ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JATORRI WILLIAMS
Applicant
Robert Fried, Rhianna Woodward and Shalini Gunawardhane for the Crown
Gary Grill and Leo Salloum, for the for the Applicant
HEARD: September 12-16, 20-22, 27-28, 2022
justice peter bawden
Contents
I. THE EVIDENCE.. 3
A. The Alleged Murders. 3
B. The First Warrant to Search the Phones. 4
C. The Second Warrant to Search the Phones. 6
D. The Review of Extracted Data. 8
E. The Loss of the Extracted Data. 9
II. THE ISSUES. 10
III. ANALYSIS. 10
A. Standing. 10
B. The Manner of the Search. 17
C. The Facial Challenge to the Warrant 42
D. The Sub-Facial Challenge to the Warrant 50
E. The Failures to Abide by Section 489 & 490 of the Code. 54
IV. SECTION 24(2) 62
1Jatorri Williams is charged with two counts of murder. The Crown intends to introduce evidence at trial which was extracted from an iPhone seized from Mr. Williams at the time of his arrest. Mr. Williams challenges the admissibility of that evidence on the following grounds:
i. Although the search of the phone was authorized by a Justice of the Peace (“JP”), the police ignored the limitations the issuing justice placed on the search.
ii. The warrant itself was overly broad and could not have been granted based on the information disclosed in the Information To Obtain (“ITO”).
iii. The affiant deliberately failed to disclose information which, had it been known, would have precluded the issuing JP from granting the warrant.
2The defence submits that these failings, considered individually and collectively, breached the applicant’s rights under section 8 of the Charter and that the evidence obtained from the phone should be excluded under section 24(2).
3The Crown concedes that the police breached Mr. Williams’s section 8 rights, but not on any of the grounds alleged by the defence. The Crown acknowledges that the police failed to fulfill their statutory obligation to file a Report to a Justice concerning the seizure of the iPhone from Mr. Williams. The Crown further acknowledges that the police were neglectful in misplacing a copy of the data they extracted from the phone. These failings admittedly did violate Mr. Williams’s section 8 rights but the Crown submits that the violations were minimal and did not result in any intrusion into his privacy beyond what had been properly authorized.
4I agree that the police breached Mr. Williams’s section 8 rights but only to the extent conceded by the Crown. I do not find that the admission of the evidence would tend to bring the administration of justice into disrepute. In my view, the section 8 breaches were significant, but had very little impact on Mr. Williams’ Charter protected interests. The evidence obtained from the phone is reliable and highly probative of two murders. The exclusion of the evidence would tend to bring the administration of justice into disrepute.
I. THE EVIDENCE
A. The Alleged Murders
5On September 14, 2018, Elijah Aziavor was shot and killed while he stood in the doorway of an apartment building located at 126 Bellamy Road in Scarborough. The two shooters escaped from the scene in a blue Infiniti SUV with the licence plate CFPD-223. That vehicle was connected to Jago Anderson, who was identified as the getaway driver.
6Four days later, the same blue Infiniti SUV was used in a robbery of the “With Me Beauty Spa” located at 4386 Sheppard Avenue East. The robbery occurred at 7:47 pm and was captured on video. The robbery was committed by two men who closely resembled Mr. Williams and Mr. Anderson.
7Half an hour after that robbery, the same blue Infiniti pulled into a parking lot behind the “Golden Sunray Spa” located at 4559 Sheppard Avenue East. The two men who had robbed the With Me spa loitered near the entrance to the Golden Sunray spa from 8:21 until 8:26 pm. They wandered off camera towards the back of the parking lot. At 8:28 pm, a shot was fired in the back of the lot and the blue Infiniti sped away. Mr. Anderson’s body was discovered a short time later. He had been killed by a single shot to the head.
8Roughly 12 kilometres west of the Golden Sunray Spa is a residential street called Corning Road. Residents of Corning Road began to call 911 at 9:18 pm to report that a vehicle was on fire in front of 58 Corning Road. The vehicle was subsequently identified as the same Infiniti SUV which had been used in the murder of Mr. Aziavor and the two spa robberies.
9Shortly after the vehicle fire was reported, Mr. Williams was captured on video surveillance cameras arriving on foot at the Field Sparroway townhouse complex, which is located 1.2 kilometres from 58 Corning Road. Mr. Williams was picked up at Field Sparroway by a Lyft vehicle which drove him to his girlfriend’s home at 10 Chipper Crescent in Scarborough.
B. The First Warrant to Search the Phones
10On September 24th, 2018, Detective Hart of the Gun Violence Suppression Unit arrested Mr. Williams on two counts of attempted murder. Those allegations were not related to the murder of either Elijah Aziavor or Jago Anderson and there is no evidence that Mr. Williams was a suspect in either murder (Aziavor or Anderson) at the time of this arrest.
11Det. Hart seized several items from Mr. Williams’s person incident to the arrest including an iPhone7 and a Blackberry. Most of the items Det. Hart seized were noted on a property list, placed in an evidence locker, and included in a report to a justice. The two phones, however, were placed in a temporary locker in anticipation that they would be sent for forensic analysis. Det. Hart forgot to include the phones on the property list and they were not included in the report to a justice.
12Officers investigating the attempted murder charges applied for a warrant to search the phones. On October 10, 2018, a JP granted a warrant to search the property locker at 31 Division, seize the iPhone and Blackberry and take them to the Tech Crimes Unit for analysis.
13The warrant was executed to the extent that the phones were seized and delivered to the Tech Crimes unit, but the officer who examined them concluded that the passcodes could not be broken with existing software. The warrant expired without any extraction having occurred. The phones remained in the Tech Crimes vault without a report to a justice being filed.
14On July 9, 2019 (nine months after Mr. Williams’s arrest) the Crown withdrew the two attempted murder charges. Mr. Williams remained in custody on other matters until August 15, 2019. He was not notified that the police continued to hold the two phones.
15Mr. Williams returned to custody on October 20, 2019 on unrelated charges and has remained in custody ever since.
C. The Second Warrant to Search the Phones
16Mr. Williams was arrested on the attempted murder charges on September 24, 2018. Shortly after that arrest, he also became a suspect in the murders of Mr. Aziavor and Mr. Anderson. Although the Aziavor and Anderson murders were known to be linked, they were investigated by different teams within the Homicide Unit. Detective Sergeant Allington was the lead investigator of the Anderson homicide and Detective Sergeant Stephenson headed the Aziavor investigation.
17The investigations were stalled for almost a year as the detectives awaited software that could break the security passcode on the iPhone. That software finally became available in September 2019.
18Detective Constable Kremer was a member of the Anderson homicide team. On September 17, 2019, he submitted a warrant application to search the iPhone. The ITO he swore referred to the murder of Mr. Aziavor and explained the connections between the two murders, but only sought authorization to search for evidence relating to the Anderson murder. It did not propose any temporal limits to the search of data extracted from the phone.
19D.C. Kraemer’s application came before JP Agnew. Her Worship denied the application, providing two handwritten pages of reasons. The reasons included the following questions:
i. Will you be resubmitting a 5.2 Report to Justice once you have reseized the items?
ii. Will the scope of communication be limited in time and contact?
20D.C. Kremer replied to these questions as follows:
i. “Although I do not include them in my affidavit, I am aware of various steps that must be taken when seizing property; and I intend to follow those required steps, including submitting a report to justice.”
ii. “I have considered whether the subsequent review of the forensic images can be limited to examining data relating only to a specified date range. A specific date range for data to be examined will severely limit the police's ability to effectively examine the device.”
iii. D.C. Kremer went on to explain why a temporal limitation would impede the investigation of motive and limit the ability of police to determine the dates when files were created on the phone.
21D.C. Kremer resubmitted the application to JP Fernandez the following day and the warrant was granted.
22D.C. Flores of the Tech Crimes Unit received the signed warrant on September 20th, 2019. He successfully broke the six-digit passcode and extracted the entire contents of the iPhone. He converted that data into a 44,000-page PDF file, which he provided to Det. Sgt. Allington on a USB key.
23D.C. Kremer filed a Report to Justice regarding the search of the iPhone on September 20, 2019. The report listed the iPhone itself as the only property seized and made no reference to the data which had been extracted. He requested that the phone be detained as evidence in an ongoing investigation. JP Finnestad authorized the detention until January 2, 2020, specifying that if charges were laid before that date, the phone could be held until the completion of the proceedings. If charges were not laid by then, police would be required to return the property or seek authorization to extend the detention order.
24Mr. Williams was not charged with the murder of Mr. Anderson until June 25, 2020. No application was brought to extend the detention order when it expired on January 2, 2020, despite D.C. Kremer’s assurances that he was familiar with the reporting requirements and would abide by them.
D. The Review of Extracted Data
25Det. Sgt. Allington began to review the extracted data on September 23, 2019, and immediately saw photographs and videos of a woman with a small child who did not appear to be connected to Mr. Williams. He searched the extracted data to see if he could find any information to identify the woman and found documents bearing the name “Maria Gonzalez”. He searched that name on police databases and learned that a woman of the same name had been the victim of a robbery in Peel Region on September 3rd, 2018. The occurrence report for that offence indicated that three Black men, armed with guns, had forced their way into Maria Gonzalez’s home, tied her up and stole property including her iPhone.
26The Crown and defence have agreed on the following statement of facts to be put before the jury at Mr. Williams’s trial:
Maria Gonzales was the owner of the phone up until September 3, 2018. Jatorri Williams did not have access, directly or indirectly, to the phone prior to September 3, 2018.
27Mr. Williams entered his own Apple ID account onto the phone at 2:48 am on September 3, 2018.
28On October 22, 2019, Det. Sgt. Stephenson (the lead investigator of the Anderson homicide) directed a member of her team, D.C. Roth, to review the extracted data. D.C. Roth found evidence implicating Mr. Williams in both murders as well as the following three shootings:
i. A shooting at the Scarborough Centre for Alternative Studies (hereinafter, the “SCAS shooting”) on September 12, 2018.
ii. A shooting in a municipal park (G. Ross Lord Park) located near 120 Torresdale Avenue on September 14 at approximately 9:05 pm.
iii. A shooting which occurred on September 14 at approximately 10:46 pm at 30 Alder Road in Scarborough.
29Det. Roth provided a complete report on his review of the data to the two investigative teams in November 2019.
