OSHAWA COURT FILE NO.: CR-21-15565
DATE: 2022 08 09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Ngai On Young, Sean M. O’Neill, for the Crown
Respondent
- and -
JEFFREY WELDON
Thomas F. Balka and Nathaniel Spear-Balka, for the Applicant
Applicant
HEARD: June 16, 2022
REASONS for decision ON SECTION 8/24(2) APPLICATION
LEIBOVICH J.
[1] Jeffrey Weldon is charged with manslaughter and indignities to a dead human body in connection with the death of Melanie Vachon. On June 19, 2018, Mr. Weldon gave a polygraph test to the police. The interviewer believed that Mr. Weldon was deceitful during that test. After the test, Mr. Weldon was interviewed and confronted with the police’s view that he was not telling the truth and was, indeed, involved in Ms. Vachon’s death. After the interview, the police seized Mr. Weldon’s phone, as they were concerned that he would delete items on the phone. Seven days later, the police obtained a search warrant to search the contents of the phone and a production order for the phone’s tower records, amongst other things.
[2] Mr. Weldon has brought a motion to have the results of the search of his cell phone and the tower records pertaining to that cell phone excluded pursuant to s. 24(2) of the Charter of Rights and Freedoms, 1982, c 11 [“Charter”]. Counsel for Mr. Weldon submits that the search of the phone and the obtaining of the tower records resulted from the police’s illegal warrantless seizure of Mr. Weldon’s cell phone and should be excluded. The Crown submits that the seizure was justified as there were exigent circumstances. If there was a breach the results of the search of the cell phone should not be excluded pursuant to s. 24(2). The Crown submits that the tower records obtained from the production record should be admitted, as they have nothing to do with the seizure of the phone, and are not evidence obtained from a Charter breach.
[3] This application raises the following question:
Were there exigent circumstances to justify the seizure of Mr. Weldon’s phone on June 19, 2018?
If Mr. Weldon’s s. 8 rights were breached, should the subsequent search of the phone be excluded pursuant to s.24(2) of the Charter?
If Mr. Weldon’s s. 8 rights were breached, should the tower records be excluded pursuant to s. 24(2) of the Charter?
[4] For the reasons set out below, my answer to these questions is as follows:
The June 19th, 2018 seizure of Mr. Weldon’s phone breached his rights under s. 8 of the Charter.
Applying and balancing the factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353, the results of the subsequent search of the phone should not be excluded pursuant to s. 24(2) of the Charter.
The tower records are not evidence that were obtained in a manner that infringed the Charter. Therefore, s. 24(2) does not apply and the tower records should be admitted. If I am wrong in this regard, then applying and balancing the factors set out in R. v. Grant, the tower records should not be excluded pursuant to s. 24(2) of the Charter.
Factual Overview
[5] There is no dispute that on June 19, 2018, Mr. Weldon underwent a polygraph and post polygraph interview by the police, conducted by Officer Mitten. At 6:09 pm, Mr. Weldon was escorted out of the interview room and his phone was seized. Subsequently the police obtained a search warrant and analyzed the phone.
[6] Detective Sergeant Dennis was the officer in charge. He testified regarding the circumstances leading up to the seizure of the phone. His plan for the day depended on the results of the polygraph interview and what happened during the post polygraph interview. From Detective Sergeant Dennis’ perspective, different results would lead to different decisions. His plan was as follows:
If Mr. Weldon passed the polygraph, the police would not seize his phone;
If Mr. Weldon left after the polygraph, irrespective of whether he passed and failed, and was not subject to the post-polygraph confrontational interview, then the phone would not be seized. [A confrontational interview is when facts of the case are used to extract information from the witness];
If the results of the polygraph were inconclusive, but Officer Mitten confronted Mr. Weldon in the interview and commented about the phone, the police would seize the phone. The concern by police was that Mr. Weldon would delete information from the phone. During Mr. Weldon’s June 6th, 2018 interview with the police, he stated that he had deleted messages from Ms. Vachon’s phone; and
If Mr. Weldon failed the polygraph and was subject to a confrontational interview, the police would seize the phone.
