COURT FILE NO.: CR-21-1278 DATE: 20230222

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

SIMON BRIDLE Defendant/Applicant

COUNSEL: Daniel Galluzzo, for the Crown M. Danielle Cunningham and Adam White, for the Defendant/Applicant

HEARD: January 16-20, 26, 27 and February 3, 2023

RESTRICTION ON PUBLICATION Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner.

REASONS FOR DECISION RE: Application under s. 8 of the charter – exclusion of texts and identification evidence

DE SA J.:

[1] The Applicant is charged with offences pursuant to s. 286.1, specifically obtaining sexual services for consideration.

[2] In the course of interviewing the Complainant, the police asked to take photographs of the Complainant’s text messages with the Applicant. The Complainant consented to the text messages between herself and the Applicant being photographed by police.

[3] During the course of the same interview, the Complainant provided a description of the Applicant and indicated that she would be able to recognize him if shown a picture. Upon viewing a singular photograph shown by police, the Complainant confirmed that the person in the photograph was the person she knows as “Chris”, but believed his true identity to be the Applicant, Simon Bridle.

[4] The Applicant submits that by photographing the text messages without prior judicial authorization, or without the consent of the Applicant, the police obtained the evidence in violation of the Applicant’s s. 8 Charter rights and asks that the texts be excluded at trial.[^1]

[5] The Applicant also argues that the showing of a single photograph, and otherwise failing to engage in a standard “photo line-up” served to permanently taint the value of any identification evidence the Complainant might have to offer.

[6] This includes a photograph the Complainant herself provided to police a few days later of the person she knew as “Chris” - taken from social media (Facebook). According to the Applicant this “independent research” served to further permanently taint, by way of singular focus, the value of any identification evidence the Complainant might have to offer, then or in the future.

[7] The Applicant asks that the texts and the photos shown to the Complainant be excluded at trial.

[8] On February 3, 2023, I dismissed both applications with reasons to follow. These are my reasons.

Statement of Facts

[9] In the summer of 2019, police began investigating the Applicant in a separate and unrelated investigation. He was placed under surveillance, both electronically and in person.

[10] As a result of the electronic surveillance, on or about September 3, 2020, the Applicant was intercepted communicating with the Complainant. It was believed that the Applicant was looking to purchase sexual services from the Complainant.

[11] As the police continued surveillance on the Applicant, he was observed meeting the Complainant. Specifically, the Applicant was observed entering a hotel room rented by the Complainant, and thereafter observed leaving the room approximately one hour later.

[12] There was no surveillance, neither audio, video nor in person, of the events inside the hotel room, and the Applicant left the location immediately following his leaving the room.

[13] The Complainant remained, and two other individuals, subsequent to the Applicant and each other respectively, were observed similarly entering the room rented by the Complainant and leaving approximately one hour later.

[14] Police decided to make attempts to reach out to the Complainant, L.J., regarding the meeting with the Applicant on September 3, 2020. Given the intercepted communications from that day, the Applicant was believed to be using the name “Chris” in his dealings with the Complainant.

[15] At the direction of the Detective Staff Sergeant (DSS) Patton, Detective Sergeant Kouri and Detective Span were tasked to interview L.J. about a client named “Chris” that she saw on September 3, 2020.

[16] DSS Patton requested that the officers obtain the “context” surrounding the meeting and to ask about her relationship with “Chris”. More specifically, the officers were tasked to inquire about:

a. Whether she provided sexual services to “Chris”?

b. What acts? Did he pay?

c. How much?

d. How often had she serviced him in the past? Regular?

e. Did he indicate or does she know what is his job?

[17] If possible, DSS Patton requested an audio recording to be made of the interview. A video statement was not required.

[18] On September 10, 2020, Detective Span made contact with L.J. by phone and was able to arrange a meeting with her in person that same day. Detective Sergeant Kouri and Detective Span met with L.J. at a hotel in Toronto. L.J. provided an audio-recorded statement.

[19] During the interview, the officers advised L.J. that they wanted to talk to her about a client named “Chris” that she saw the previous Thursday at the Sheraton Hotel. L.J. replied, “Chris, an English guy?” seeming to know who the police were talking about. She explained that September 3 was the first time she had seen “Chris” in a while.