30On September 23, 2020, Det. Sgt. Stevenson realized that the authorization to search the data had not included the Aziavor murder. She directed D.C. Roth to obtain a warrant to search for all offences committed between September 9 to 24, 2018. That warrant was granted by Justice L. Feldman of the Ontario Provincial Court on November 13, 2020.
E. The Loss of the Extracted Data
31In March 2020, Det. Sgt. Allington attempted to retrieve the USB key containing the extracted data from D.C. Roth. D.C. Roth was unable to locate the key and Det. Sgt. Allington had to re-attend the Tech Crimes unit to obtain a second copy of the data from the Tech Crimes server. The lost USB key has never been recovered.
II. THE ISSUES
32Mr. Williams challenges the admissibility of any evidence obtained from the iPhone. He submits that the evidence was obtained in violation of his rights under section 8 of the Charter. The following issues arise:
a. Standing – Has Mr. Williams met his onus of establishing that he had a reasonable expectation of privacy concerning the contents of the stolen iPhone?
b. The Manner of Search – Did police bypass the terms and conditions which the issuing justice placed on the second warrant?
c. Facial Challenge – Was the second warrant so vague and overly broad that it could not properly have been issued?
d. Subfacial Challenge – Did D.C. Kremer intentionally omit relevant information in the ITO to mislead the issuing Justice and, if so, could the second warrant have been issued if the complete facts had been disclosed?
e. Failure to Report to Justice – Did the repeated failure to file reports to a justice concerning the seizure of property violate Mr. Williams’s Section 8 rights?
f. Failure to Maintain Privacy – Did police violate Mr. Williams’s section 8 rights when they lost the USB key containing a readable version of his private data?
g. Section 24(2) – If the police conduct did violate section 8 in some or all of these regards, should the evidence obtained from the phone be excluded from his trial?
III. ANALYSIS
A. Standing
33To establish a breach of his section 8 rights, Mr. Williams must first establish on a balance of probabilities that he had a reasonable expectation of privacy in the iPhone. The Crown concedes that Mr. Williams had a subjective expectation of privacy but questions whether that expectation was objectively reasonable. The Crown’s factum argued that the phone was stolen, Mr. Williams knew that it was stolen, and an accused person cannot claim an expectation of privacy in stolen property. Moreover, a reasonable person in the place of Mr. Williams would have foreseen that police could track the stolen phone which would significantly diminish any expectation of privacy.
34Although the Crown raised these arguments in its factum, Mr. Fried ultimately conceded that it would be “safest” to find that Mr. Williams does have standing to challenge the search. I accept the Crown concession and do find that Mr. Williams has standing, but the extent of his expectation of privacy arises again in assessing the admissibility of evidence under section 24(2). For that reason, I will explain my findings regarding standing in some detail.
35In deciding whether an accused has a reasonable expectation of privacy over evidence seized by the state, the court must consider the totality of the circumstances. As summarized in R. v. Mills, 2019 SCC 22, [2019] 2 SCR 320, at para. 13, that inquiry is guided by four considerations:
(1) an examination of the subject matter of the search.
(2) A determination as to whether the claimant had a direct interest in the subject matter.
(3) An inquiry into whether the claimant had a subjective expectation of privacy in the subject matter.
(4) An assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.
36The subject matter of the search was the data recorded on the iPhone during the three weeks that Mr. Williams possessed it. That data included his electronic messages, photos, videos, browsing history and location data. There is no dispute that this constitutes core biographical information and Mr. Williams had an interest in it.
37There is also no dispute that Mr. Williams subjectively believed his data was private. Access to the phone was protected by a six-digit passcode and Mr. Williams stored sensitive data on the phone including videos of himself posing with firearms. His use of the phone supports the inference that he believed that his data was private.
38The only question is whether Mr. Williams’s expectation of privacy was objectively reasonable.
39The Crown submits that the iPhone was stolen and urges me to find that Mr. Williams knew that it was stolen. There are numerous authorities which stand for the proposition that a party cannot claim an expectation of privacy in property which was obtained by crime: See R. v. Balendra, 2019 ONCA 68, 372 C.C.C. (3d) 318, at para. 54; R. v. Van Duong, 2018 ONCA 115, 404 C.R.R. (2d) 281, at para. 6; R. v. Caza, 2015 BCCA 374, [2015] BCJ No 1839 (QL), at para. 29; and R. v. Dosanjh, 2022 ONCA 689, 163 O.R. (3d) 491, at para. 130.
40The Crown relies on the following evidence to support its contention that the iPhone was stolen:
i. The admitted fact that Maria Gonzalez was the owner of the phone “up until” September 3, 2018, and that Mr. Williams was in possession of it by 2:48 am on September 3.
ii. The occurrence report prepared by Peel Regional Police recounting the details of the robbery.
iii. A letter signed by Maria Gonzalez stating that she was the victim of a robbery which occurred on September 2, 2018, and that her iPhone was stolen.
iv. Photographs of the iPhone taken by D.C. Flores demonstrating that the Apple Identification and other data relating to Maria Gonzalez was visible on the phone when he examined it.
41Defence counsel resists a finding that the phone was stolen. Mr. Salloum submits that Maria Gonzalez did not testify on this application and the agreed statement only establishes that she had possession of the phone until September 3rd, not that she lost it through theft or robbery. The balance of the evidence is hearsay and the defence has not conceded the truth of its contents.
42I have no difficulty in finding that the phone was stolen. The documentary record filed by the Crown on the Charter application was received into evidence without caveat by the defence. The Crown’s factum stated as a fact that the phone was stolen, and that assertion was never challenged in the evidential phase of this application. Indeed, the applicant’s own factum acknowledged that the phone had been stolen from Ms. Gonzalez.1 The documentary evidence filed by the Crown on this Charter application is admissible for the truth of its contents absent any challenge by the defence and those records satisfy me that the phone was stolen.
43The harder question is whether Mr. Williams knew that it was stolen. The Crown points out that he was in possession of the phone less than three hours after the robbery occurred. Ms. Gonzalez’s data had not been erased when Mr. Williams entered his own account information onto the phone, suggesting that he must have seen that the phone already held an account entitled “Maria’s iPhone”. The fact that the previous owner had not erased her data prior to relinquishing the phone would have alerted Mr. Williams to the possibility that the phone was stolen.
44Defence counsel argue that whoever committed the robbery may have disposed of the phone quickly by selling it to an unwitting Mr. Williams. There is no direct evidence that he knew the phone had been obtained by crime and his use of the phone permits the inference that he did not know that it had been stolen. If he had known that the phone was stolen and could be seized at any time by police, Mr. Williams would not have saved videos of himself holding firearms or used the iPhone to conduct Google searches to identify targets for armed robberies.
45Mr. Williams bears the onus of establishing that he has standing to challenge the search. That onus may be met based on inferences drawn from the circumstantial evidence. In this case, I am hesitantly prepared to find on a balance of probabilities that Mr. Williams did not know that the phone was stolen. It is a very close call.
46Furthermore, even if I was satisfied that Mr. Williams knew the phone was stolen, that finding would not be determinative of his expectation of privacy. Ownership of the item which is searched is a relevant but not determinative factor in deciding whether an expectation of privacy is objectively reasonable: R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 39. The analysis turns on the privacy of the information being searched, not the device that contains it.
47The privacy interest in data collected by a cell phone is very high. Maria Gonzalez’s iPhone began to record Mr. Williams’s personal data the moment that he picked it up. This data included core biographical information such as the websites that he searched, the photographs that he took, his contact lists, his messages, and even his movements. Some of this information was collected automatically, likely without the knowledge of Mr. Williams.
48In my view, such information is so fundamentally private that Mr. Williams would retain a reasonable expectation of privacy even if he knew the phone was stolen. A reasonable person carrying a stolen phone would recognize that police could seize the phone without warrant, but that does not mean that police could conduct an unrestrained search of the data on the phone without judicial authorization. Even if the phone was returned to Maria Gonzalez and she found Mr. Williams’s data on it, police would not have unfettered access to Mr. Williams’s data. The phone belongs to Ms. Gonzalez, but the data belongs to Mr. Williams.
49I find that, in the totality of the circumstances, Mr. Williams did have a reasonable expectation of privacy concerning the data which was recorded by the phone after it came into his possession.
50A secondary question arose as to whether Mr. Williams’s expectation of privacy was diminished by the fact that Maria Gonzalez’s Apple account remained on the phone throughout the time that Mr. Williams was using it. Many iPhones are equipped with an application called “Find My iPhone”, which permits the owner of the phone to locate it when the phone is connected to the Internet. It may also be possible for the registered user to access data on the phone, provided that the data is backed up to the iCloud server. No formal evidence was called to prove these matters, but both parties made submissions as to whether a reasonable person in Mr. Williams’s position would have foreseen the possibility that Maria Gonzalez would attempt to find her phone using GPS location software or access its data remotely.
51A prudent cellphone user might be hesitant to record important passwords, conduct banking transactions or engage in privileged professional communications on a second-hand phone which had not been wiped clean. The concern would be that another party (such as the registered user) would still be able to access information recorded by the phone. Even if the original user did not attempt to recover information, a third-party could have installed surveillance software on the phone. These possibilities might suggest that it is unreasonable to expect privacy in a second-hand phone.
52I do not accept that conclusion. For practical purposes, it may be unwise to conduct private transactions on a phone of uncertain origin, but the risk that another person may come into possession of the information does not diminish the legal expectation of privacy. That point was settled by the Supreme Court of Canada in R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 41:
The cases are clear: a person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it. Even where “technological reality” (Cole, at para. 54) deprives an individual of exclusive control over his or her personal information, he or she may yet reasonably expect that information to remain safe from state scrutiny. Mr. Marakah shared information with Mr. Winchester; in doing so, he accepted the risk that Mr. Winchester might disclose this information to third parties. However, by accepting this risk, Mr. Marakah did not give up control over the information or his right to protection under s. 8.
53Although I do find that Mr. Williams had an expectation of privacy in his data, the expectation is slight. Mr. Williams did not testify on the application and his silence was notable. He could have explained how he obtained the phone and why those circumstances caused him to believe that his data would remain private. He might have described his efforts to enhance the security of his data or disable applications which automatically recorded his activities. Mr. Williams did not provide any such evidence and instead relied on circumstantial evidence to make out his expectation of privacy. While he is not obliged to testify to establish standing, the evidence has not made out a robust expectation of privacy. That is a relevant factor in deciding the impact of any Charter breach on Mr. Williams’s privacy rights.
