COURT FILE NO.: CR-21-70000503 DATE: 20230726

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – DONALD WAYNE RIGGS

Counsel: A. Spieser, for the Crown D. Riggs, self-represented D. Paton, amicus curae

HEARD: 27 April 2023

S.A.Q. AKHTAR J.

FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] The applicant, Donald Riggs, stands charged with two sets of voyeurism offences relating to 31 August 2020 and December 1-25, 2020. The complainant and subject of the materials in question was the applicant’s next-door neighbour. Mr. Riggs also faces charges of threatening his neighbour’s brother and failing to comply with an undertaking.

[2] The Crown seeks to rely on materials found on the applicant’s phone and other electronic devices seized from his residence after a search warrant was executed.

[3] The applicant brings a motion asking for this evidence to be excluded because his section 8 Charter rights were violated.

[4] At the end of submissions, I dismissed the application with reasons to follow which are now provided.

Background Facts

[5] On 23 August 2020, two civilians went to the York Regional Police 2 District station to report their finding of a black mobile phone in a parking lot at Sandbanks Beach in Picton the previous day.

[6] The civilians (hereinafter referred to as the reporting party) advised the officer on duty, Police Constable Poole, that they received a phone call from a male who indicated the device belonged to him and wanted it back. When they examined the phone they discovered a series of photographs which identified the applicant. They also observed a video of a female who appeared that she was being filmed without her knowledge.

[7] PC Poole performed a cursory search of the phone and found a recording of a woman being filmed through a window as she undressed. He also found a photograph of the applicant’s driver’s licence.

[8] As a result, the police applied for a search warrant to examine the contents of the mobile phone.

[9] On 25 August 2020, their first application was erroneously dismissed by Justice of the Peace Johnson. Amicus, assisting the applicant in this case, agrees that the Justice of the Peace was wrong as she misapprehended her role and conducted a Charter analysis when she was not empowered to do so.

[10] A second information to obtain a warrant (ITO) was prepared. On 2 September 2020, Giourgas J. of the Ontario Court of Justice, authorised the warrant and the police conducted a search of the cell phone. The investigating officer, Detective Constable Shillingford, found numerous videos and photographs of a female in various stages of undress and engaged in sexual activity.

[11] On 3 September 2020, DC Shillingford contacted the applicant and asked him to surrender himself. The following day, the applicant attended the station, was arrested, and interviewed. He provided a lengthy videotape statement, which lasted almost 4 hours. During the course of the interview, he made several incriminating comments.

[12] Following the interview, DC Shillingford applied for a production order seeking the applicant’s phone records held by Freedom Mobile. The order was granted on 9 September 2020.

[13] On 17 September 2020, the police took a statement from both the woman captured in the video recordings and her brother. Both indicated they had observed the applicant taking photographs of the woman whilst she was sunbathing in June 2019.

[14] DC Shillingford obtained a warrant to search the applicant’s residence and seize any electronic device capable of storing or recording digital media. The warrant was issued on 18 September 2020 and executed the same day. During their search, police arrested the applicant for an additional count of voyeurism in relation to the sunbathing incidents.

[15] The search also resulted in the seizure of a number of electronic devices including three cameras, two laptops, a tablet, multiple USB drives, and memory cards. After his arrest, the applicant was released from custody.

[16] On 25 December 2020, the complainant’s brother contacted the police and told them that the applicant had threatened him and violated his release conditions. The police spoke to the complainant’s brother and a neighbour. The neighbour confirmed he had surveillance footage of the threatening incident.

[17] The police arrested the applicant at around 3:00 p.m. and transported him to 55 Division where he was detained for a bail hearing. He was held overnight but released the next day.

[18] In July 2021, the police obtained a warrant to search the applicant’s Samsung mobile phone.

[19] The applicant seeks exclusion of all of the evidence obtained by the warrants. He argues that PC Poole’s initial search of the phone and the subsequent warrant was obtained in violation of section 8 of the Charter.

[20] The applicant further contends that this warrant provided critical evidence later used in the application to obtain the production order and subsequent warrants. The applicant argues therefore that the order and warrant cannot survive as they were issued on the basis of evidence obtained in a manner that violated his Charter rights.

[21] In other words, the initial unconstitutional search of his phone resulted in a “domino effect” of Charter breaches leading to all of the subsequent evidence needing to be excluded.