[7] Officer Mitten, who conducted the June 19th, 2018 polygraph test, informed Detective Sergeant at 3:15 pm that, in his view, Mr. Weldon was deceptive with respect to two questions: 1) the cause of Ms. Vachon’s death, and 2) what was covering Ms. Vachon. Detective Sergeant Dennis believed that Mr. Weldon was now a suspect. After the confrontational interview with Officer Mitten was concluded, Mr. Weldon was escorted to the lobby and his phone was seized. The phone was placed in a sealed property bag in a police locker. The contents were not examined until after a warrant was obtained. The warrant was obtained on June 26, 2018.
[8] Detective Sergeant Dennis agreed that he could have started the process regarding obtaining a tele-warrant during the confrontational interview, but it was unknown if he would be able to obtain a tele-warrant on time.
[9] He agreed, during cross-examination, that the critical piece regarding the decision to seize the phone was whether Officer Mitten explained the importance of the phone evidence during the course of the post polygraph interview. Officer Mitten had a choice regarding whether he mentioned the phone to Mr. Weldon or not.
[10] Detective Sergeant Dennis testified that he seized the phone in advance of obtaining a search warrant as he believed there were exigent circumstances and seizing the phone was necessary to prevent the destruction of evidence.
The Information to Obtain
[11] On June 26, 2018, Detective Rose obtained search warrants and production order for a number of items including:
Electronic data on the LG cell phone seized from Mr. Weldon;
Electronic data from the devices seized from the warrant executed at 110-700 Dunlop Street West, Whitby on June 5th, 2018;
Production Order for Ms. Vachon’s bank records;
Production Order for Toll records for (289) 992-8101 (Mr. Weldon) from Freedom Mobile;
Production Order for Toll records for (289) 927-2949 (Ms. Vachon) from Rogers Communication.
[12] Detective Rose used a common Appendix (Appendix “C”) for the warrants but set out different grounds with respect to the Grounds to Believe the Items Sought will Afford Evidence. Detective Rose set out the ground he had to believe that phone number 289-992-8101 belonged to Mr. Weldon. The section reads as follows:
Summary of Belief Jeffrey WELDON Had Phone Number 289-992-8101 Assigned to Himself
- I believe, at the time Melanie VACHON went missing, prior to when she went missing and subsequent to this incident, Jeffrey WELDON had a cellular phone with phone number 289-992-8101 assigned to him. Below, I will provide information which proves my belief;
a. On the Durham Regional Police local system, there are several entries for Jeffrey WELDON. There are contact phone numbers listed for WELDON, which include 289-992-8101.
b. I read a supplementary report, authored by Detective TRAYNOR, who advised she attempted to contact WELDON, to notify him of the death of Melanie VACHON.
Detective TRAYNOR contacted WELDON on his phone number, 289-992-8101. There was no answer. Contact was made with WELDON and he was notified of the death of VACHON. WELDON called Detective TRAYNOR back using a second phone number, 289-668-2933.
c. I read a report from Detective TRAYNOR, dated June 9, 2018, where she had received two voicemail messages from Jeffrey WELDON. In the report, Detective TRAYNOR noted the calls received from WELDON came from phone number 289-992-8101.
[13] Officer Rose explained that he was seeking Tower Site information from Freedom mobile, the phone’s provider, for Mr. Weldon’s 289-992-8101. The information to obtain reads:
Obtaining Sector Information from Tower Site Data
I believe obtaining the specific sectors from the tower site data may provide Information which will further the investigation and provide evidence of the offences. Cellular networks operate with the use of towers, which transmit the signal between cellular devices, through a network. The signal for each call or text message from a device is transmitted on towers which are nearby the device. In order to narrow the focus of Where the device is located, police can request the sector of the tower, which will provide information of the direction the device is from the associated tower.
By obtaining this information, investigators can obtain data which will assist in determining a more accurate location of a device during specific times of this incident I will be seeking sector information for the phone numbers of VACHON and WELDON in this application. I believe the requested information is reasonable and is not intrusive in nature.
Cellular phone towers contain quadrants or sectors. By obtaining sector information from cellular phone providers, police can determine a more precise location of a specific-cellular device by obtaining the sector information associated to the tower site information.