[20] L.J. explained that she used to see him about once a month for a couple of months, then he just “disappeared”. She indicated that she first started seeing “Chris” over a year ago before the pandemic. She told the officers that she had his contact information in her cellphone. L.J. described “Chris” as short, fit, “a little stocky”, with a greyish beard or goatee.

[21] “Chris” stood out to L.J because he has an English accent and L.J. shares a similar background. She said that they would have a good laugh. L.J. told the officers that she would know exactly who “Chris” was if she saw a photograph of him.

[22] L.J. confirmed that “Chris” paid for sexual services. She said that there were no “party favours” like drugs. She stated that she has abstained from alcohol for many years.

[23] After L.J. spoke to the officers about her interactions with “Chris”, the officers showed her a single photograph of “Chris”. She confirmed that this was the same person that she had been talking about and knew to be “Chris”. However, she said that he looks a bit older and thinner now in contrast to the photograph.

[24] L.J. offered to retrieve her cellphone to assist her in answering the officers’ questions. She asked the officers if it would help them if she provided the exact date that she last saw “Chris”. She also asked if they wanted his cellphone number, which she provided to them.

[25] Using her cellphone, L.J. advised the officers that she most recently saw “Chris” on September 3, 2020. Prior to that, she saw him in January 2019. The first time she saw “Chris” was on September 12, 2018. She also indicated that an app on her cellphone reveals “Chris’s” true name as “Simon Bridle”.

[26] During the course of her conversations with the Complainant, Detective Span noticed that L.J. was reviewing various text messages of her conversations with “Chris”. Detective Span sought L.J.’s consent to take pictures of her messages with “Chris”. L.J. agreed.

[27] L.J. was advised that she does not have to allow the police to take photographs of her messages and that she could say no. L.J. said although the officers are lovely people, she did not want the police following her around and asking her more questions; she would rather just give them what they need.

[28] Detective Span addressed L.J.’s comments and reaffirmed that L.J. was under no obligation to provide her consent, stating “[Y]ou don’t have to do this… We’re not forcing you to do this… You can say no and we’re not going to follow you around. We’re not going to coerce you into giving this stuff.” L.J. understood what Detective Span was telling her; however, she replied, “[B]ut I mean you need this, right…?” Detective Span confirmed that it was the best evidence.

[29] L.J. said that she wanted to make sure that “this guy isn’t a nutter” and would not know that she provided the text messages to the police. Detective Span advised L.J. that “Chris” could get disclosure if he is subsequently charged with offences. Detective Span also told L.J. that the police could not promise her anonymity.

[30] L.J. permitted Detective Span to take photographs of the text messages. As Detective Span took photographs of L.J.’s text messages, L.J. made remarks about some of the messages. For example, she commented that “Chris” referred to himself as “Simon” and explained that he provided her with details about a butcher shop. She also asked Detective Span if he wanted to take a picture of “Chris’s” number.

[31] L.J. described her relationship with “Chris” as being a good one. They would talk about the boat that he purchased, food, their similar backgrounds, and his daughters. L.J. considered “Chris” to be nice, saying that he never gave her any problems. L.J. did not know any of his friends.

[32] L.J. explained that “Chris” would usually see her around 1:00 p.m. He would pay her in cash. She believed that he contacted her from her website. “Chris” normally would book for 90 minutes, but last week was only an hour.

[33] At the end of the interview, L.J. asked the officers if they wanted her to see “Chris” again, presumably to further assist with the investigation. Detective Span advised L.J., “We’re not asking you to do anything”. When asked if the officers could contact her if they had any more questions, L.J. said “Absolutely”.

[34] After providing the information received to DSS Patton, Detective Span was asked by DSS Patton to have the Complainant come in again to have the statement sworn.

[35] Detective Span re-interviewed L.J. on September 15, 2020. Detective Span reviewed a summary of L.J.’s prior statement with her and went over a K.G.B. form. L.J. confirmed that she wished to provide a statement and promised to tell the truth. She asked whether other witnesses ask to have lawyers look over the K.G.B. form. Detective Span advised L.J. that she could talk to a lawyer before they did the interview. L.J. declined.