[22] On the other hand, the Crown submits that all of the searches of the phone were constitutional and suggests three ways in which this Court can analyse the events and the initial search.

[23] First, the Crown argues the ITO is fully Charter compliant and can be reviewed without the need for any excisions.

[24] Secondly, and in the alternative, if this court finds that PC Poole’s initial search violated the applicant’s Charter rights, any information gleaned from that search can be excised from the ITO. The Crown submits that the ITO could justify the issuance of the warrant without any reference to the observations made by PC Poole.

[25] Thirdly, the ITO could be subject to partial excision removing the evidence of images showing voyeurism and retaining the information regarding ownership of the phone. The respondent argues that on this basis the Court would again conclude that the warrant could have issued.

WAS THE WARRANT PROPERLY ISSUED?

The Test for Reviewing a Judicially Authorised Warrant

[26] The ITO that is challenged is presumed to be valid and the onus of establishing its invalidity in a Charter application rests upon the challenging party: R. v. Sadikov, 2014 ONCA 72, at para. 83.

[27] It is trite law that the review of a judicially authorised warrant does not involve a fresh hearing of the validity of the warrant where the reviewing judge substitutes their view for that of the authorising judge. The review consists of the evaluation of the record which was before the authorising judge in order to determine whether it disclosed sufficient evidence upon which the judge could have issued the authorisation: R. v. Garofoli, [1990] 2 S.C.R. 1421, at para. 56; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 51; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 40; R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641 at para. 99. Any facts that the affiant knew or ought to have known were inaccurate must be excised from the ITO and cannot be considered: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207 at paras. 119-121.

[28] In order to persuade an issuing justice to authorise a warrant, the ITO upon which it is founded must set out reasonable and probable grounds to believe an offence has been committed and that evidence relating to that offence will be found at the place to be searched: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 18; Sadikov, at para. 84; Morelli, at para. 40. The party challenging the warrant must establish that there was no basis upon which the authorising judge could have issued the warrant in order for it to be invalid: R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 8. When deciding the issue, the reviewing judge must look at the totality of circumstances set out in the ITO to determine whether the police had made out reasonable and probable grounds that evidence of would be found in the place or device to be searched: Sadikov, at paras. 82, 88; R. v. Victoria, 2018 ONCA 69, at para. 101; R. v. Choi, 2013 ONSC 291, at para. 37.

[29] In Sadikov, at para. 81, Watt J.A. provided the following definition of “reasonable grounds to believe”:

The statutory standard - "reasonable grounds to believe" - does not require proof on the balance of probabilities, much less proof beyond a reasonable doubt. The statutory and constitutional standard is one of credibly-based probability: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167; and R. v. Law, 2002 BCCA 594, 171 C.C.C. (3d) 219, at para. 7. The ITO must establish reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search: Hunter, at p. 168. If the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in the ITO, the warrant could be issued: R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22.

[30] If a reviewing judge finds facts that are misleading, improper, or obtained in a manner that violated an accused’s Charter rights, the appropriate remedy is to excise those facts and determine the question of validity on the information that remains: Araujo at paras. 54-60; Lising at para. 30; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721 at para. 28; R. v. Nguyen, 2011 ONCA 465, at para. 23.

The Information to Obtain

[31] The ITO for the 2 September 2020 search warrant included the following material relied upon to establish the required reasonable and probable grounds:

The Reporting Party information

• On 23 August 2020, “the reporting party” had found a phone at the Sandbanks Beach in Picton at approximately 5:00 p.m. the previous day
• The reporting party requested anonymity
• The party looked through the phone in an attempt to identify the owner
• As they did so, they found numerous video recordings of a female undressing in the basement of a home
• The person making the recording was standing outside the basement window
• The female appeared to be unaware that she was being recorded
• Whilst in possession of the phone, the reporting party received a call from a male who said that he was the owner of the phone and asking to meet with the party to return the item to him
• The phone call was made from number 416-423-9256

Information arising from PC Poole’s search

• The phone was handed to PC Poole who observed the video recordings and found a photograph of an Ontario Driver’s Licence in the name of Donald Riggs with his birth date and the address 9 Savoy Avenue in Toronto
• PC Poole also found other photos of the same man in the phone
• The phone was given to another officer, PC Payenda, who also viewed the recordings of the female undressing
• On 24 August 2020, PC Payenda and DC Shillingford attended 9 Savoy Avenue and noted the architecture of the houses were similar to the house of the female who was captured undressing on video

Was the Reporting Party Information Sufficient to Justify the Issuance of the Warrant?