Law and Analysis
Issue 1: Were there exigent circumstances to justify the seizure of Mr. Weldon’s phone on June 19, 2018?
[14] Section 487.11 of the Criminal Code (R.S.C., 1985, c. C-46) allows a police officer to conduct a search and seizure providing the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would be impracticable to obtain a warrant. In R. v. Kelsey, 2011 ONCA 605, 280 C.C.C. (3d) 456, Justice Rosenberg described the nature of the exigent circumstance power. He said, at para. 35:
However, whether exigent circumstances are invoked to search for evidence or to protect the public or for officer safety, it is the nature of the exigent circumstances that makes some less intrusive investigatory procedure insufficient. By their nature, exigent circumstances are extraordinary and should be invoked to justify violation of a person's privacy only where necessary….
In order to invoke the power, the police must have the requisite grounds to conduct the search. As stated in R. v. Kelsey, at para. 25:
In my view, the premise underlying the exigent circumstances doctrine where there is an imminent risk of loss or destruction of evidence is that, if time permitted, the police could have obtained prior authorization, usually in the form of a search warrant.
[15] In this case, there is no dispute that the police had the requisite ground to search Mr. Weldon’s phone. The dispute is whether there existed exigent circumstances.
[16] The defence questions whether there was a real concern that Mr. Weldon would destroy evidence from the phone. But more critically, the defence submits that the impetuous for this concern was the police’s own conduct during the confrontational interview. The defence submits that the police cannot create a situation of exigency and then rely on that exigency to justify their actions. The defence, in his factum, submits that a tele-warrant could have been obtained. In oral submissions, defence counsel softened his position and agreed that, given that the interview with Mr. Weldon was not completed, it would be impractical to have obtained a tele-warrant. However, defence counsel stressed that police knew the risk in having the interview conducted as it was and they have to live with it. The Crown submits that “In the totality of circumstances, the police had a legitimate concern about preservation of evidence. Their belief that exigent circumstances existed was reasonable and supported by [the] evidence.”
[17] I agree that the police had a reasonable basis to be concerned that Mr. Weldon would delete evidence from the phone. I also agree that a tele-warrant was not practical. Even though Detective Sergeant was informed at 3:15 pm that Mr. Weldon was noted as being deceptive, the confrontational interview took place afterwards, and it was the nature of that interview which would direct whether the police felt that there were exigent circumstances. However, I agree with the defence that the police created this situation. As stated by Hill J. in R. v. N.N.M, 2007 CanLII 31570 (ON SC), [2007] O.J. No. 3022 at para. 232:
As a general rule, the existence of exigent circumstances cannot be justified on the basis of the police operationally causing an emergency. In other words, as observed in R. v. Burlingham (1993), 1993 CanLII 6884 (BC CA), 85 C.C.C. (3d) 343 (S.C.C.) at 407, exigency cannot be justified where "the police created an artificial situation of urgency".
[18] While I understand the logic of not wanting to handcuff Officer Mitten, who was conducting the post polygraph interview, the police ran the risk of alerting Mr. Weldon to potential evidence on the phone and creating the risk of destruction. This is not the type of situation that the exigent circumstances was meant to create. Mr. Weldon’s s. 8 rights were breached.
Issue 2: Should the subsequent search of the phone be excluded pursuant to s. 24(2) of the Charter?
[19] The Crown intends, at this stage, plans to play a video found on the phone at trial.
[20] The s. 24(2) analysis is contextual and must account for all the circumstances. The key to the s. 24(2) analysis is the balancing of the following factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on the merits. Section 24(2) does not create an automatic exclusionary rule when evidence is obtained in breach of a Charter right. The accused bears the onus of establishing that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute; R. v. Tim, 2022 SCC 12, 467 DLR (4th) 389 at para. 74 and 75., R. v. Grant, 2009 SCC 32, [2009] S.C.R. 353, at para. 71.
The Seriousness of the Charter-Infringing State Conduct
[21] The task with respect to this factor is to situate the state conduct on a scale of culpability. In assessing the seriousness of the conduct, the Supreme Court in R. v. Grant at paras. 74 and 75 provided the following guidance:
State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a willful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.
Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, per Cory J. "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.
[22] In my view, there was no bad faith by the police. I do not accept the defence submission that the police acted in a cavalier manner. It is evident that the police thought through the various scenarios to see if and when it would be necessary to seize the phone in advance of a search warrant. I found that the police were wrong in their understanding of exigent circumstances. The police did not look at the contents of the phone pending the warrant. They simply sealed it and put it in the locker room and subsequently obtained a search warrant. This, in my view, does not suggest a police service that was cavalier or indifferent to Mr. Weldon’s Charter rights.
[23] The police should have waited to obtain the warrant before seizing the phone. There is no issue that they had the requisite grounds to search and seize the phone. As I said there was no deliberate misconduct but a mistake in judgement by the police. However, the police should know the law. In my view, this factor tilts slightly in favour of exclusion.
The Impact of the Breach on the Charter-Protected Interests of the Accused
[24] The second line of inquiry demands a consideration of the seriousness of the breach from the perspective of the accused. The impact of a breach may range from fleeting and technical to profoundly intrusive.
[25] In this case, the impact of the breach on Mr. Weldon’s Charter protected interests is almost no existent. The police did not examine the phone until after the search warrant was issued. While the police seized the phone, the police did not violate his informational privacy. Apart from the premature seizure of the phone, the defence takes no issue that the search warrant was validly issued. As stated by Doherty J.A. in R. v. Boutros, 2018 ONCA 375, 361 C.C.C. (3d) 240 at para. 38 “...the interference with an accused's privacy rights will necessarily diminish if the immediate cause of the state intrusion into that privacy is a lawfully issued warrant or production order: Plant, at pp. 300-301.” The defence submits that the phone is critical to everyday life. There was no evidence that Mr. Weldon was inconvenienced by the premature seizure of the phone.
[26] In my view this factor militates in favour of inclusion.
Society's Interest in the Adjudication of the Case on the Merits
[27] The Crown seeks to introduce a video that was found on the phone. The Charter breach did not lead to the creation of the evidence. The video was created before any police involvement. This factor favours inclusion.
The Balancing
[28] The s. 24(2) analysis requires a balancing of all these factors and all these circumstances. There are no automatic rules, there is no mathematic formula. As stated by the Court of Appeal in R. v. Thompson, 2020 ONCA 264, 62 CR (7th) 286 at paras. 106 and 107:
The final step under the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision: Harrison, at para. 36.
[29] In my view, having considered these three factors, the evidence obtained from Mr. Weldon’s phone should not be excluded. The police made an error in judgement. The phone was seized, but not searched, until after the search warrant was issued. The police did not violate Mr. Weldon’s informational privacy. The Charter breach did not create the evidence at issue. The video captured on the phone that the Crown wishes to introduce is real evidence that was created before any police involvement. The admission of the evidence would not bring the administration of justice into disrepute.
Issue 3: Should the tower records be excluded pursuant to s. 24(2) of the Charter?
Were the tower records “obtained in a manner”?
[30] Section 24(2) of the Charter states:
Where, in proceedings under section (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[31] The defence submits that s. 24(2) is engaged with respect to the tower records because the obtaining of the production order was part of the investigative process that began with the unlawful seizure of Mr. Weldon's phone. Defence submits that they are temporarily and contextually connected. The defence agrees that the s. 8 breach did not cause or create the records, but that is not a necessary prerequisite. The Crown submits that there is no temporal connection between the seizure of the phone and the creation of the “toll records” themselves. They are entirely different transactions. The “tower information” is generated and maintained by Freedom Mobile from equipment operating in its cellular network. Both the Crown and the defence rely on the Court of Appeal’s decision in R. v. Boutros.
[32] Recently, the Supreme Court of Canada in R. v. Tim summarized the law regarding when evidence should be considered having been obtained in a manner that infringed the Charter. Jamal J., speaking on behalf of the majority, stated at para. 78:
This Court has provided guidance as to when evidence is “obtained in a manner” that breached an accused’s Charter rights so as to trigger s. 24(2):
The courts take “a purposive and generous approach” to whether evidence was “obtained in a manner” that breached an accused’s Charter rights (R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38).