B. The Manner of the Search
Did police bypass the terms and conditions of the warrant?
54The applicant submits that the October 2019 warrant contained conditions which were intended to constrain the search of the device and police ignored those conditions. Defense counsel alleges two violations of s. 8 of the Charter:
a. The tech crimes officer who extracted the data from the phone failed to abide by the terms of the warrant. The terms of the warrant were intended to constrain the search and that could easily have been accomplished by applying data filters which were available in the extraction software. The officer did not make any effort to abide by the conditions of the warrant and instead gave investigators the entire contents of the phone.
b. The officers who reviewed the extracted data failed to inform themselves of the conditions of the warrant. They accepted the unfiltered data and conducted unrestricted searches which went far beyond what had been authorized by the issuing JP. Their searches uncovered evidence connecting the accused to three shootings which would never have come to light if the conditions of the warrant had been observed.
55The Crown submits that the defence reads the warrant too narrowly. The tech crimes officer (D.C. Flores) was not required to apply the limitations when he extracted the data. D.C. Flores knew nothing of the investigation when he analyzed the contents of the cell phone and he was in no position to assess what information fell within the parameters of the warrant. That was the responsibility of the investigating officers who would search the data.
56The Crown acknowledges that the officer who searched the data (D.C. Roth) did not properly inform himself regarding his authority to search. The Crown maintains, however, that D.C. Roth did confine his search to relevant aspects of the data and his actions were authorized by the warrant.
The Evidence on the Voir Dire
D.C. Flores
57D.C. Flores had worked in the Toronto Police Service’s Technical Crimes Unit for five years at the time he became involved in this case. His work frequently entailed executing warrants to search locked cellphones. He testified that his first step in every investigation was to confirm that a warrant had been issued and then to review the terms of the warrant to determine if there were any judicially imposed limits to the search. Having determined the parameters of the search, he would then employ a decoding program to break the passcode of the phone. Once the passcode had been broken, he would extract all data from the phone using the Cellebrite Advance program. D.C. Flores would next use the Cellebrite Physical Analyzer program to convert the extracted data into a readable format. In this case, he converted all the data into a single PDF document of approximately 44,000 pages.
58Cellebrite Physical Analyzer provides the user with many options to filter the data to be included in the final readable document. It is possible, for instance, to filter the data so that only those files created within a certain time frame appear in the final report. It is similarly possible to designate the type of files which are included in the report. The filters allow the user to screen out irrelevant information or, in this case, information which was outside the scope of the authorization to search.
59D.C. Flores did not employ any filters when he converted the data into a PDF file. He testified that when he read the warrant to search the iPhone, he recognized it as familiar boilerplate which did not include any limitations.
60The relevant passage of the warrant reads as follows:
d. A member of the Toronto Police Technological Crimes section will extract data relating to:
i. Communications - in relation to the victim and suspects.
ii. A timeline of activity in relation to pre -offence, offence and post offence behaviour and usage.
iii. Ownership details identifying primary ownership and primary user or user information.
iv. Multimedia content which includes but is not limited to pictures, videos and sound recordings.
v. Passwords, encryption keys and access codes required for access device and software configuration settings including geographic location information.
61D.C. Flores was asked what he would consider to be a judicially imposed limitation on data extraction. He gave examples of temporal limitations or limitations regarding the types of files which could be extracted.
62D.C. Flores was asked in cross-examination how he would implement the terms of paragraph (d)(i), “communications in relation to the victim and suspects”. He responded that he would not attempt to apply such a term because he knew nothing about the investigation, and it would be impossible for him to identify and distinguish the communications of suspects and victims. He explained that he relied on the investigators who reviewed the data to ensure that their search was within the parameters of the warrant. He provided those officers with the Cellebrite Reader program to allow them to filter the extracted data themselves and reminded them of their responsibility to observe the terms of the warrant by including a disclaimer with the extracted file. He included the disclaimer in the digital folder holding the extracted data under the title “README”. The disclaimer reads as follows:
Be aware of the following:
This package has not been reviewed by a forensic examiner.
This package likely contains data that is outside the scope of your search authority. Treat it with caution and document handling so as to avoid any breach of privacy issues.
You must:
Conduct your search of this data in a manner consistent with your search authority.
Carefully document the process used to search this data in the event you are called to testify in court about how you searched (e.g. what keywords you used, what date range filters, etc.)
Convey this information to any other investigator that will handle this data.
63Neither the Crown nor the defence were aware of this disclaimer prior to D.C. Flores’s testimony on the voir dire. In his evidence-in-chief, D.C. Flores testified that he provided the disclaimer as a matter of course whenever he provided extracted data to investigators. Recognizing that the disclaimer might be relevant to this application, he had contacted D.C. Haljaste (a current member of the Tech Crimes unit) shortly before trial and asked him to look at the electronic folder to confirm that the disclaimer was there. D.C. Haljaste found that it was. D.C. Flores printed the disclaimer and produced it to the Crown shortly before commencing his testimony.
Detective Sergeant Allington
64Det. Sgt. Allington received the PDF file from the Tech Crimes Unit on a USB key. Before reviewing it, he read the warrant to confirm his authorization to search. He was aware that the PDF file was a complete extraction of the iPhone and that did not surprise him. In his experience, a full extraction was customary in murder investigations.
65Det. Sgt. Allington did not recall seeing the disclaimer form on the USB key. The substance of the disclaimer, however, was familiar to him. Det. Sgt. Allington knew that D.C. Flores knew nothing of the investigation and did not expect the tech crimes officer to review the data. Det. Sgt. Allington understood it was his obligation to ensure that any search of the data was confined to matters which were relevant to the investigation and authorized by the issuing justice.
66Det. Sgt. Allington testified that Ms. Gonzalez first came to his attention when he was reviewing the pictures folder of the iPhone. In re-examination by Mr. Grill, Det. Sgt. Allington acknowledged that he knew his subsequent search for information to identify Ms. Gonzalez was outside the scope of the warrant but he believed the search was necessary for his investigation.
D.C. Roth
67D.C. Roth had been serving in the homicide unit for only two days when he was assigned to search the data extracted from Mr. Williams’s cell phone. Over the course of the ensuing 14 months, D.C. Roth recorded 972 pages of notes concerning that search. He testified that he made a note of everything that he viewed as he examined the data.
68It is not clear what D.C. Roth knew about his authorization at the outset of his search. He recalled that Det. Sgt. Stephenson briefed him regarding both homicides and he read an ITO for a related single party consent interception which provided him with some background information. He was inconsistent on the question of whether he read D.C. Kremer’s ITO. He ultimately decided that he had but couldn't say when. He was certain that he did read the signed warrant, the conditions on the warrant and the disclaimer which D.C. Flores included in the electronic folder.
69Despite having read the warrant and accompanying conditions, D.C. Roth came to three mistaken beliefs:
a. That he was authorized to search the extracted data only for evidence of offences committed between September 14 to 18;
b. That he was not entitled to search for evidence concerning events which occurred prior to September 14; and
c. That the search warrant was granted in relation to both murders.
70When asked how he came to these misunderstandings, D.C. Holt replied that he relied “on information received in relation to the investigation that we had judicial authorization to review the phone within those timelines… and at some time… I looked at the signed affidavit.”2
71Mr. Grill challenged D.C. Roth regarding five aspects of his search which allegedly fell outside of his self-imposed date range of September 14 to 18:
i. The investigation of data relating to the SCAS shooting on September 12.
ii. Evidence that Mr. Williams searched for “spas in North York” on September 3.
iii. GPS location data showing that Mr. Williams was at 415 Willowdale Avenue on September 13.
iv. A video created on September 24, 2018 showing an associate of Mr. Williams (Shaquane Stewart) holding a firearm.
v. Evidence of a Snapchat login using Mr. Williams’s username which occurred on August 16, 2018.
72Mr. Grill questioned D.C. Roth on how he discovered evidence concerning the September 12 shooting at SCAS if he was only searching for offences committed between September 14 and 18. D.C. Roth explained that he was reviewing Mr. Williams’s web searches on September 15 and noticed a Safari search for information regarding high school shootings in Toronto. He did not know anything about the SCAS shooting but knew that the investigators would be interested in the fact that Mr. Williams was seeking out information about a shooting. D.C. Roth began to search other sources and learned that there had been a shooting at SCAS on September 12. He then discovered that Mr. Williams had been charged with that offence. D.C. Roth searched the extracted data for evidence concerning Mr. Williams’s activities on September 12 and found incriminating text messages sent to his girlfriend (Tishawna Tudor-Lawrence), Wi-Fi data showing that the phone connected to the SCAS wireless network on the morning of the shooting and GPS data placing Mr. Williams at SCAS at the time of the shooting. D.C. Roth acknowledged that the SCAS shooting did not fall within what he understood to be the temporal limits of his authorization to search, but he felt that the shooting was relevant to the homicide investigations. The fact that Mr. Williams was in possession of a gun on September 12 demonstrated that he had access to a firearm only two days before the Aziavor murder. It was also possible that the SCAS shooting could reveal a motive for one or both murders. Lastly, D.C. Roth believed that he was authorized to note evidence of other offences which came to his attention as he searched for evidence related to the murders.
73Mr. Grill asked D.C. Roth how he found evidence that Mr. Williams had searched the phrase “spas in North York” on September 3. The officer testified that he noticed the search as he was scrolling through website searches in the browser history. D.C. Roth explained that he had tried to use the Cellebrite Reader program to filter the information in the PDF file, but he was unable to operate the program. He consequently had to scroll through the massive PDF file using only bookmarks. As he scrolled through the data, he would occasionally see files which were created outside of the September 14-18 window but were pertinent to his investigation. This is how he discovered the September 3 search. D.C. Roth was aware that Mr. Anderson and Mr. Williams had committed a spa robbery on September 3 and that they were in the process of committing another spa robbery on September 18 when Mr. Anderson was shot. D.C. Roth suspected that the two men might have researched sites for potential robberies and the fact that Mr. Williams researched a site on September 3 could be relevant to the events of September 18.