[32] I start with the Crown’s second option: review of the ITO with the excision of the information resulting from PC Poole’s initial search of the phone.

[33] I find that the reporting party’s information provided a sufficient basis for the issuance of the subsequent warrant on 2 September 2020. That information was enough to show that an offence of voyeurism had been committed, and evidence of the offence would be on the phone as the reporting party had seen the images shortly before handing the phone to police.

[34] Mr. Paton, as amicus assisting the respondent, submits that the reporting party’s claims should be subject to an analysis directed by the Supreme Court of Canada in R. v. Debot, [1989] 2 S.C.R. 1140, before being available for use by a reviewing judge in determining whether the warrant could have issued.

[35] Debot set out the well-known criteria otherwise referred to as the “three Cs” that information from confidential informants or anonymous sources such as Crimestoppers Tips should be:

• Compelling in terms of details;
• Credible; and
• Corroborated

[36] Mr. Paton argues that the police needed to satisfy themselves of these criteria before acting on the information provided by the reporting party who were in the same position as an anonymous source.

[37] I do not agree. Although Debot refers to information based on a “tip” originating from a source outside the police, its criteria are normally used when the source of the information is a confidential informant or anonymous tip (for example, as provided by Crimestoppers). The concern is the reliability of the information supplied and the motivation in providing it.

[38] Here, the information was far more than an “anonymous tip”. The reporting party had no motive or incentive to physically take the phone to the police and inform them of what they had seen. They received no payment nor were they granted any favours as a confidential informant might be. Nor were they completely anonymous and free from identification. They presented themselves to the police and risked being identified against their wishes. There is absolutely no evidence that they might have a motive to fabricate the account given to police.

[39] This situation is more akin to that in R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34 where a high school teacher’s laptop was found to contain sexually nude images of a student on its hard drive. School officials seized the laptop and gave it to the police who searched it without a warrant. The Supreme Court of Canada held that the accused’s s. 8 rights had been violated but the evidence was admissible under s. 24(2) of the Charter. As the accused had a privacy interest in his work computer, the police required a judicially authorised warrant to conduct a search. However, at para. 73, the Court explained:

The school board was, of course, legally entitled to inform the police of its discovery of contraband on the laptop. This would doubtless have permitted the police to obtain a warrant to search the computer for the contraband. But receipt of the computer from the school board did not afford the police warrantless access to the personal information contained within it. This information remained subject, at all relevant times, to Mr. Cole's reasonable and subsisting expectation of privacy. [Emphasis added]

[40] The decision in Cole would appear to endorse the position that a Debot style analysis is not required in the circumstances of this case.

[41] If I am wrong, I would hold for the following reasons that the reporting party’s information meets the Debot threshold.

[42] First, the information was compelling. The reporting party described how the phone was located, gave details of the owner’s call, and provided a description of the illicit material contained within.

[43] They were also very credible: they had no motive to implicate anyone and had spared the time and effort to attend the station with the phone. Even though they requested anonymity, they could not have known that this would be guaranteed when they made their report.

[44] Even though no confirmatory steps were taken to confirm the reporting party’s account, that is not fatal to the Debot inquiry. As Wilson J. pointed out at para. 53 of Debot, each of the factors do not form a separate test. What is required is that “’the totality of the circumstances’ must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.” Here, the compelling nature of the evidence and the credibility of the source more than compensate for the absence of corroboration.

[45] Moreover, I ask rhetorically: what could the police have done to corroborate the reporting party’s account? If amicus and the applicant are correct the police could not conduct a cursory search of the phone to confirm the information and by the same token they could not get a warrant to search the phone without confirmatory evidence. This makes no sense.

[46] For these reasons, I find that on the reporting party’s information alone the ITO was sufficient to provide grounds for issuing the warrant.

Should PC Poole’s Search be Excised from the ITO?

[47] Although I have decided that there was sufficient evidence before the authorising justice to issue the warrant, I would also make some additional comments on the issue of whether PC Poole was lawfully able to conduct a cursory search on the phone. I do so because this was the subject of dispute between the parties.