The “entire chain of events” involving the Charter breach and the impugned evidence should be examined (R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 1005-6).
“Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct” (Mack, at para. 38; see also Wittwer, at para. 21).
The connection between the Charter breach and the impugned evidence can be “temporal, contextual, causal or a combination of the three” (Wittwer, at para. 21, quoting R. v. Plaha, (2004), 2004 CanLII 21043 (ON CA), 189 O.A.C. 376, at para. 45). A causal connection is not required (Wittwer, at para. 21; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 83; Strachan, at pp. 1000-1002).
A remote or tenuous connection between the Charter breach and the impugned evidence will not suffice to trigger s. 24(2) (Mack, at para. 38; Wittwer, at para. 21; R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, at para. 40; Strachan, at pp. 1005-6). Such situations should be dealt with on a case by case basis. There is “no hard and fast rule for determining when evidence obtained following the infringement of a Charter right becomes too remote” (Strachan, at p. 1006). [cites omitted]
[33] In R. v. Boutros, Doherty J.A., speaking on behalf of the Court, stated that the trial judge in that case should have determined whether any of the Charter breaches that occurred before the police obtained the text messages under the authority of the lawful production order were integral to the investigative process that ultimately led to the acquisition of the text messages by the police. He said that it was not enough that a Charter breach occurred during the same investigation that yielded text messages. He found that the police’s demand of the accused to provide them with his password without giving him an opportunity to contact counsel was a breach that was integral to obtain the eventual production order. Doherty J.A. stated at para. 27:
…..I come to the opposite conclusion in respect of the police demand that the appellant provide his password for the cellphone. The police were obligated to give the appellant an opportunity to speak to counsel before deciding whether to give the police his password. The failure to give the appellant that opportunity resulted in a breach of s. 10(b): R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 50. That breach was integral to police efforts to obtain the contents of the text messages, which were eventually produced under the production order. This s. 10(b) breach is sufficiently connected to the text messages to trigger s. 24(2).
[34] In my view, the Tower records were not obtained in a manner that infringed the Charter. I agree that Detective Sergeant Dennis headed the same investigative team that seized the phone and then sought to obtain the production order. The most that can be said is that the tower records were obtained in the same investigation where the phone was seized. The tower records are separate from the contents of Mr. Weldon’s cell phone. They have nothing to do with the physical phone. The seizure of the cell phone provided no information that was used in the production order to obtain the records. Specifically, the actual number attached to the phone was obtained from other sources. The fact that the police – after the phone was seized – decided to obtain a search warrant to look at the phone and a production order for Freedom Mobile to obtain the Tower records does not make the seizure of the phone an integral part obtaining the Freedom Mobile records just as it does not make the seizure of the phone an integral part of obtaining the bank records for which a production order was also sought. Remote or tenuous connections between the Charter breach and the impugned evidence will not suffice to trigger s. 24(2); R. v. Tim.
[35] If I am wrong and the evidence was obtained in a manner that infringed the Charter, then I find that applying the test in R. v. Grant, the tower records should be admitted. My findings, at paragraphs 22,23,25 and 26 with respect to the “the seriousness of the Charter-infringing state conduct” and the “The impact of the breach on the Charter-protected interests of the accused”, apply with equal if not greater force with respect to the tower records. Regarding society’s interest in the adjudication of the case on the merits the tower records are a critical part of the Crown’s case. They are real evidence that existed before and independent of any Charter breach. This factor strongly tilts towards inclusion. The police made an error in judgment in seizing the phone but they then obtained a valid production order without the benefit of any information garnished from the phone and obtained the pre-existing records from the phone provider. Balancing all of the factors, the admission of the tower records would not bring the administration of justice into disrepute.
Conclusion
[36] The application to exclude evidence found on the cell phone and the tower records is dismissed.
Justice H. Leibovich
Released: August 9, 2022
OSHAWA COURT FILE NO.: CR-21-15565
DATE: 2022 08 09
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
– and –
JEFFREY WELDON
Defendant
REASONS FOR RULING ON
LEIBOVICH J.
Released: August 9, 2022