February 4, 2020, and on that same day an extraction report was prepared by the TCU;
(xi) Duncan had started writing the application for the search warrant on January 29, 2020 and finished it on February 3, 2020; it was submitted to the justice for review on February 3rd;
(xii) when Duncan first submitted the phone to the TCU, by placing it in a locker on January 28th, it was accompanied by a form completed by Duncan that stated, in part, that a search warrant “will be authored”, as opposed to a statement on the form that a search warrant had been granted (see Exhibit 3);
(xiii) any extraction of data from the phone, by anyone, before judicial authorization was granted, was certainly not at the instruction of Duncan (that was the testimony of Duncan in cross-examination by counsel for Mr. W., and I accept that evidence);
(xiv) the information to obtain the search warrant for the phone, completed by Duncan, contains some errors or omissions: it did not expressly advise the reviewing justice that all raw data from the phone had already been extracted (which was the case when the application for the search warrant was submitted), and it did not state that the phone was not password protected and not locked and not turned off (all uncontroverted facts at the time that the search warrant was applied for), and it gave the wrong time of day for when the phone was lodged in the TCU locker on January 28th;
(xv) the raw data extracted from this phone likely contained personal and identifiable information, and raw data extracted from a device, generally, is capable of being read and viewed, particularly by a trained police officer (I accept that evidence from Ms. Kiss); and
(xvi) even for an unlocked phone that is on airplane mode (as this one was), there is some potential for data loss, for example, there are some applications (like iMessage) that can be programmed to self-delete automatically after a certain period of time (I accept that evidence from Ms. Kiss).
The Legal Principles
[13] In this section, I focus on the law as it pertains to the section 8 Charter analysis. The legal principles that apply to the section 24(2) framework are contained in a later section of these reasons.
Search versus Seizure
[14] In my respectful view, on the issue of whether the police violated Mr. W.’s section 8 Charter right, nothing turns on whether the extraction of the raw data from Mr. W.’s phone is characterized as a “search” or a “seizure”.
[15] Paragraph 25 of the reasons of Justice La Forest in Dyment, supra, are apposite.
- In this case, unlike Pohoretsky, where this was conceded, there was no search. The doctor simply collected that blood as it flowed from an open wound and it was later handed over by him to the [page 431] police officer. It should be observed, however, that s. 8 of the Charter does not protect only against searches, or against seizures made in connect with searches. It protects against searches or seizures. As Errico Co. Ct. J. put it in Milton v. The Queen (1985), 16 C.R.R. 215, at p. 226: “The words are used disjuuntively and although in instances it is a search and seizure that will be under scrutiny as was the situation in Southam, the Charter is worded so that a seizure simpliciter could offend against the section.” See also R. v. Dzagic (1985), 1985 CanLII 2169 (ON SC), 16 C.R.R. 310 (Ont. H.C.). at p.319.
[16] In our case, accepting as this Court does that the police did not examine or inspect, or “search”, the raw data prior to the authorization of the warrant to search, the fact remains that the seizure of that raw data (which might be described as “a seizure simpliciter”) could offend against Mr. W.’s section 8 Charter right.
Section 489(2)(c) of the Criminal Code
[17] Section 489(2) of the Criminal Code describes the circumstances under which a police officer may seize things without a warrant. Among those items that may be seized without a warrant is, under clause (c), “any thing that the officer believes on reasonable grounds will afford evidence in respect of an offence against this or any other Act of Parliament”.
[18] Two things are clear about the authority conferred by section 489(2)(c). First, not all of the requirements of the plain view doctrine need to be met. R. v. T. (R.M.J.), 2014 MBCA 36, and Bottineau, supra. Second, from a plain reading of the legislative provision, it is the seizing officer who must believe, on reasonable grounds, that the seizure will afford evidence of an offence, and the seizure must be for that purpose.
The Requirement for Full and Frank Disclosure in the ITO Process
[19] A very helpful summary of the current state of the law as it pertains to the requirement that a search warrant affiant provide full and frank disclosure to the reviewing justice is found at paragraphs 54 through 66 of the decision of the Court of Appeal for Ontario in R. v. Booth, 2019 ONCA 970.