74Mr. Grill next inquired how D.C. Roth had uncovered GPS data from September 13 which showed that Mr. Williams was at 415 Willowdale Avenue. D.C. Roth explained that Mr. Williams was arrested at that address on September 24 and, in his view, the fact that he was at 415 Willowdale on September 13 could be relevant to planning the murder which occurred on September 14. D.C. Roth believed that it was permissible to search slightly outside of the September 14 to 18 range.
75D.C. Roth agreed that the video showing Shaquane Stewart with a firearm was created on September 24 and was therefore outside of what he understood to be the temporal limits of the authorization. He explained that when he opened the video folder in the PDF file, he happened to see a still image showing a firearm. He was not intentionally searching that date range but when he saw the still image, he played the video and realized its potential significance to the investigation. Shaquane Stewart was associated with the address of 120 Torresdale Avenue, the location where Mr. Williams was believed to have fired two guns on September 14. One of the firearms which he discharged that night had been the weapon that evening to kill Mr. Aziavor. Any evidence that connected Mr. Williams to Mr. Stewart assisted in proving Mr. Williams’s identity as the shooter at Torresdale Avenue.
76D.C. Roth found evidence that Mr. Williams had logged into his Snapchat account on August 16, 2018. He forwarded this information to the officer in charge with the message, “we think you’ll like these details.” D.C. Holt had no recollection of this discovery or the reason for forwarding it to the officer in charge. This information was apparently imported from Mr. Williams’s iCloud account since he did not have possession of the phone in August 2018.
77D.C. Roth agreed that he was shocked when Det. Sgt. Stephenson told him on September 23, 2020 that the warrant did not include the murder of Mr. Aziavor on September 14, 2018. He denied Mr. Grill’s suggestion that he had not read the warrant and maintained that he had simply missed this salient fact. Det. Sgt. Stephenson had told him that the warrant did cover the Aziavor homicide, and he relied on her instructions.
Mr. Stephen Ellwood
78The applicant called Mr. Stephen Ellwood to give expert testimony regarding cell phone extraction, the analysis of extracted data and the use of Cellebrite software. Mr. Ellwood is a consultant who is retained by law firms and other businesses to conduct forensic examinations of cell phones and other digital devices. He testified that his company is the principal digital analyst for the Law Society of Ontario. Mr. Ellwood has no experience in conducting police investigations and has never been called upon to assist in the execution of a warrant in a criminal investigation.
79Mr. Ellwood testified that firms which retain his services are rarely interested in receiving a report which includes all the data on a digital device. He customarily employs search parameters when analyzing extracted data to obtain evidence which is limited by time or types of data.
80Defence counsel asked Mr. Ellwood to review the restrictions which appear in A2 of the September 2019 warrant and explain how he would apply those restrictions. Mr. Ellwood used paragraph D(1) to illustrate how the filtering capabilities of the Cellebrite software could be used to extract the requested data while observing the limits of the judicial authorization. He would first ask the investigators for the names or telephone numbers of the victim and the suspect. Once he had that information, he would go to the contact list of the phone to obtain associated information such as email addresses, social media handles and other telephone numbers. If that information could not be obtained from the contact list, he would advise counsel to bring a motion to compel the cell phone service provider to disclose identifying information for the customer who subscribed to the telephone number.
81With the identifying information of the victim and suspect in hand, Mr. Ellwood would use the filtering functions available in Cellebrite Physical Analyzer to extract only messages which had been exchanged between those two parties. The call logs could be extracted in the same fashion. Temporal parameters could be applied to further narrow the searches to information relevant to the investigation.
82Mr. Ellwood was asked how he would determine the ownership of a cell phone. He explained that ownership details can be obtained in several places including the device information folder of the phone. He recommended going to the device information to obtain the Apple ID of the user and then reviewing correspondence on the phone to determine the name that correspondents used when addressing the owner of the device. In Mr. Ellwood’s experience, an investigator can generally determine who owns a phone by determining the telephone number and then obtaining the subscriber information for that account from the service provider.
83Mr. Ellwood was also asked how he would search the images and videos on the device while remaining within the parameters of the authorization. He testified that relevant images could be targeted using artificial intelligence (hereinafter “AI”). Software is now available which will search image folders and extract only images which match a certain description, such as “guns” or “drugs”.
84Mr. Ellwood testified that he is generally able to conduct his investigations on behalf of his clients without having any knowledge of the case. In his view, it is not necessary to know the details of a case to be able to identify communications between known parties and extract the communications that occurred within a defined time frame. Such investigations can be completed within a matter of hours.
Did D.C. Flores violate the applicant’s section 8 rights by failing to filter the data extracted from the iPhone?
85The applicants acknowledge that it was necessary to extract all the data on the phone to ensure the integrity of the data. Mr. Salloum submits that the search which violated Mr. Williams’s section 8 rights began when D.C. Flores converted the extracted data into a readable format without filtering out information which was not authorized by the warrant. Mr. Salloum submits that the terms of the authorization required that a tech crimes officer extract the data and ensure that only data which conformed to the authorization was turned over to investigators. The filters available in the Cellebrite software were ideally suited to that task. Based on the expert testimony of Mr. Ellwood, D.C. Flores did not need to have any knowledge of the investigation to apply basic filters and comply with the terms of the warrant.
86I will begin with my factual findings concerning the testimony of D.C. Flores. There is no doubt that the officer had significant flaws as a witness, but I do accept his evidence on the material points.
87I am firstly satisfied that he did include the disclaimer in the electronic file which he gave to Det. Sgt. Allington. D.C. Flores testified that this was his invariable practice and D.C. Haljaste confirmed that the disclaimer is still in the electronic folder which D.C. Flores saved on the Tech Crimes server. D.C. Haljaste also corroborated D.C. Flores’s testimony that members of the unit are trained to provide the disclaimer in every case. I reject the possibility that D.C. Flores engaged in an elaborate obstruction of justice by adding the disclaimer to the electronic folder after having left his post at the Tech Crimes Unit.
88This finding assists me in accepting D.C. Flores’s testimony that he relied on the investigating officers to restrict their search to what was authorized by the warrant. In my view, it is simply not feasible for a tech crimes officer such as D.C. Flores to familiarize himself with the details of a complex murder investigation such that he could apply appropriate filters to the extracted data.
89A similar submission was made in the case of R. v. Musara, 2022 ONSC 3190, 511 C.R.R. (2d) 1. Justice Nakatsuru dismissed the argument at paras 201-205:
[203] From a practical perspective, the HTET investigators have the knowledge to make decisions about relevance. The Tech Crime officers do not. The applicants submit that a Tech Crime officer could get input from or consult with the investigators to do this. However, given the nature and scope of the duties the Tech Crime officers have, this would be impractical. It makes more sense that once the report is given to investigators, they should be the ones to determine relevance as required by the warrant. While practical exigencies do not take precedence over search warrant conditions, those conditions should not be interpreted in a manner that would make police investigations unworkable.
90Defence counsel submit that it was not necessary for D.C. Flores to be fully apprised of the investigation to apply basic filters which would ensure compliance with the authorizing warrant. They rely on the evidence of Mr. Ellwood.
91Although I accept Mr. Ellwood’s expertise and the substance of his evidence, I did not find it helpful in this case. Mr. Ellwood acknowledged that he has no experience in conducting police investigations and that was apparent from his evidence. The investigative steps which he described may well be appropriate for the work which he does on behalf of the Law Society of Ontario, but they would not be at all effective in the investigation of street crime.
92Mr. Ellwood gave detailed testimony concerning the steps that he would take to identify the user of a cell phone and extract only the communications between the user of that phone and another named party. The methods which he described are no doubt effective when investigating people who subscribe for telecommunications services on a contract basis, use the same telephone number for prolonged periods of time and maintain well-organized contact lists. They are much less likely to be effective in investigating street criminals who do not subscribe for cellular service, often use telephone numbers obtained through Internet communication applications, and studiously avoid using proper names for themselves or their associates.
93I take judicial notice of the fact that it is exceedingly rare for a phone used in street crime to have a registered cellular service plan. If such a phone has a service plan at all, it is invariably a Pay-As-You-Go plan, which does not require proof of identity to obtain the service. User accounts are registered in fictitious names which have wide variations in spelling and convey nothing about the actual identity of the user. The identifying information found on this phone was typical. The username for Mr. Williams’s TextNow account was jackboyglizz@icloud.com with a username of “glizzman”. The account for Snapchat was “Jackboytorri” with a username of “swagjaedyn”. There is no evidence that Mr. Williams ever subscribed for telecommunications services. All his communications were conducted via the Internet using Wi-Fi networks.
94It is implausible to suppose that the ownership and, more importantly, the use of this phone could be determined through contact lists or service provider records. Even if such records could establish who owned the phone, that would only be a preliminary step in most criminal investigations. The matter which is principally at stake in a criminal investigation is the identity of the user of a phone during the planning or execution of the offence. Determining the identity of the user at any given moment frequently demands a nuanced examination of overlapping evidence. The use of a phone at a particular moment might be proven, for instance, by video surveillance evidence which shows the suspect initiating a call at the moment that extracted call data records show that a call was made. Only an officer who is familiar with all the details of an investigation could recognize the overlapping evidence and appreciate the significance of the call detail record. This type of investigative groundwork would be jeopardized if investigators only received data which is extracted by software filters.
95With respect, I must also reject Mr. Ellwood’s proposal that Tech Crimes officers could employ AI software to scan extracted images and filter out only the images which depict relevant items.
96The AI software described by Mr. Ellwood might be employed as an investigative aid to search immense collections of images, but such software would inevitably fail to return images which could prove associations between parties, identify common meeting locations, and a host of other information which can be crucial in a criminal investigation. The investigation of street crime is a nuanced, intuitive process. Whatever advances may have been made in the field of artificial intelligence, software cannot replace the insight of experienced investigators.
97The warrant in this case expressly authorized police to search the extracted data to determine who owned the phone and who used it. At the time the phone was seized from Mr. Williams, there was no way of knowing whether it belonged to him, how long he had it and what he used it for. It was critical to the investigation of two murders that those questions be answered. Virtually any record kept by a cell phone, whether it be of conscious or unconscious activity, could reasonably have provided an investigating officer with some evidence of identification. The warrant authorized that search and only officers who were fully apprised of the details of the investigation would have been able to conduct it.