[36] L.J. confirmed all the details from her prior statement and occasionally elaborated on some. L.J. reaffirmed that she consented to the police taking photographs of her messages with the Applicant. L.J. took the officers through the messages again and invited the officers to take further photographs.

[37] Detective Span asked L.J. what happened in the room on September 3, 2020. L.J. explained that she spoke with the Applicant for “probably 40 minutes”. Thereafter, the Applicant took a shower and received sexual services for consideration. L.J. explained that the other appointments with “Chris” were similar. She explained that they talk a lot. According to L.J., “They always just had a good laugh” and most of their time together would be spent chatting.

Analysis

Admissibility of the Text Messages

Standing: Reasonable Expectation of Privacy

[38] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure.

[39] When dealing with informational privacy, s. 8 protects a biographical core of personal information, which individuals in a free and democratic society would wish to maintain and control from dissemination to the state: R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320, at para. 38.

[40] The claimant must have a reasonable expectation of privacy in the subject matter of the search based on an assessment of the totality of the circumstances: Hunter et al. v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145; R. v. Dyment, 1988 10 (SCC), [1988] 2 S.C.R. 417, at para. 26; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 10; Mills, supra, at para. 12.

[41] In considering the totality of the circumstances, four lines of inquiry guide the court’s analysis:

a. What was the subject matter of the search?

b. Did the claimant have a direct interest in the subject matter?

c. Did the claimant have a subjective expectation of privacy in the subject matter?

d. Was the claimant’s subjective expectation of privacy (if any) objectively reasonable?

[42] As explained in Marakah, only if the answer to the fourth question is “yes” — that is, if the claimant’s subjective expectation of privacy was objectively reasonable — will the claimant have standing to assert his s. 8 right. If the court so concludes, the claimant may argue that the state action in question was unreasonable.

[43] If, however, the court determines that the claimant did not have a reasonable expectation of privacy in the subject matter of the alleged search, then the state action cannot have violated the claimant’s s. 8 right. He will not have standing to challenge its constitutionality: Marakah, supra, at paras. 11-12.

[44] In this case, the subject matter of the search is the electronic conversation between the sender and the recipient(s). As noted in Marakah, this includes the existence of the conversation, the identities of the participants, the information shared, and any inferences about associations and activities that can be drawn from that information.

[45] Looking at the second factor, a participant in an electronic conversation and the author of the particular text messages will have a direct interest in the subject matter: Marakah, supra, at paras. 20-21; Mills, supra, at paras. 14-16.

[46] In the context of a private conversation, as in this case, I am also satisfied that the Applicant had a subjective expectation of privacy in the conversation.

[47] The question then is whether the subjective expectation of privacy held by the Applicant was objectively reasonable. The jurisprudence makes clear that objective reasonableness must be assessed by looking at the totality of the circumstances. The question always comes back to what the individual, in all of the circumstances, should reasonably have expected. This is a normative question about when Canadians ought to expect privacy given the applicable considerations.

[48] Framed another way, the question is whether it is right that the state should be able to obtain this evidence without a prior judicial authorization: Marakah, supra, at paras. 24, 30; R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; Mills, supra, at paras. 13, 20, 59. As Dickson J. put it in Hunter v. Southam Inc., supra, at pp. 159‑60:

The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlement to a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government's interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement. [Emphasis added.]

[49] The jurisprudence makes clear, not all police efforts to gather information will engage s. 8. In interpreting s. 8, courts seek to strike an acceptable balance between privacy and the need for a law enforcement.

[50] Courts have referred to a number of factors that may assist in determining whether it was reasonable to expect privacy in different circumstances: see R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 45; Tessling, supra, at para. 32; Edwards, supra, at para. 45.

[51] As in the case of Marakah, supra, the factors that figure most prominently on the facts of this case are: (1) the place where the search occurred; (2) the private nature of the subject matter, i.e., whether the informational content of the electronic conversation revealed details of the claimant’s lifestyle or information of a biographic nature; (3) the applicant’s control over the subject matter, and; (4) whether the information was already in possession of third parties.