[54] Obviously, it is imperative that issuing judges or justices have an accurate understanding of the material, known facts available to the affiant officer. If the ITO contains erroneous, incomplete, or dishonest information relating to known information, an issuing judge or justice could be misled, and provide an authorization that should not have been provided. To ensure accuracy, anyone seeking an ex parte authorization, such as a search warrant, is required to make full and frank disclosure of material facts: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 46. This is because an ex parte warrant application is not adversarial. As a corollary of the privilege of being the only party permitted to present evidence in an ex parte application, a search warrant affiant bears the burden of presenting the facts accurately and fairly, from the perspectives of both sides.
[55] Therefore, a search warrant ITO should never try to trick its readers, or offer misleadingly incomplete recitations of known facts, and the affiant officer must not “pick and choose” among the relevant facts in order to achieve a desired outcome: Araujo, at para. 47; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 58. Nor should the affiant officer invite inferences that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed: Morelli, at para. 58.
[56] What, then, is the frame of material information that should be included to make full and frank disclosure? To answer that question, consider what is required to issue a “reasonable and probable grounds” search warrant. For such a search warrant to issue, the grounds for the warrant must be adjudged not only to be probable, but reasonable to rely upon. The ITO affidavit has to disclose what Dickson J. described in Hunter et al. v. Southam Inc. as a “credibly-based probability [that] replaces suspicion”: 1984 CanLII 33 (SCC), [1984] 2 S.C.R 145, at p. 167; see also R. v. Floyd, 2012 ONCJ 417, 263 C.R.R. (2d) 122, at para. 9. As a result, the frame of material information required to achieve full and frank disclosure includes all material information that: (a) could undercut the probability that the alleged offence has been committed; (b) could undercut the probability that there is evidence to be found at the place of the search; and (c) that challenges the reliability and credibility of the information the affiant officer relies upon to establish grounds for the warrant.
[57] Where full and frank disclosure has not been made, a reviewing court will correct the warrant ITO to achieve full and frank disclosure, and then determine based on that corrected ITO whether the warrant could properly have issued if full and frank disclosure had been made. “What is involved is an analysis [of the corrected ITO] to determine whether there remains sufficient reliable information upon which the search authority could be grounded”: R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at para. 45.
[58] Sometimes erroneous information in an ITO will be corrected by simply removing it. Information that should not have been included in the warrant will always be “excised” in this way: Morelli, at para. 45.
[59] Erroneous information that would have been appropriate for inclusion in the ITO if presented accurately will sometimes be corrected by “amplification” so that it can be considered during the sufficiency review. Amplification entails adding information that should have been disclosed in order to give an accurate picture or replacing mistakenly inaccurate information with accurate information. When material information that would hinder a finding of reasonable and probable grounds has been improperly omitted, the ITO must be amplified to include it. However, amplification relating to information that could advance the warrant application is permissible only if the error in not making full and frank disclosure is: (1) a “minor, technical error”; and (2) made in “good faith”: Araujo, at para. 59; Morelli, at para. 41.
[60] Whether the omission satisfies the first of these two amplification prerequisites – the “minor technical error” requirement – depends on the significance and nature of the error.
[61] Errors that have been corrected by amplification include: mistakenly attributing observations to the wrong observer (Araujo, at para. 61; R. v. Lewis, 2012 NBQB 312, 395 N.B.R. (2d) 201, at para. 24); mistaken dates and typographical errors (R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at para. 75; Lewis, at para. 15); and erroneous but unimportant errors in the description of the source of information (R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at pp. 298-299; R. v. Lall, 2019 ONCA 317, 432 C.R.R. (2d) 195, at para. 39; R. v. Van Diep, 2015 BCCA 264, 373 B.C.A.C. 230, at para. 5.)
[62] In contrast, amplification was not available for errors that are too significant to qualify as “minor, technical” errors, including: the failure to identify properly the target unit in a plaza (R. v. Ting, 2016 ONCA 57, 333 C.C.C. (3d) 516, at para. 71); the failure to include information supporting the expertise of a police officer (Morelli, at para. 74); and the failure to provide evidence supporting the provenance and reliability of a document of disputed authenticity (R. v. Voong, 2013 BCCA 527, 304 C.C.C. (3d) 546, at para. 52.)