98I do not find any Charter violation arising from the extraction of the data or the act of providing the unfiltered data to investigating officers. It was the obligation of the investigators, not the Tech Crimes officer, to search the data within the parameters of the warrant.
Did the searching officers ignore judicial limits?
Det. Sgt. Allington
99Det. Sgt. Allington received a warrant authorizing him to review data extracted from the iPhone to determine who owned the phone. The warrant did not limit his review to specific dates or file types.
100The ITO in support of the warrant cited photos and video collections as a primary means of determining the ownership of a phone. Det. Sgt. Allington’s investigation of Maria Gonzalez immediately established that any data on the phone which had been recorded before September 3 was irrelevant to the investigation and that any activity after that date could almost certainly be ascribed to Mr. Williams. This is precisely the type of information which D.C. Kremer had anticipated would be found in the photos folder. There is no doubt that the issuing JP understood and approved the search of the photos folder when granting the warrant.
101Det. Sgt. Allington testified that he never saw the disclaimer which D.C. Flores included in the electronic folder. It was suggested that he did not read the disclaimer, was unaware of the constraints which had been imposed on the search and consequently conducted an unrestrained search of the extracted data. Det. Sgt. Allington responded by pointing to his long experience in conducting warranted searches and his understanding that every search is confined to evidence which might reasonably be relevant to the investigation. This well understood principle of search and seizure law is described in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 61:
By now it should be clear that my finding that a search protocol was not constitutionally required in this case does not mean that once police had the warrant in hand, they had a licence to scour the devices indiscriminately. They were bound, in their search, to adhere to the rule that the manner of the search must be reasonable. Thus, if, in the course of their search, the officers realized that there was in fact no reason to search a particular program or file on the device, the law of search and seizure would require them not to do so.
102I do not find any evidence that Det. Sgt. Allington’s search exceeded the bounds of the authorization.
D.C. Roth
103Mr. Salloum raised the following arguments in his factum regarding the search conducted by D.C. Roth:
i. The affiant assured the issuing JP that officers would search the data only for communications between the suspect and victim, yet D.C. Roth’s search extended to third parties such as Ms. Tudor-Lawrence.
ii. D.C. Roth searched the data in a cavalier manner that ignored any constraint and amounted to “strip-mining” the phone.
iii. The terms of paragraph 2(d) of the warrant were so vague and unworkable that the searching officer (identified in the factum as D.C. Flores) was “duty-bound” to decline to search at all rather than search indiscriminately in a fashion which guaranteed that non-authorized material would be found.
104I reject the submission that the warrant limited the search to communications between the suspect and the victim. Paragraph 1(d)(i) of Appendix A2 permitted the search for “Communications - in relation to the victim and suspects”. The basis for that authorization is illuminated by the portion of D.C. Kremer’s ITO entitled “Detailed List of Conditions Recommended”. In the list of recommended conditions, D.C. Kremer requested authorization to search for communications between the suspect, victim and any known or unknown persons. He provided a lengthy description of the types of communications which he believed would be found. When the ITO and warrant are read conjunctively, it is unmistakable that D.C. Kremer was requesting authorization to conduct a broad search of all communications found on the phone. There is no basis to suggest that D.C. Holt exceeded the terms of the authorization by searching for communications between Mr. Williams and parties other than Mr. Anderson.
105There is equally no basis to suggest that D.C. Roth was cavalier in his search of the data. He carefully documented his searches in over 900 pages of notes. The defence took issue with only five aspects of the search. The suggestion that D.C. Holt’s search of the data was “cavalier” must be considered in context. By the time D.C. Holt prepared his first report, he was aware that Mr. Williams had participated in a spa robbery on September 3, a school shooting on September 12, and the shootings at Torresdale Avenue and Alder Road on September 14. D.C. Holt was investigating the possibility that Mr. Williams had also committed murders on September 14 and 18. Given that Mr. Williams came into possession of the phone only on September 3 and lost possession of it on September 24, it can safely be said that police had a legitimate interest in virtually any activity of Mr. Williams during that short but volatile three-week period. Cross-examination on the voir dire did not reveal any occasion when D.C. Roth conducted an irrelevant or unnecessary search of the data.
106The submission that investigators were duty-bound to decline to search the data due to the unworkable conditions of the warrant is premised on the notion that the search could be conducted only by a Tech Crimes officer using the data filtering capabilities of Cellebrite software. For reasons previously stated, I reject that submission.
Arguments arising from cross-examination and oral submissions
107In his cross-examination of D.C. Roth, Mr. Grill demonstrated that the officer had misconstrued his authority to search the extracted data. D.C. Roth failed to recognize that the warrant authorized a search for evidence related only to the Anderson homicide and he imposed a temporal limit on his search which had not been required by the issuing JP. Although the officer maintained that he strictly adhered to his mistaken understanding of the authorization, Mr. Grill identified five instances where D.C. Roth had noted evidence which was outside of the September 14-18 time frame. Mr. Grill submits that these five instances demonstrate that D.C. Holt showed little or no regard for the judicial authorization and instead conducted an unrestrained search of the data.
108D.C. Roth struggled to explain why he believed that he was only entitled to search the extracted data for evidence of offences committed between September 14 to 18. There was no temporal limit to the search and that should have been apparent from reading the ITO.
109The Crown concedes that D.C. Roth’s understanding of his authority to search was flawed but submits that his errors only worked to the detriment of the investigation and are inconsequential to the legality of the search. Mr. Fried submits that the officer’s understanding of his authority to search is irrelevant if the search which he conducted was authorized. The Crown relies on R. v. Miller (1987), 62 O.R. (2d) 97, at para. 20:
In my view, the fact that the investigating officer misconceived his right to seize the bandage as incident to the lawful arrest and purported to seize under an invalid warrant is not a conclusive factor in determining the validity of the search or seizure. If the right to seize the bandage is valid independent of the warrant, the warrant may be regarded as surplusage.
110Although Miller is now a dated authority, I accept that it correctly states the law. There are circumstances in which an officer's subjective belief regarding the authority to search is a necessary element of a lawful search, but this is not one of them. The authority to search had been granted by a judicial officer. D.C. Roth’s only responsibility was to implement that search within the confines of relevance and materiality. It is obviously desirable that police inform themselves of their authority before undertaking a search, but if the authority does exist and the search does not exceed its bounds, the officer’s misunderstanding does not render the search unlawful.
111I have no difficulty in finding that D.C. Roth’s search conformed to the terms of the authorization. The warrant permitted the search of the extracted data for evidence relating to the September 18 murder of Mr. Anderson. The fact that Mr. Anderson and Mr. Williams were believed to have jointly committed a murder only four days earlier is obviously a potential motive for the killing of Mr. Anderson. As the ITO makes clear, Mr. Anderson was an eyewitness to the murder of Mr. Aziavor and Mr. Williams was believed to be one of the perpetrators. Based on the factual connection between the two murders, the authority to search for evidence of the September 18 murder necessarily encompassed any evidence concerning the September 14 murder as well as any other firearms-related offence committed by Mr. Williams between September 3 and 24.
112If I am mistaken in my reliance on Miller, I would nevertheless dismiss the challenge to D.C. Roth’s search based on the facts. Mr. Grill’s cross-examination revealed only five occasions when D.C. Holt’s search strayed outside of his self-imposed temporal limit. Defence counsel maintained that those five instances demonstrate that D.C. Roth had no reluctance to search outside the parameters of what he believed to be his authorization if doing so had some possibility of implicating Mr. Williams in a criminal offence. I do not accept that submission.
113D.C. Roth took voluminous notes as he reviewed the extraction report, and there was no evidence that he reviewed records which were not relevant or probative of the two murders. The officer’s report reveals five findings which were outside of the September 14-18 time frame, but only two of those findings were material to the investigation: the evidence of Mr. Williams’s involvement in the SCAS shooting on September 12 and the fact that he searched “spas in North York” on September 3.
114The fact that Mr. Williams was in possession of a gun on September 12 at SCAS was obviously relevant to the investigation of the Anderson homicide on September 18. D.C. Roth only learned of the SCAS shooting when he found a Safari search conducted by Mr. Williams on September 15. He confirmed through police sources that Mr. Williams was charged with the SCAS shooting which anchored his belief that evidence of that shooting could be relevant to the murder of Mr. Anderson. Far from conducting an unrestrained search of the data, D.C. Roth was performing his assigned task of locating evidence relevant to the murder and to have ignored the events of September 12 would have been negligent on his part.
115D.C. Roth testified that he noticed the search for “spas in North York” as he was scrolling through the website searches in the phone’s browser history. He acknowledged that this evidence fell outside of his self-imposed September 14-18 date range but, based on the information set out in the ITO concerning spa robberies committed by Jatorri Williams and Jago Anderson, he felt that it was relevant and should be seized. His evidence raises the plain view doctrine as it applies to the search of electronic devices.
116The plain view doctrine does apply to searches of electronic devices. As stated by Justice Blair in R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at para. 64:
Moreover, I do not think it can be said that, because information on a computer is not visible to the human eye, but requires the use of a software program to access it, it is not in “plain view”. Once a file is opened by the computer programmer using the software, its contents can be read, and “plain view” comes into play, as the court noted in Williams.
117I accept D.C. Roth’s evidence that he noticed the search for spas as he was navigating to later web searches on the phone. The search terms resonated with important aspects of the investigation, and it is understandable that D.C. Roth would immediately recognize its potential significance. Even if the warrant had limited D.C. Roth to examine only records between September 14 and 18, he would not have been required to ignore evidence which he unintentionally discovered as he went about his task.
118More importantly, the warrant did authorize a search of the browser history from September 3 to 18. D.C. Allington discovered that Mr. Williams came into possession of the phone on September 3. Paragraph (d)(iii) of the warrant authorized D.C. Roth to search the phone for any evidence which would establish a timeline of Mr. Williams’s activity before and after the offence. The ITO discussed the issue of motive at length and explained why it was necessary to search all the extracted data to see if they would provide any clue as to why Mr. Williams would have shot Mr. Anderson on a night when they had successfully robbed one spa and were on the verge of robbing another. Any evidence relating to prior spa robberies committed by either Mr. Williams or Mr. Anderson had the potential to be relevant to the investigation.