[52] The Crown argues that information turned over voluntarily does not amount to a search, and the accused has no standing to challenge it.

[53] L.J. showed both officers the electronic communications between herself and the Applicant. The officers took photographs of what they were shown. As one of the co-authors of the electronic communications, nothing would have prevented L.J. from simply reading out the content of the electronic communications. The fact the officers took photographs of the communications is the functional equivalent of her reading the messages for the recording.

[54] The Crown also argues that the texts themselves in this case are the actus reus of the offence (communications to obtain sexual services for consideration) and accordingly do not engage s. 8. In this regard, the Crown points to the remarks of Bawden J. in R. v. Patterson, 2018 ONSC 4467, where the Court explained at para. 13:

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

[55] The Courts have found no violation of s. 8 in cases where electronic communications were voluntarily provided to the police and no subsequent warrant was obtained: R. v. Amdurski, 2022 ONSC 1338, at paras. 21-44; R. v. K.A., 2022 ONSC 1241, at para. 53; Patterson, supra; R. v. C.T., 2023 ONSC 286.

[56] The facts of this case are analogous to the circumstances in Amdurksi where the voluntary disclosure of electronic communications to the police was found not to engage s. 8 of the Charter: at para. 41.

[57] Amdurski involved a situation where a mother provided photographs of messages between her missing 13-year-old daughter and her alleged “pimp” to the police. In that case, the Court specifically stated at para. 22:

Mr. Amdurski has no standing to object to S’s mother giving this material to the police. Section 8 of the Charter applies only to state action. As stated by the Supreme Court of Canada in R. v. Dyment, “the essence of a seizure under s. 8 is the taking of a thing from a person by a public authority without that person’s consent”. In this case, s. 8 is not invoked because the property at issue was not seized by state action. It was voluntarily provided to the police by S’s mother. Further, the very next day, assuming a 13-year-old has the legal capacity to consent or withhold consent (which is debatable), S herself agreed that the police could retain her phones and download anything on them.

[58] Similarly, the courts have also found no expectation of privacy in communications between other vulnerable individuals or exploitive relationships in general.

[59] For example, in K.A., two accused were charged with human trafficking offences and applied to have the contents of the victim’s cellphone, including text messages, excluded pursuant to s. 24(2) of the Charter. The alleged victim provided the police with consent to search her cellphone. Relying on para. 26 in Mills, Justice Conlan concluded that the relationship of a male pimp and human trafficker and his alleged female sex worker and slave is the type of relationship that is not worthy of s. 8 Charter protection when it comes to electronic communications. Accordingly, the applicants did not have standing. She explained at paras. 51-55:

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

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

I agree with the Crown’s submission that the nature of the relationship in our case is every bit as heinous as the adult sex predator-stranger child relationship that Justice Brown was confronted with in Mills

[60] Notably, in K.A., the alleged victim, also spoke to the police, went to the police station, spoke to the police again, gave a lengthy formal statement to the police, signed a consent to search form, and then voluntarily surrendered her cellular telephone to the authorities.

[61] In R. v. Campbell, 2022 ONCA 666, Trotter J.A. also explained that Mills specifically carved out an exception to the sharing of information in contexts where the receiver of the text was being victimized. He commented:

In my respectful view, Mills carved out an exception in circumstances where the electronic communications themselves constitute a crime against the recipient – in that case, the victimization of children.

[62] The defence maintains these cases are distinguishable. The defence points out that the case of Amdurski dealt with the text communications between an adult and a 13-year-old girl. The texts were volunteered by her mother to police for her own protection.

[63] The defence argues that in this case, the police were interviewing an adult. The Complainant, although involved in the sex trade, was hardly a vulnerable victim. There is no evidence that she was being exploited in the context of her employment.

[64] The defence also points out that here it was the police that initiated contact with a view to investigating the Applicant: See R. v. Spencer, 2014 SCC 43, at para 64. The police asked to take pictures of the texts in furtherance of a parallel and ongoing investigation. And while the Complainant consented to turn over the information, the factual record suggests that her consent was driven by a desire not to be interfered with by the police in the future.