[63] Where the erroneous information cannot be corrected because the error is not a “minor, technical” one, it is obvious that it must be excised in its entirety. This is because the uncorrected, erroneous information simply cannot be permitted to remain in the ITO, thereby providing an inaccurate boost to the case for reasonable and probable grounds.
[64] The same is true where an officer has not acted in good faith when failing to make full and frank disclosure – the second amplification prerequisite. Given that amplification is confined to “good faith” error correction, it follows that by acting in bad faith, an affiant officer squanders the opportunity to have intentionally misleading information considered in its corrected form by the reviewing judge. The misleading information cannot remain.
[65] In some cases, bad faith on the part of an affiant officer can have an even more profound effect. Where an affiant officer’s failure to make full and frank disclosure is egregious enough to “[subvert] the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like”, a court has the “residual discretion” to set aside the search warrant, even if there would have been reasonable and probable grounds, had there been full and frank presentation of the information: Paryniuk, at para. 69.
[66] To emphasize, “amplification” is to be used to correct “minor, technical” errors caused by a good faith failure to make full and frank disclosure. It is not an opportunity during the search warrant review for the Crown to retroactively add information that it could have included in support of the warrant but failed to do so: Morelli, at para. 42. To permit this would turn the authorization process into a sham: Araujo, at para. 59.
The Legal Principles Applied
Section 8 of the Charter
[20] It is unnecessary for this Court to determine whether Nadim’s recording of the identifying numbers on the back of Mr. W.’s phone, at the scene of the arrest and post-arrest of the accused, was a violation of Mr. W.’s section 8 Charter right.
[21] It is sufficient to ground a section 8 violation to conclude that the extraction of the raw data from Mr. W.’s phone, without a warrant, by Fallis the day after the arrest of Mr. W., was unjustified. This Court makes that conclusion.
[22] It is the Crown’s burden to demonstrate, on a balance of probabilities, that the said warrantless seizure of the raw data was authorized by law (which is one criterion of a warrantless search that is nonetheless held to be reasonable). R. v. Collins, 1987 CanLII 84 (S.C.C.), at paragraphs 22-23.
[23] Here, the only basis advanced by the Crown to justify the warrantless seizure of the raw data is section 489(2)(c) of the Criminal Code. With respect for the able submissions made by Mr. Kraska, this Court rejects that argument, for two reasons.
[24] First, there is good explanation for why neither the Crown nor the applicant could find any decision of any court that applies that legislative provision, section 489(2)(c), to facts at all similar to ours. That explanation is that, although not all of the requirements of the plain view doctrine need to be met in order to rely upon that provision, in reality that provision is generally resorted to in instances where it would make no common sense for the seizing officer to simply leave the item where it is. In other words, this Court could find no decision where the seizure that was sought to be justified by section 489(2)(c) was made with respect to an item already in police custody, as this phone was.
[25] In my view, the provision was simply not meant to justify the warrantless seizure of a thing (raw data from an electronic device) where the thing to be seized (the raw data) comes from an item (the electronic device) that is already in the custody of the police and has been so for an entire day. If that was the case, and if the Crown’s position prevails, then the consequences for our search and seizure laws would be far-reaching.
[26] For example, imagine a scenario where the police have seized a motor vehicle incident to a lawful arrest. The seizure was done without a warrant. The vehicle is in police custody, at the detachment. The vehicle has within it suitcases and bags and containers and briefcases and electronics. Under the Crown’s theory, the police could then, the next day, seize all of those things from the vehicle, remove them, take photographs of them and do other things to preserve their contents, all without a warrant, as long as the police do not actually examine or inspect, or “search”, the inside of the suitcases, bags, containers, briefcases, and electronics. Respectfully, I do not think that would be permissible, whether under section 489(2)(c) or otherwise.