119D.C. Roth’s search also uncovered evidence of Mr. Williams’s involvement in the shootings at 120 Torresdale and 80 Alder Road on September 14. Text messages between Mr. Williams and Ms. Tudor-Lawrence were used at the preliminary inquiry to establish that he was attempting to determine the location of the party on the morning of the shooting. GPS data connected him to both shootings. The defence factum suggested that this evidence was outside the parameters of the warrant, but this argument was not pursued in oral submissions, and I find that it has no merit. Evidence that Mr. Williams was in possession of a gun four days prior to the killing of Mr. Anderson is circumstantial evidence relevant to the issue of identification: R. v. Backhouse (2005), 195 O.A.C. 80, at para. 156.
Conclusion
120The applicant’s factum submits that the police “strip-mined” the defendant’s phone and conducted an indiscriminate search of the extracted data, showing no regard for the authorization to search or the applicant's right to privacy. That claim must be considered in context.
121Det. Sgt. Allington determined within the first hour of reviewing the data that the phone had been stolen from Maria Gonzalez on September 3, three weeks before police seized the phone from Jatorri Williams. Police knew from that moment forward that they need only consider the data recorded between September 3 to 24. The applicant repeatedly complains that police extracted 44,000 pages of data from the phone, but only a miniscule portion of that data belonged to Mr. Williams. The vast majority was created by and belonged to the rightful owner of the phone, Maria Gonzalez.
122Mr. Anderson was shot on September 18. Police had grounds to believe that Mr. Williams had been present at the time of the shooting, but identification and motive were both uncertain. If Mr. Williams was carrying the iPhone on the night of the murder, it was likely that the phone would have recorded location data which could confirm his identification as the shooter. It was also reasonably possible that the phone would hold messages which would provide a clue as to motive. D.C. Kremer explained at length in the ITO why it was necessary to investigate who was using the phone at critical moments and whether the phone recorded data which would assist the investigation.
123Virtually any use of the phone in the three weeks preceding the death of Mr. Anderson was reasonably capable of providing evidence of who was holding the phone. The list of applications capable of demonstrating possession included call logs, messages, location data, browser searches, health data, photos, videos, and playlists.
124In my view, the issuing justice did authorize the search of all data found on the phone to determine possession of the phone at the time of Mr. Anderson's death and the use of the phone both before and after the homicide. The officers were searching the data for only a three-week period. Although the officers may not have properly informed themselves of the terms of the warrant, I am entirely satisfied that the searches they conducted were authorized, and I find no violation of section 8 of the Charter arising from the manner of the search.
C. The Facial Challenge to the Warrant
The alleged overbreadth of the warrant
125The applicant challenges the facial validity of the second warrant. The grounds of the challenge are set out in the applicant’s factum:
a. The terms of the warrant were overbroad and did not impose any meaningful limitation on the police powers to search the data.
b. The purported parameters of the search are set out in incoherent, boilerplate language which is vague to the point of being meaningless. The result was a warrant which authorized a search that far exceeded what was reasonable in the circumstances.
c. The conditions set out in Appendix A2 were errantly copied from a previous warrant application and the failure to copy the proposed terms accurately gave rise to an incomprehensible and misleading condition.
The Evidence Disclosed in the ITO
126A challenge to the facial validity of a warrant requires the reviewing judge to examine the ITO and determine if, based on the information provided, the JP could have issued the warrant. The applicant does not challenge that there were reasonable grounds to believe that Mr. Williams had murdered Mr. Anderson or that there were reasonable grounds to believe the iPhone would afford evidence of that offence. The argument is only that the conditions which were placed on the authorization were so broad that the issuing JP could not reasonably have granted the warrant. For ease of reference, those conditions are:
d. A member of the Toronto Police Technological Crimes section will extract data relating to:
i. Communications - in relation to the victim and suspects
ii. A timeline of activity in relation to pre -offence, offence and post offence behaviour and usage.
iii. Ownership details identifying primary ownership and primary user or user information.
iv. Multimedia content which includes but is not limited to pictures, videos and sound recordings.
v. Passwords, encryption keys and access codes required for access device and software configuration settings including geographic location information.
127The analysis of the applicant’s argument begins with a review of the evidence that was put before the issuing justice.
128D.C. Kremer included the following information in the ITO:
a. On September 9, 2018, Mr. Anderson and Mr. Williams were believed to have committed a robbery at the “Holistic Centre” massage-spa located at 2324 Lakeshore Blvd West. The robbery was captured on surveillance video and a victim provided physical descriptions of the robbers which matched Anderson and Williams.
b. On September 14, 2018, Mr. Aziavor was shot and killed at 126 Bellamy Road North in Scarborough. The getaway car was a dark Infiniti SUV, (licence plate CFPD-223), which had been leased to Mr. Anderson’s mother. Mr. Anderson was driving the vehicle at the time of the murder and Mr. Williams was believed to have been one of the two shooters.
c. On September 18, 2018, Mr. Williams and Mr. Anderson committed another robbery at the “With Me” Beauty Spa located at 4386 Sheppard Avenue East. The robbery occurred at 7:47 pm and was captured on surveillance video. Mr. Anderson was wearing a red t-shirt and Toronto Raptors cap. Mr. Williams was wearing a dark hoodie and pants with a white stripe on the side. They stole money and the victim’s iPhone. An RCMP officer who was in the area on an unrelated matter saw the two men leave the area in a dark blue Infinity SUV.
d. Shortly after the robbery of the “With Me” spa, surveillance cameras at the Golden Sunray Spa located at 4559 Sheppard Avenue East recorded video of a dark coloured SUV pulling into the plaza parking lot. Shortly after the car arrived, the video showed two men loitering near the spa. The clothing and appearance of the men matched that of Mr. Williams and Mr. Anderson. The two men were near the spa from 8:21 pm until 8:26 pm. At 8:28 pm, a witness heard a loud bang in the parking lot and then saw a dark SUV leave the lot at high speed. The body of Mr. Anderson was found in the lot at 9:37 pm. He had been shot once in the head.
e. At approximately 9:18 pm, residents in the area of 58 Corning Road observed a vehicle on fire. The vehicle was identified as the same 2019 Infiniti which had been rented by Jago Anderson’s mother and used in the Aziavor murder. The car had been set on fire intentionally. Police found identification in the car belonging to Lingling Guo, an employee of Golden Sunray Spa, in the car. That spa had been robbed on September 11, 2018.
f. The Field Sparroway housing complex is 1.2 kilometres from 58 Corning Avenue. Surveillance video from that complex showed a male wearing a hoodie and striped pants arriving on foot at approximately 9:18 pm. Mr. Williams lived at 7 Field Sparroway, Unit 109.
g. The male on the video appeared to be using a cell phone. He was picked up by a white sedan which was later determined to be a Lyft vehicle. Business records established that the Lyft had been ordered by Mr. Williams’s girlfriend, Ms. Tudor-Lawrence. The Lyft driver transported the male to Ms. Tudor-Lawrence’s residence.
h. Mr. Williams was arrested on unrelated charges on September 24, 2018. At the time of his arrest, he was wearing black Nike pants with a stripe on the side which were similar to the pants which he was believed to have been wearing on September 18. The pants were sent to the CFS to be tested for gunshot residue (“GSR”). Six GSR particles were found on the pants. GSR was also found on the hoodie which Mr. Williams was wearing at the time of his arrest.
i. Two phones were seized from Mr. Williams incident to the arrest: the iPhone 7 and a Blackberry. D.C. Kremer specified in the ITO that these devices could hold information which is highly relevant to the murder investigation: “Mobile devices generally contain information such as text messages, phone calls, contacts, and data relating to the location of the device. This information will be invaluable in establishing who the user was in contact with prior to, during, and after the homicide.”
129D.C. Kremer provided a detailed account of the evidence which he reasonably believed would be found on the phone:
a. Communications between Mr. Williams, Mr. Anderson and any other person regarding the offences under investigation. Such communications may have occurred through voice messaging, text messaging, social media, video or other means which could only be discovered through forensic analysis.
b. Evidence of Mr. Williams’s activity before and after the murder, including his geographic location which may be recorded in “a wide variety of user functionality”.
c. Evidence that the phone was used to research information relevant to the offences under investigation.
d. Evidence demonstrating ownership and possession of the phone. Such evidence could be found in photos, videos, multimedia files, personal emails or files containing date stamps. The officer noted that the metadata associated with such files could assist in identifying data which has been transferred to other devices and in establishing timelines of relevant events.
e. The configuration settings for the device including geographic location information. D.C. Kremer explained that the configuration settings of the phone contain information about the user, the software installed, the dates and times of Internet access and geographic location. He specified that capturing the configuration settings requires a complete download of the phone.
130As I stated earlier in these reasons, the application was refused when D.C. Kremer first submitted it to JP Agnew. In her reasons for refusing the warrant, the JP asked, “how will the scope of communications be limited in time and contact?” D.C. Kremer responded as follows:
i. He had considered whether the extraction of data could be limited to a date range and concluded that it could not. A temporal restriction would “severely limit” the ability of investigators to examine the device, particularly in regards to determining a potential motive for the offence. D.C. Kremer noted that the absence of any data relating to motive could itself be a relevant fact.
ii. D.C. Kremer also stated that in his own experience, it is common for data extracted from a cell phone to have inaccurate date and time stamps. These errors can only be corrected by examining the complete data.
iii. D.C. Kremer ended his response by observing that the proposed warrant contained specified categories of data which would be examined and that these conditions would limit the search of the device for information “relevant to this investigation”.
Analysis
131It is important to recognize the priorities of the police at this early stage of the investigation. Their first step was to determine the identity of the man who was in the laneway with Mr. Anderson immediately before his death. Mr. Anderson and Mr. Williams had a history of committing spa robberies together. The video from the earlier robbery at 4386 Shepard Avenue suggested that Mr. Williams was likely the man who was with Mr. Anderson that night, but the video only showed a similarity of clothing. Police had to obtain more tangible evidence of identification. There were abundant grounds to believe that the data on Mr. Williams’s phone could provide the necessary evidence potentially including messages to arrange a meeting with Mr. Anderson, searches to identify targets for robbery, and GPS data which could reveal Mr. Williams’s movements before and after the murder. Although it was not possible to foresee which type of electronic file would provide the evidence, there was very good cause to believe that relevant evidence would be found.