[65] Finally, the defence submits that the comments of the Court in Marakah make clear that the police required a warrant. More specifically, the defence points to the comments of the Supreme Court of Canada, at para. 50:

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

[66] I disagree with defence that para. 50 decides the issue on whether a warrant would be required in the circumstances of this case. While the Court in Marakah acknowledged that a sender of text messages could retain a privacy interest in them, the Court specifically left open the question of whether or not texts messages voluntarily disclosed engaged s. 8: see Marakah, supra, paras. 4-5; see also R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 46; R. v. N.C., 2019 ONCA 484, at para. 32.

[67] I agree with the defence that communications of this nature can be entitled to s. 8 protection. The fact that the communications amount to the actus reus of the offence (communicating for the purpose of obtaining sexual service for consideration) does not automatically exempt them from s. 8 protection.

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

[69] Intercepted communications that disclose criminal offences (frauds, drug trafficking, weapons trafficking) are routinely excluded based on a violation of s. 8. To suggest certain communications were exempt from s. 8 protection on the basis of their content alone would undermine the very protections afforded by s. 8. The most serious violations of privacy could occur, and the most probative communications would remain available to the state in the prosecution.

[70] On this issue, I adopt the comments of Davies J. in R. v. Mootoo, 2022 ONSC 367, at para. 39:

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

[71] That said, while I agree that communications of this sort can attract an expectation of privacy, I am not convinced that communications voluntarily shared by a party to that conversation required police to obtain a warrant prior to its review.

[72] Unlike Marakah, this is not a case where the police unilaterally intruded upon the conversation. L.J. voluntarily provided the information to police. The texts themselves were between L.J. and the Applicant. There was no privilege attached to the communications and L.J. was otherwise under no obligation to keep the Applicant’s information confidential.

[73] Indeed, if a complainant or cooperating witness cannot provide their explanation of events to police by reference to their very own text communications with a suspect, investigations would be unnecessarily impeded. Obviously, part of the context and substance of their account would come from a review of such messages. It also seems ludicrous to suggest that a person could read out verbatim the text communications to police but police would require a warrant to take a look.

[74] Moreover, the ability to receive such information should not be restricted to receipt from individuals who are in vulnerable positions. Nor should it matter that the police initiated the contact with the person who provided the information.

[75] In my view, imposing a requirement that a person be a “vulnerable” person or “victim” injects an unnecessary level of subjectivity into the analysis. Moreover, to suggest access to a person’s volunteered communications should be restricted to vulnerable individuals implies that it is some form of exigency that justifies the sharing of the information. In my view, such an approach unduly interferes with the capacity for non-vulnerable persons to cooperate with the police. In this regard, I adopt the comments of Doherty J.A. in R. v. Orlandis-Habsburgo, 2017 ONCA 649, at para. 34:

I have considerable difficulty with the submission that s. 8 is engaged if the police look at information in which an accused has a legitimate privacy interest, even if that information is brought to the police by an independent third party acting on its own initiative. On that approach, s. 8 would be engaged if a “whistleblower” took confidential documents belonging to her employer to the police to demonstrate the employer’s criminal activity. Must the police refuse to look at the documents to avoid violating the employer’s s. 8 rights?

As Duarte teaches, it is one thing to say that Canadian values dictate that the state’s power to decide when and how it will intrude upon personal privacy must be carefully circumscribed, and quite another to say that an individual’s private information is cloaked in the protection of s. 8 no matter how that information comes to the police. [Emphasis added.]

[76] Indeed, to require a warrant in such contexts would also create unnecessary complexity in police dealings with confidential informants and victims. Justice Moldaver’s comments in his dissent in Marakah (cited in Amdurski) at paras. 184-186 regarding the concerns with requiring a warrant in such situations apply:

Moreover, the process itself could be needlessly harmful, exposing children or other vulnerable witnesses to cross-examination about consent given to the police to search their phones or other devices for private communications that may involve threats or sexual predation: see Sandhu (2014), Lowrey and Craig. Ultimately, the resulting uncertainty is likely to cause police to seek judicial authorizations in most cases out of an abundance of caution to take basic investigative steps such as obtaining records of electronic communications between witnesses and accused persons.