[48] There appears to be a divergence in the jurisprudence as to what the police may do when confronted with a situation where a member of the public or a private institution reports the discovery of criminal activity on an electronic device.

[49] As already described, the Court in Cole indicated that the school officials’ reporting of illicit images on the accused’s laptop would have entitled the police to obtain a search warrant to examine it but did not permit them to conduct a warrantless search. Mr. Paton suggests that Cole forecloses the possibility of any cursory search of the phone without a warrant.

[50] Moreover, in R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, the accused shared a home with his common law spouse. He was barred from visiting her after a no contact order was issued against him following allegations of domestic violence. Subsequently, his wife contacted the accused’s probation officer to report a discovery of child pornography on their home computer, shared with the accused. When police arrived to investigate, the accused’s common law wife allowed them to enter and signed a consent form to seize the computer without obtaining a warrant. They did not obtain a warrant to search it until four months later. When they did, they found a number of images and videos of child pornography.

[51] On appeal, the Supreme Court of Canada held that the police breached the accused’s s.8 rights when they took the computer without a warrant notwithstanding his wife’s consent. The Court held that the accused had a reasonable expectation of privacy and a warrant was required even though he shared it and had limited control of it at the time of the seizure. Waiver by the accused’s wife did not amount to his waiver.

[52] However, in R. v. Orlandis-Habsburgo, 2017 ONCA 649, the Court of Appeal appeared to take a different view.

[53] There, the accused rented a residential home in which he operated a marihuana grow operation in the basement. The energy company noted a use in electricity giving rise to the suspicion that the accused were using the house to cultivate large scale quantities of marihuana. The company forwarded the information to police who relied on it to obtain a search warrant. When executed, police discovered numerous marihuana plants and packages in the house.

[54] The accused were convicted of production of and possession for the purposes of trafficking in marihuana, and possession of the proceeds of crime. On appeal, the defence argued that the police had violated the accuseds’ s. 8 rights when they acquired and examined the information given to them without first seeking a warrant. The accused further argued that since that information was obtained in a manner that violated their Charter rights, it had to be excised. Without it, the search warrant did not contain sufficient grounds to justify issuance.

[55] The Court of Appeal rejected this argument citing R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211 as authority permitting information provided by an energy supplier to be lawfully given to the police. The court also referred to R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212 and R. v. Sanelli, [1990] 1 S.C.R. 30 as also supporting this proposition.

[56] In answering this issue, Doherty J.A., writing for a unanimous court also referred to Cole, at para, 33:

Cole suggests that had Horizon concluded from its review of the data that its customer was probably using Horizon’s services for a criminal purpose, it could have gone to the police and told them about the suspected criminal activity. The police, armed with that information, could have conducted their own investigation, and assuming grounds existed, obtained a search warrant, based in part on the information brought to them by Horizon. Arguably, that is effectively what happened here, although Horizon gave the police the actual energy consumption data rather than reporting to the police that, based on their examination of the data, they believed that the customer was operating a marihuana grow-op. Cole does not support the appellants' position. [Emphasis added]

[57] This interpretation of Cole would appear to suggest that PC Poole’s cursory search of the mobile phone was lawful. This view is strengthened by Doherty J.A.’s comments 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]

[58] Orlandis-Habsburgo was cited with approval by the Alberta Court of Appeal in R. v. King, 2021 ABCA 271, at para. 8.

[59] My colleague, Molloy J., in R. v. Amdurski #4, 2022 ONSC 1338, dealt with an analogous situation to the instant case. There, a mother found text messages from the accused on her daughter’s iPhone which showed that her daughter had been working as a prostitute for him. The mother took pictures of the texts and showed them to the police. At trial, the accused sought to exclude these messages arguing that they had been obtained in violation of his s. 8 rights. relying on the Supreme Court of Canada’s decision in R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608.

[60] Molloy J. held that s. 8 was not engaged as the information voluntarily derived from the mother who had control of the phone. Moreover, her daughter consented to the downloading the entire contents of the phone. At para. 39, Molloy J. observed:

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.

[61] As can be seen, this area of the law has conflicting authorities that need to be settled by the appellate courts.

[62] As I have already found that the warrant to search the phone could have issued, I need not decide the issue of whether PC Poole’s cursory search breached the applicant’s rights Charter rights.

[63] For the foregoing reasons, the s. 8 application is dismissed.

S.A.Q. Akhtar J. Released: 26 July 2023