132Motive was an important element of this investigation. The investigation to date suggested that Mr. Anderson and Mr. Williams were close confederates in numerous crimes, including the Aziavor murder. They were believed to be in the process of jointly committing yet another spa robbery when Mr. Anderson was killed. Police were obliged to investigate why Mr. Williams would have suddenly turned on his accomplice, if that is in fact what occurred. D.C. Kremer explained at length why he believed that the iPhone would have relevant evidence on the issue of motive and why that investigation required access to the data over an unlimited period. The issuing JP accepted his explanations.
133The applicant describes the conditions which appear in paragraph 2(d) of Appendix A2 as “meaningless boilerplate”. That submission finds some support in the evidence of D.C. Flores, who testified that the same language appeared in “pretty much all warrants” which he executed in the five years that he served in the tech crimes unit. The terms were so familiar to him that he did not consider them to be restrictions at all but rather as a direction to download the entire contents of the phone.
134Virtually identical conditions were used in a warrant to search the cell phone of the accused in R. v. Millard, 2016 ONSC 348. The defendant challenged the conditions on the same ground that is advanced here, that the conditions were overbroad and vague. Justice Goodman rejected that argument, finding that the terms were appropriately general to permit the investigation which was described in detail in the ITO.
135The same conditions appeared in a warrant authorizing the search of digital devices in R. v. Yabarow, 2019 ONSC 3669, [2019] O.J. No 3359 (QL). Justice Dambrot rejected the submission that the terms were overbroad and amounted to a carte blanche to explore everything in the electronic devices. He commented, at para. 23, on the diverse range of data that might reasonably be found in a cell phone which would be relevant to a murder investigation:
In the circumstances of a case like this, where there is evidence that a person committed a murder, it is no leap of logic to conclude that there is a probability that his or her cell phone communications, photographs, videos and the like will contain evidence of the offence. Evidence of the person's whereabouts, associations, and communications in the period immediately before and after the crime will invariably have evidentiary value in relation to the crime. Undoubtedly, in some respects, the proposed search here was wide, but it was very far from unlimited. The search was limited by time, subject matter and purpose. And the categories of evidence sought were logically connected to the offence. I do not see how I could say that the judicial officers in question could not have issued the production order and search warrant in issue.
136The fact that the same conditions commonly appear in warrants to search digital devices does not mean that those conditions are meaningless. It is understandable that affiants would rely on judicially approved precedents. Although the conditions are employed commonly, counsel for the applicant were unable to find a single occasion where a court has found them to be unacceptably broad or vague. The question is not whether the conditions are commonplace, but whether they appropriately confine the search which was approved in this case.
137D.C. Kremer’s ITO thoroughly explained why police required communications “in relation to” the victims and the suspects. Evidence regarding motive might appear in communications directly between Mr. Williams and Mr. Anderson, but it is equally likely that the motive would be proven by communications between Mr. Williams and a third party. That is especially true given that there was no evidence of a sudden dispute between the deceased and the killer, suggesting the possibility that the motive may have been formed prior to the shooting. The conditions which were placed on the search are general to capture the myriad ways that digital information may convey evidence, movement, activities, and communications. The terms were broad, but not overbroad. There is no cause to interfere with the decision of the authorizing justice’s approval of the conditions in paragraph 2(d).
138The applicant next makes the wider argument that courts should require affiants to propose search parameters in the ITO which can be implemented using the Cellebrite software to avoid ambiguity concerning the nature of the request and to facilitate the enforcement of judicially-imposed limitations. That is not the current state of the law, and, in my view, it is an unlikely future development. The terms of a judicial authorization to search digital devices are necessarily general to encompass the vast number of ways that evidence may be recorded on a cellular phone. Justice Di Luca commented on this necessity in R. v. Otto, 2019 ONSC 2514, [2019] O.J. No 3386, at para. 119:
The manner in which searches for data on electronic devices are framed is a developing issue that lacks clear guidance. Indeed, there does not appear to be a standard or accepted practice on how to describe the items sought when it comes to electronic evidence. At times, when a warrant is obtained to seek data, the police will simply provide a list of the types of data they will be searching for on electronic devices. This might include Word documents, pdf files, emails, photographs, videos, calendar entries, personal contacts, internet search history, et cetera. There is a legitimate issue as to whether the police need specific grounds in relation to each type of file or data they are searching for. Indeed, depending on the context and nature of the search, it is arguably artificial to require police to set out grounds to believe each specific type of file will contain evidence of the offences under investigation as long as there are grounds to believe that evidence will be found in the device.
139For reasons provided above, I do not accept that search filters applied by Cellebrite software are an adequate substitute for the searches which are currently conducted by trained members of an investigative team. Search protocols are not, as a general rule, constitutionally required in warrants to search digital devices: See Vu, at para. 53.
140The applicant lastly argues that paragraph D (v.) of Appendix A2 was errantly copied from a prior judicial authorization, resulting in an unintelligible sentence, “Passwords, encryption keys and access codes required for access device and software configuration settings including geographic location information.”
141The applicant submits that this provision is “incoherent’ and gives rise to an ambiguity concerning the intention of the issuing JP. Mr. Salloum submitted that the condition may be read as authorizing a search of Mr. Williams’s location data over an undefined period or it may authorize a search for location data which was necessary for accessing the device.
142While I agree that the condition appears to mistakenly conflate two provisions which were originally intended to be separate, I do not accept that a confounding ambiguity arises. The ITO is perfectly clear as to the investigative plan concerning the use of location data. There is no suggestion that the location data was relevant to determining passwords or encryption keys for the phone, and it is hard to imagine how that could ever be the case. There is no intuitive link between passcodes and geographic location which would give rise to any confusion in the mind of the issuing JP. If any such confusion did arise, it would immediately be settled by a review of page 17 of the ITO, which fully explores the anticipated relevance of GPS location data and makes no reference to accessory codes or passwords.
143I dismiss the facial challenge to the warrant.
D. The Sub-Facial Challenge to the Warrant
144The applicant also brings a sub-facial challenge to the warrant. It is alleged that the affiant deliberately misled the JP in two respects:
a. By making the misleading statement that the police investigation would be severely limited if a search was confined to a specific date range.
b. By failing to disclose that Mr. Anderson's phone showed no contact with Mr. Williams on September 18.
145The nature of a sub-facial challenge is described in R. v. Sadikov, 2014 ONCA 72, 314 O.A.C. 357, at para. 38:
Sub-facial challenges go behind the form of the ITO to attack or impeach the reliability of its content: Araujo, at para. 50; and Wilson, at para. 40. Sub-facial challenges involve an amplified record, but do not expand the scope of review to permit the reviewing judge to substitute his or her view for that of the authorizing judicial officer: Araujo, at para. 51; and R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452. The task of the reviewing judge on a sub-facial challenge is to consider whether, on the record before the authorizing justice as amplified on the review, the authorizing justice could have issued the warrant: Araujo, at para. 51; and Garofoli, at p. 1452. The analysis is contextual: Araujo, at para. 54. The reviewing judge should carefully consider whether sufficient reliable information remains in the amplified record, in other words, information that might reasonably be believed, on the basis of which the enabling warrant could have issued: Araujo, at para. 52.
146There was no application to cross examine the affiant. The sub-facial challenge was based on the contents of the 2018 warrant, the 2019 warrant and the representations of counsel. It was the position of defence counsel that the court could infer deliberate misrepresentations by D.C. Kremer based on that record alone.
The misrepresentation regarding date range
147The first warrant to search the iPhone was granted on October 10, 2018. That warrant related to two counts of attempted murder which were not connected to the murder of Mr. Anderson. The issuing JP did impose a four-month time limit for the extraction of data, but that warrant lapsed before it was executed.
148D.C. Kremer submitted his first application to search the iPhone on September 13, 2019. That application did not mention the October 2018 warrant. The first JP to receive the application dismissed it, citing the failure to recommend temporal limits for the search of the data. D.C. Kremer included the reasons for refusal when he re-submitted the application and explained why he believed that a time limit would impede the investigation of motive. There is nothing in the evidence or the submissions of counsel which would cause me to conclude that the officer’s request was unreasonable, let alone intentionally misleading. The authorizing JP was entitled to accept D.C. Kremer’s opinion as expressed in a sworn affidavit and did not act unreasonably in doing so.
149I do not ascribe any bad faith to the fact that the 2018 warrant was not mentioned in the ITO. The 2018 warrant was obtained by a different unit for unrelated offences and was never executed. There is no evidence that D.C. Kremer knew that a warrant had been authorized in 2018 or that the warrant had included temporal limitations on the search of the data. There is simply no evidence to support a finding of bad faith.
150There is also nothing improper about resubmitting a warrant application, provided that the application alerts the JP to the fact that there was a preceding application: R. v. Campbell, 2014 O.J. No 6541, at para. 56; R. v. Bond, 2021 ONCA 730, at para. 28.
The failure to disclose Mr. Anderson’s call detail records
151The applicant further alleges that D.C. Kremer deliberately failed to disclose in the ITO that investigators had obtained the call detail records for Mr. Anderson’s phone from Rogers Communications and had obtained a warrant to extract data from Mr. Anderson’s phone. The defence factum states that police “were well aware that no communication between Mr. Williams and Mr. Anderson had occurred on the day of the 18th”, and this fact was deliberately withheld from the authorizing JP.3
152The evidence does not support this assertion. It is true that police had the call detail records for Mr. Anderson's phone from Rogers and they also had Mr. Anderson's mother's consent to download the contents of his phone. Having the call detail records, however, was of little assistance in determining whether Mr. Anderson and Mr. Williams communicated on September 18.
153The applicant’s factum states that “police believed that Mr. Williams cell phone number was 647 821-2260 and his home phone number was 416 492-2843”.4 The applicant asks the court to infer that D.C. Kremer knew that the call detail records for Mr. Anderson’s phone did not show any contact with either of these numbers on the day of the murder and that he deliberately withheld this evidence from the authorizing JP.
154There is no evidence that D.C. Kremer was aware of either of those numbers at the time that he wrote the ITO. It is also obviously possible that Mr. Williams had access to more than one cell phone, bearing in mind that he was arrested with two cell phones. A review of Mr. Anderson’s call records could not possibly lead to the conclusion that there was “no communication” between Mr. Williams and Mr. Anderson on September 18.