The increased need for these judicial authorizations could strain police and judicial resources in an already overburdened criminal justice system. Investigations would be slowed, more judicial officers would be required, and the administration of criminal justice as a whole will suffer. And the effects do not end at the investigative stage.

At the trial stage, each of the above repercussions could significantly complicate and prolong proceedings. [Emphasis added]

[77] In this regard, I also find the comments of Justice Molloy in Amdurski at paras. 39 and 41 compelling:

If S’s mother had found an illegal firearm in her daughter’s backpack or closet, there would be no question about her right to turn it over to the police, regardless of who owned it and regardless of whether the owner of the weapon had extracted promises from the child to keep it hidden. I see no principled basis for holding that the incriminating evidence found on the child’s phone should be treated any differently. Further, upon being advised of such material on a cellphone or computer, the police, in my view, are duty-bound to look at it. First, they need to verify that the material is indeed as described. Second, there is a real concern that this particular child might not be the only victim. Sexual predators who troll on the internet for children rarely restrict their efforts to one victim. In these kinds of situations, police need to act, and they need to be able to act quickly. The protection of the most vulnerable victims imaginable requires it. This is not a situation in which a search warrant should be required.

It was always open to S to divulge to others, including her mother and including the police, what happened to her and what Mr. Amdurski said and did. Surely then, she must be able to divulge not only what she remembers but copies of the messages themselves. Such disclosure by the victim of material in her own possession constituting evidence of the crimes against her cannot be said to be subject to the privacy interests of the accused in the text messages he sent. [Emphasis added.]

[78] These passages recognize the need for a proper balance between privacy and law enforcement. The person who is engaged in the conversation should have the ability to share that conversation with the police for their own protection or the protection of others.

[79] That is not to say that any information possessed by third parties and voluntarily turned over will never be subject to Charter scrutiny. As the jurisprudence has made clear, if a third party turned over a cellphone or computer belonging to the target of an investigation, absent exigent circumstances, police would require a warrant before conducting a search of it given the privacy interests engaged in such a search: see R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531 and Cole, supra.

[80] If a complainant were pressured into sharing the information, or otherwise tricked or compelled into providing it, the admissibility of the evidence gathered would also be subject to scrutiny.

[81] The particular circumstances of the case would have to be examined and the reasonableness of the police conduct would be subject to review.

[82] In this case, the police merely took photos of the texts referenced by L.J. that she was a party to. There was no evidence of any pressure placed on L.J. Rather, in the context of the interview, L.J. voluntarily shared her texts with a view to providing dates and further information related to her relationship with the Applicant.

[83] I am satisfied that the issue of the texts came up spontaneously in the context of that interview. This is not a situation where the police set out to obtain the accused’s text messages with a view to circumventing obtaining a warrant. Rather, in the context of their interview, L.J. simply referenced her text communications with the accused.

[84] Detective Span, in her evidence, acknowledged that she was simply taking the photographs of the texts with a view to preserving the evidence, and have the proper context/evidence for the statement being provided.

[85] While the electronic communications reveal some information that is personal and private, it is not information that goes to the Applicant’s biographical core. The conversations are generally brief and involve the scheduling of appointments with L.J. While the Applicant’s sexual preferences are briefly mentioned, the only other information shared involves recommendations for movies and a butcher shop.

[86] In the particular circumstances of this case, I am satisfied that the police were permitted to photograph L.J.’s communications with the Applicant in the context of her relationship.

[87] I am satisfied that there was no breach of the Applicant’s s. 8 rights.

Section 24(2)

[88] In R. v. Grant, 2009 SCC 31, the Supreme Court of Canada outlined the test for whether evidence should be admitted or excluded under s. 24(2) of the Charter. The court asks whether, having regard to all the circumstances, admitting the evidence would bring the administration of justice into disrepute. This involves examining the impact its admission would have on public confidence in the administration of justice over the long term, based on a balancing of three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused’s Charter-protected interests, and; (3) society’s interest in the adjudication of the case on its merits: R. v. Beaver, 2022 SCC 54, at paras. 94, 116; Grant, supra, at para. 71.