[27] Second, in addition to the above, section 489(2)(c) cannot be relied upon here because there is insufficient evidence before this Court that Fallis (the seizing officer) believed on reasonable grounds that the seizure (the extraction of the raw data from the phone) would afford evidence of an offence and performed the seizure for that purpose.
[28] Rather, based on the evidence of the police officers at the hearing, this Court finds that the seizure of the raw data was done pro forma, as a matter of routine and standard operating procedure of the TCU of the Halton Police, and that the seizure had nothing to do with this specific accused or this specific phone or any specific offence. The evidence of Fallis, in particular, fully supports that finding.
[29] With respect, section 489(2)(c) cannot be used as an after-the-fact justification for a sweeping policy (call it a guideline or standard operating practice if one wishes) of the Halton Police to, without a warrant, perform a complete data-dump of everything on every electronic device that is submitted to the TCU and then save all of the data on a server, potentially forever. This may appear to the reader to address a different criterion of a warrantless search or seizure that is nonetheless found to be reasonable, that is the manner of the search, but it is more basic than that. Such a practice simply cannot fall under the plain wording of section 489(2)(c), which provision requires that the seizing officer believe on reasonable grounds that the thing being seized will afford evidence of an offence. That requirement was not met in this case, given the testimony of Fallis.
[30] Thus, this Court concludes that the extraction of the raw data from Mr. W.’s phone was a warrantless seizure that was not authorized by law, and specifically not authorized by section 489(2)(c) of the Criminal Code, and consequently that seizure amounts to a violation of Mr. W.’s section 8 Charter right to be secure against unreasonable search or seizure.
[31] Regarding the requirement for full and frank disclosure in the context of an application for a search warrant, I conclude that the information to obtain the search warrant (“ITO”) was sloppily drafted in that it contained erroneous information and material omissions, however, on the basis of a corrected ITO this Court concludes that the warrant could properly have issued. Booth, supra, at paragraph 57.
[32] In other words, this Court does not accept the applicant’s argument that there is a separate section 8 Charter violation with regard to the ITO and the warrant that was issued therefrom.
[33] The time of day that the phone was lodged in the TCU locker is a minor or technical matter. Whether the time of day is excised completely from the ITO, or whether the time of day is corrected, makes no difference to the result – the warrant could properly have issued.
[34] The failure of Duncan to advise the reviewing justice that the raw data had already been extracted from the phone, and the confusing nature of paragraph 45 (page 24) of the ITO are more troublesome. This Court finds no bad faith on the part of Duncan, but these two items do amount to a failure on the part of the affiant to provide full and frank disclosure to the reviewing justice.
[35] Again, however, I conclude, on the basis of a corrected ITO, that is one that expressly stated that the raw data had already been extracted from the phone and saved on the TCU’s storage server and, further, that either excised completely paragraph 45 or corrected it to differentiate between Mr. W.’s phone (which was not password protected and not locked and not turned off) and other electronic devices that had been seized and submitted to the TCU, that the warrant could properly have issued.
[36] The failure to advise the reviewing justice about the extraction of the raw data from the phone was understandable, as I accept the evidence of Duncan that, between January 28th and February 4th, he did not speak with anyone in the TCU about whether the phone had been downloaded. Thus, it is likely that he did not realize that the phone had in fact been downloaded at the time that he submitted the ITO – that is why I find no bad faith on his part.
[37] The confusing nature of paragraph 45 of the ITO is also understandable, as the said paragraph was clearly directed at the other electronic devices (and not Mr. W.’s phone) that had been seized and submitted to the TCU for analysis. Duncan was sloppy and careless in not ensuring that the said paragraph would not be capable of being reasonably interpreted as applying equally to Mr. W.’s phone ending in number 6611, but, again, there was no bad faith.
[38] More important, the fact of the completed extraction of the raw data on the phone and the true facts that Mr. W.’s phone was not password protected, not locked, and not turned off would have made no difference to the test for granting the warrant that the reviewing justice was bound to consider, that is (to paraphrase) whether there were reasonable grounds to believe that the thing to be searched would afford evidence of the offences in question.