[89] In balancing the factors articulated in Grant, even if I am incorrect with respect to the breach of s. 8, in my view, the evidence should not be excluded.

[90] The police obtained L.J.’s consent prior to taking photographs of the messages, which indicates that they were acting in good faith. If the police were not authorized to photograph the texts, the police error in this case is more akin to inadvertence or an understandable mistake than willful or reckless disregard towards the Applicant’s Charter rights: Amdurski, supra, at para. 86 and R. v. N.C., 2019 ONCA 484, 377 C.C.C. (3d) 176, at paras. 32-34. The jurisprudence at the time clearly indicated that the texts voluntarily provided could be reviewed without the need for a warrant.

[91] The impact on the accused’s Charter-protected interest is not substantial. This is not a situation where the police unlawfully searched the Applicant’s cellphone where a seemingly endless amount of information would have been made available to the police. The police only viewed his text messages contained on another person’s cellphone. That person had a limited relationship with the Applicant. The messages, while incriminating, do not reveal a significant amount of additional information about the Applicant’s biographical core or other intimate details about his lifestyle. The Applicant’s reasonable expectation of privacy in these messages is low. Accordingly, the impact on his s. 8 Charter right is equally minimal.

[92] Finally, society’s interest in the adjudication of the case on its merits is high. Section 286.1 of the Criminal Code is not a victimless crime. The enactment of Bill C-36 reflects an understanding of the personal and societal harms created by those who create a demand for the sex trade industry; i.e. purchasers. Third parties capitalize on this demand to commit the more serious related offences in the Criminal Code, such as human trafficking and procuring.

[93] Society’s interest in the truth-seeking function of this Court also favours the admission of the photographs.

[94] Having regard to the factors listed above, the evidence should not be excluded.

Argument for Exclusion of the Identification Evidence

[95] The Applicant argues that the identification process engaged in, both by the police and the Complainant directly, violated the Applicant’s s. 8 right to be free from unreasonable search and seizure, by not complying with the Sophonow recommendations.

[96] Even in the absence of a Charter breach, the Applicant argues that I should exercise my discretion to exclude evidence which was obtained in circumstances which would result in an “unfair trial”, if admitted.

[97] The Applicant argues that the identification evidence provided by the Complainant within the September 10, 2020 and September 15, 2020 interviews, is so badly tainted, as to permanently and irrevocably render her identification evidence as unreliable, thus exceeding its probative value and ought to be excluded.

[98] With respect to the question of a s. 8 violation, my analysis above addresses the “lawfulness” of the police receiving information from the Complainant which would include receipt of the photograph she obtained from Facebook. I find no s. 8 violation relating to the interview, text captures, or the photograph that was turned over to the police.

[99] On the question of whether the Complainant’s ability to identify the Applicant has somehow been tainted so as to require its exclusion at trial, I disagree.

[100] As pointed out in R. v. Miaponoose (1996), 1996 1268 (ON CA), 30 O.R. (3d) 419, (Ont. C.A.), the weight of eyewitness identification will vary greatly depending on the circumstances:

The weight of evidence of identification of an accused person varies according to many circumstances. A witness called upon to identify another person may have been so well acquainted with him or her as to make the identification certain and safe. The person to be identified may possess such outstanding features or characteristics as to make an identification comparatively free from doubt. The conditions under which an observation is made, the care with which it is made, and the ability of the observer, affect the weight of the evidence. In addition to such matters, and of the utmost importance, is the method used to recall or refresh the recollections of a witness who is to be relied upon to identify a person suspected of wrongdoing or who is under arrest. If a witness has no previous knowledge of the accused person so as to make him familiar with that person's appearance, the greatest care ought to be used to ensure the absolute independence and freedom of judgment of the witness. His recognition ought to proceed without suggestion, assistance or bias created directly or indirectly. Conversely, if the means employed to obtain evidence of identification involve any acts which might reasonably prejudice the accused, the value of the evidence may be partially or wholly destroyed. Anything which tends to convey to a witness that a person is suspected by the authorities, or is charged with an offence, is obviously prejudicial and wrongful. Submitting a prisoner alone for scrutiny after arrest is unfair and unjust. Likewise, permitting a witness to see a single photograph of a suspected person or of a prisoner, after arrest and before scrutiny, can have no other effect, in my opinion, than one of prejudice to such a person. [Emphasis added.]

[101] In this case, the Complainant knew the Applicant since 2018. She had met with him on multiple occasions between 2018 and 2020 and had been communicating with him since that date. While there was a gap in her meetings with the Applicant, she had recently met with him for an hour just a week before.

[102] The Applicant was observed by police to be attending at the Complainant’s hotel room on September 3, 2020. It is for this reason the police approached the Complainant to ask about the nature of her dealings with the Applicant (“Chris”). It was also for this reason the police showed the Complainant the photograph, to specifically ask about her dealings/relationship with the male known to her as “Chris”. In this context, there was no risk that showing the photograph to the Complainant would unduly influence her on the question of identity.

[103] Before being shown a photograph of “Chris”, L.J. discussed her interactions and dealings with “Chris”. Upon viewing the photograph, L.J. confirmed that it was “Chris”.

[104] The text communications with “Chris” which display the name associated with the registered phone number as “Simon Bridle” are also significant on the issue of whether the Complainant was potentially confusing the Applicant for the other males. “Chris” also referred to himself as “Simon” in the texts. It is clear the Complainant knew who the police were asking about, namely, the Applicant.

[105] After the interview on September 10, 2020, L.J. searched the Applicant’s name on Facebook – which she obtained without police involvement – and provided the officers with a better photograph of the Applicant from his Facebook page. This further confirms that there was no confusion on her part.

[106] In my view, the case of R. v. Keating, 2020 ONCA 242, has some similarities to the case here. In Keating, the complainant was coerced to work in the sex trade for four to five days by a man known to her only as “Chicken”. The Ontario Court of Appeal took no issue with the fact that the police showed the complainant Facebook photographs of “Chicken”. The Court explained at para. 29:

In assessing the complainant’s evidence that Chicken was the person shown in the Facebook photographs, it is significant that when the complainant identified the picture as a picture of Chicken, she had been living with that person on intimate terms over the previous four or five days. Her identification of Chicken as the person in the photographs was hardly based on a fleeting glance.

[107] Similarly, in R. v. Lewis, 2022 ONCA 282, the Court recognized the distinction between recognition and identification. In Lewis, the victim was attacked by multiple assailants. A witness recognized Lewis as one of the perpetrators. The witness had met him a few times and had seen him around the area. The witness retrieved a photograph of Lewis from Facebook and provided it to the police. The Ontario Court of Appeal upheld the trial judge’s conclusion that the witness’s identification of Lewis was “recognition evidence”. Furthermore, Lewis’s argument that the identification evidence was tainted after he viewed the Facebook page was also dismissed. As the Court of Appeal explained, at para. 24:

Mr. Zaroski immediately recognized the appellant from the moment the bus entered the parking lot, and then gave the name of the appellant to the police at the scene following the assault. Only after all of that did Mr. Zaroski decide to retrieve a Facebook picture to verify what he already believed to be true.

[108] The jurisprudence also makes clear that the use of inappropriate pretrial identification procedures does not render the subsequent identification inadmissible.[^2] Rather, it is a factor affecting the weight of the evidence. There may be other evidence or other circumstances which serve to otherwise validate the witness’s identification: Miaponoose, supra.

[109] Obviously, the defence is entitled to challenge the credibility of the Complainant on the issue of whether she was misrepresenting her relationship with the Applicant or somehow confusing the Applicant for one of the other two males.

[110] That said, I do not agree that her ability to identify the Applicant has somehow been tainted so as to warrant its exclusion.

Disposition

[111] Having regard to my reasons outlined above, the applications are dismissed.

Justice C.F. de Sa

Released: February 22, 2023

[^1]: The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11

[^2]: Unless it is otherwise excluded by a Charter application.