[39] At its highest, and this is probably improper speculation on my part, the full and frank disclosure might have caused the reviewing justice to query whether the police had acted improperly in already downloading the raw data without a warrant, but even if the reviewing justice made that query, and even if the reviewing justice answered that query in the affirmative, the warrant to search still could properly have issued. The fight about the propriety of the warrantless extraction of the raw data would have been left to another day and another venue, which venue has turned out to be this Court.
[40] Carelessness, and that must be discouraged in the strongest terms, but not more than that.
Section 24(2) of the Charter
[41] First, I wish to observe that whether Nadim’s recording of the identifying numbers on the back of Mr. W.’s phone, at the scene of the arrest, was an unreasonable search or seizure makes no difference to this Court’s analysis under section 24(2) of the Charter. Thus, I repeat, it is unnecessary to decide that issue.
[42] In terms of the law, though it is well-settled, too often, in my respectful view, the section 24(2) Charter analysis does not get enough attention. It should not be done in a perfunctory manner. In a very recent decision of the Court of Appeal for Ontario, R. v. Scopel-Cessel, 2022 ONCA 316, there are some helpful passages. They are set out below, at paragraphs 49-56.
[49] Having concluded that there was a detention, and a breach of the appellant’s Charter rights, the question then becomes whether the evidence collected ought to be excluded under s. 24(2). The three factors to be considered in this analysis are also set out in Grant: (i) the seriousness of the Charter-infringing state conduct; (ii) the impact on the Charter-protected interests of the accused; and (iii) society's interest in an adjudication on the merits.
[50] On the seriousness of the Charter-infringing state conduct, I conclude that this was a serious breach. I have already said that I reject the notion that the police conduct in this matter was undertaken to expedite and protect the integrity of their search. There was no urgency that would attenuate the seriousness of the breach in this case: R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297; Grant, at para. 75. The search would not have been negatively impacted, in any way, by the police advising the appellant that he was detained and providing him with his rights to counsel. The home was secure, the inhabitants identified, and the computers located. There was nothing that the appellant could have done to interfere with the search or to destroy evidence.
[51] Under this factor, I would add another consideration and that is that the Durham Regional Police Service was the same police service involved in McSweeney. The fact that the same Charter breach has occurred might suggest that the police have either not taken, or have not accepted, guidance from this court on the type of conduct that gives rise to a detention and thus adopted the necessary and appropriate steps to inform citizens involved of their rights. That adds a troubling aspect to the seriousness of the breach.
[52] On the second factor, the impact on the appellant’s Charter-protected interests was significant. As McLachlin C.J. and Charron J. said in Grant, at para. 76:
The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
[53] The appellant was detained in his home and questioned about serious offences without being told that he had the right to consult counsel. This was a significant incursion on the appellant’s Charter-protected right against self‑incrimination. Indeed, when the appellant was eventually told of his right to consult counsel, he immediately asked to do so. While the detention was occurring, the police obtained significant incriminating evidence against the appellant, including the password for the computer on which the child pornography was found.
[54] On the third factor, there is no dispute that these were very serious offences and that the evidence was central to their successful prosecution. However, as Doherty J.A. noted in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63: “[i]f the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility.”
[55] I would add to that the fact that the seriousness of the offence cuts both ways. Society “has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high”: Grant, at para. 84. For this reason, the long-term repute of the justice system also favours exclusion.
[56] Accordingly, I would exclude the evidence found on the computer and all of the statements made by the appellant. Since there is no other evidence on which to found convictions, acquittals on the charges must follow.
[43] Applying the law to our facts, I conclude as follows.
[44] On the seriousness of the Charter-infringing state conduct, this Court would characterize the state’s violation of Mr. W.’s section 8 Charter right as being very serious.
[45] Although I find no bad faith on the part of the authorities, the habitual nature of the practice of the Halton Police to conduct a complete data-dump of all content of all electronic devices that come into the possession of the TCU, whether a warrant exists or not or even whether a warrant is being applied for or not, makes the violation more serious. “Systemic or institutional abuse of constitutional rights may be an aggravating factor rendering police misconduct more serious”, and I find that to be the case here. R. v. McGuffie, 2016 ONCA 365, at paragraph 67.
[46] In addition, although not itself an independent violation of section 8 of the Charter, the less than full and frank disclosure of the facts as contained in the ITO serves to heighten the seriousness of the state misconduct.
[47] The first Grant factor weighs in favour of exclusion of the evidence.
[48] On the impact on the Charter-protected interests of the accused, this Court would characterize the impact of the state’s misconduct on Mr. W.’s constitutional rights as being minimal.
[49] Although he ought not to have had his private cellular telephone data seized and stored on a police server for several days, without judicial authorization, I find as a fact that no police officer reviewed, examined, or searched the data in any way, even in a perfunctory manner, before the warrant was granted.
[50] There is no fixed list of considerations that may serve to inform a judge’s assessment of the second Grant factor, but my review of the jurisprudence, in the context of a search or seizure case, suggests that some of the considerations include (i) the degree of privacy interest in the item/place seized or searched, (ii) the degree of intrusiveness of the seizure/search, (iii) whether other breaches cascaded from the initial violation, and (iv) whether the seizure or search impacted the accused’s bodily integrity or personal dignity. R. v. Just, 2020 ONCA 362, at paragraphs 25-54.
[51] Here, although not a residence, I accept that Mr. W. had a high privacy interest in the content of his phone. The other considerations listed, however, point in favour of a finding that the impact on Mr. W.’s Charter-protected interests was not significant but rather was minimal. There was no search of the data. There were no other violations that stemmed from the initial state misconduct. And the violation did not involve any insult to Mr. W.’s bodily integrity or personal dignity.
[52] I might add that the violation also did not cause any prejudice to Mr. W. in the sense of him having lost an opportunity to get his phone back or seek legal advice in that regard; the phone itself was validly seized and would have remained in police custody pending judicial review of the application for the search warrant.
[53] The second Grant factor weighs in favour of admission of the evidence.
[54] On society’s interest in an adjudication on the merits, there is no question that Mr. W. is facing very serious charges, and a number of them, involving, just in Oakville, an armed and violent home-invasion style robbery. Society has a high interest in having such serious offences tried on their merits.
[55] Regrettably, the prosecution did not file with this Court the content of the data extracted from Mr. W.’s phone, or a summary of it, so that I could determine the overall importance of the evidence to the Crown’s case. That was, with respect, a mistake. As a general rule, the Crown should always present evidence on a Charter voir dire to inform the presiding judge of what is being sought to be excluded, as otherwise there is a missing component of the section 24(2) analysis.
[56] In any event, this Court can safely conclude that the impugned evidence is important, likely critical, because the accused, in his application dated May 24, 2022, expressly states that “[t]his evidence makes up all of the Crown’s evidence against the Applicant, therefore after exclusion, an acquittal should be entered”.
[57] The third Grant factor weighs in favour of admission of the evidence. “In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see, e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones (2011), 107 O.R. (3d) 241, [2011] O.J. No. 4388, 2011 ONCA 632, at paras. 75-103; Aucoin, at paras. 45-55”. McGuffie, supra, at paragraph 63.
[58] This is one such case. The third factor tips the balance in favour of admission. On the overall balancing, I am not satisfied that the admission of the impugned evidence would bring the administration of justice into disrepute.
III. Conclusion
[59] As stated earlier in these reasons, there are only two issues to decide: (i) section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search or seizure” – was Mr. W.’s section 8 right violated by the police, and (ii) section 24(2) of the Charter provides that evidence that “was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter…shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute” – should the evidence from Mr. W.’s phone be excluded?
[60] The answer to the first question is yes. The answer to the second question is no. The warrantless extraction of raw data from Mr. W.’s phone was an unreasonable search or seizure and a violation of the accused’s section 8 Charter right. The evidence, however, should not be excluded under section 24(2).
[61] The application is, therefore, dismissed.
Conlan J.
Released: July 27, 2022
COURT FILE NO.: CR-21-53
DATE: 2022-07-27
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
J.W.
REASONS FOR DECISION ON S.8 CHARTER APPLICATION
Conlan J.
Released: July 27, 2022