155More importantly, there are myriad ways of communicating on cell phones that would not appear in the call detail records of a telecommunications service provider. D.C. Kremer described some of those means in paragraph 37 (a)(ii) of the ITO. The very reason why the police had to extract the data from the phones was that there was a high probability that two young men who were engaged in serious criminal activity were unlikely to have communicated using conventional cell phone service. It is simply not true to say that police were “well aware” that there had been no communications between to Mr. Williams and Mr. Anderson on September 18. While it might have been prudent to note that police were in possession of Mr. Anderson’s call detail records, the failure to do so was not even remotely deceptive.
156It is further alleged that D.C. Kremer deceptively failed to disclose that police had a warrant to search Mr. Anderson's phone. There is no evidence of what phone had been seized or whether the warrant to search the device could be executed. D.C. Flores testified that some phones cannot be broken. It took over a year for software to be developed which could break the iPhone 7 seized from Mr. Williams. The fact that police had a warrant to search a phone which was connected to Mr. Anderson is meaningless if the phone could not be broken. The defence application does not include any evidence that police had successfully downloaded Mr. Anderson’s phone at the time that the ITO was prepared. There is no basis to find that D.C. Kremer attempted to mislead the JP.
157The sub-facial challenge is dismissed.
E. The Failures to Abide by Section 489 & 490 of the Code
The First Failure - Det. Hart’s failure to file a return upon seizing the phone
158Detective Hart arrested Mr. Williams on September 24, 2018. He seized the iPhone, a Blackberry phone and a hat from Mr. Williams at the time of his arrest. At 6:00 am the following morning, Det. Hart turned over the items he had seized to D.C. Kevin Moore. All three items were placed in a temporary locker in anticipation that they would be sent for forensic testing. Other items seized from the residence of Mr. Williams were logged on a property report and placed in a locker to be transported to the Property Bureau. A Report to Justice was completed for all of those items, but no return was filed for the items held in the temporary locker.
159Det. Hart acknowledged that failing to file a return on the iPhone was a serious error. He attributed the error to systemic failings which he now avoids by sending all seized items to the Property Bureau to ensure that they are captured on the property list which is prepared by the case manager. The case manager for this matter went on leave in November 2018 and the case lay dormant for an extended time. The charges were withdrawn by the Crown in August 2019, and nothing occurred in the interim to alert Det. Hart to the fact that he had failed to file a return.
The Second Failure - D.C. Tanev’s failure to file a return after executing a locker search
160D.C. Tanev obtained a warrant to search the iPhone on October 10, 2018, and the warrant was executed to the extent that the phone was moved from a locker at 31 Division to the vault at the Tech Crimes Unit. A Report to Justice should have been filed to reflect the fact that the phone was seized, albeit only for the purpose of moving it from one police facility to another. D.C. Tanev did not testify on this application and there is no evidence as to why he did not file a return. It is reasonably possible, however, that he assumed a return had already been filed when the phone was initially seized and no further return was required since the property had only been moved and not searched.
The Third Failure - D.C. Kremer’s failure to report the seizure of extracted data
161The warrant to search the iPhone was executed on September 20, 2019. D.C. Flores extracted the data and provided it to Det. Sgt. Allington on a USB key. D.C. Kremer filed a Report to Justice concerning the seizure of the phone from the Tech Crimes vault, but that return listed only the iPhone itself and made no mention of the data which had been extracted. The reviewing JP ordered that the iPhone be held until January 2, 2020 “unless proceedings are instituted”.
The Fourth Failure - Det. Sgt. Allington’s failure to extend the detention order for the iPhone
162The date of January 2, 2020, passed without any additional charges being laid against Mr. Williams. He was not charged with the murder of Mr. Anderson until June 25, 2020, yet there was no effort to extend the detention order which had been made by JP Finnestad. This failing is aggravated by the fact that D.C. Kremer, in his role as the affiant for the warrant, had assured the original authorizing JP that he was familiar with his responsibilities to report property seized and would fulfill all his obligations.
163Det. Sgt. Allington was asked why he, as the officer in charge of the case, did not seek to extend the return until charges were laid. He described it as an oversight on his part.
The Fifth Failure - Misplacing the USB Key Containing the Data Extracted from the iPhone
164In March 2020, Det. Sgt. Allington attempted to retrieve the USB key containing the extracted data from D.C. Roth. D.C. Roth was unable to locate the key and Det. Sgt. Allington had to re-attend the Tech Crimes unit to obtain a second copy of the data from the Tech Crimes server. The lost USB key has never been recovered.
165D.C. Roth testified that he thought he had given the USB key back to Det. Sgt. Allington. He admitted that he did not know where the key was from December 2019 until September 2020.
Violations of Section 8 Arising from the Failure to File Returns
166The legislative purpose of sections 489.1 and 490 of the Criminal Code was described in R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 45:
Section 489.1(1) applies to seizures made both with and without prior judicial authorization: Backhouse, at para. 111. The provision fulfills an important purpose, providing the gateway to s. 490 of the Criminal Code: R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, at paras. 15, 55; Backhouse, at para. 112. Section 489.1 should not be conceptualized as a meaningless exercise in paperwork. Filing the initial report under s. 489.1(1) is the act that places the property within the purview of judicial oversight. It provides for a measure of police accountability when dealing with property seized pursuant to an exercise of police powers. This provides an important measure of protection to the party who is lawfully entitled to the property, but also provides a measure of protection to the police who become the custodians responsible for the property seized. Allowing for this type of oversight is particularly important in the wake of warrantless seizures, ones where no prior authorization has been given, meaning the seizures are beyond the knowledge of the judicial system.
167In R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, at para. 45, the court found that a failure to file a Report to Justice concerning seized property may constitute a violation of section 8 of the Charter:
As I have explained, it is clear that an individual retains a residual, post-taking reasonable expectation of privacy in items lawfully seized and that Charter protection continues while the state detains items it has taken. Sections 489.1(1) and 490 govern the continued detention by the state of the items seized and, I conclude, the requirement in s. 489.1(1) to report to a justice as soon as practicable plays a role in protecting privacy interests. The Constable’s post-taking violation of s. 489.1(1) by failing to report to a justice for more than three months after seizure of the blood and hospital records compromised judicial oversight of state-detained property in which the appellant had a residual privacy interest. It therefore rendered the continued detention unreasonable and breached s. 8. The fact that a person may have a diminished reasonable expectation of privacy after a lawful, initial police seizure and that in a particular case there may have been virtually no impact on that expectation will be important factors in the analysis under s. 24(2) of the Charter. However, they will not render continued detention after a clear violation of the requirement in s. 489.1(1) to report to a justice as soon as practicable reasonable.
168A minor or technical breach of the provisions of section 489.1 or 490 will not necessarily constitute a violation of section 8: R. v. Garcia-Machado, at para. 55; R. v. D’Souza, 2016 ONSC 5855, [2016] O.J. No 4995 (QL), at paras. 167-169.
The First Failure
169The Crown conceded that D.C. Hart’s failure to file a return for the iPhone7 was a breach of Mr. Williams’s section 8 rights. The breach was arguably a consequential one for Mr. Williams. The phone was seized in relation to attempted murder charges which were withdrawn on July 9, 2019. Mr. Williams remained in custody on other matters until August 15, 2019. If a return had been filed and the phone was ordered detained pending the completion of the attempted murder proceedings, Mr. Williams theoretically could have taken lawful possession of the phone after his release on August 15 (assuming police were satisfied that he was the rightful owner.) Police made no effort to return the phone to him and he did not request its return. Thus, the phone was still in police custody on September 18, 2019 when D.C. Kremer obtained the second warrant which uncovered highly incriminating data.
170The applicant’s factum states that “police believed that Mr. Williams was the rightful owner of the iPhone and would expect it likely contained several years of Mr. Williams’ personal data.” There is no evidence to support either of these assertions and good reason to doubt them both. Investigators were aware that Mr. Williams and Mr. Anderson had stolen cell phones when committing spa robberies, including the robbery at the With Me Beauty Spa on September 18. It was obviously possible that the phones seized from Mr. Williams on September 24 had been stolen during spa robberies and it is very likely that Mr. Williams would have been required to demonstrate his ownership of the phones before they were returned to him. He has never done so.
171The seriousness of the breach is also attenuated by the fact that police did obtain a warrant to search the phone shortly after it was seized. As a result of that warrant, the seizure of the phone was “known” to the justice system and, although this did not accomplish all the objectives of section 490 of the Code, it at least demonstrated the police were not attempting to hide the phone. Counsel for Mr. Williams would have been alerted by the disclosure on the attempted murder charge that the phone had been seized and almost certainly knew by the time that the charges were withdrawn that police had been frustrated in their effort to search it. These circumstances do not correct the failure to file a return, but they do lessen the gravity of the breach.
172It may theoretically have been possible that the phone would be released to Mr. Williams after the attempted murder charges were withdrawn, but it is very unlikely that this would actually have occurred. Police had reasonable grounds to believe that the phone contained evidence of serious offences; they only lacked the technology to recover that evidence. The fact that the charges were withdrawn would not preclude the Crown from relaying the charges if the phone was ultimately searched and incriminating evidence discovered. In my view, it is most unlikely that the iPhone would have been returned to Mr. Williams until it had been searched or police were satisfied that it never could be searched.
The Second Failure
173D.C. Tanev failed to file a report for the locker search which moved the iPhone from the 31 Division Property room to the vault at the Tech Crimes Unit. This was a breach of section 489.1 of the Code, but it was a technical breach, and, in my view, it did not violate section 8 of the Charter: See R. v. D’Souza, at para. 169.
The Third Failure
174There is a divide in the case law concerning the necessity of filing a return for seized data. In R. v. Robinson, 2021 ONSC 2446, Justice Akhtar concluded that no return was required, comparing data seized from a phone to forensic evidence recovered from seized clothing. In his view, the “thing” specified in section 489.1(1) is the phone which holds the data, not the data itself.
175Justice Leibovich came to the opposite conclusion in R. v. DaCosta and Jeffrey, 2021 ONSC 6016. In his view, section 489.1(1) mandates a report to the justice, despite the intangible nature of seized data. Absent a report, the property seized would not be subject to judicial supervision under section 490 which is an important element of maintaining privacy. (See also R. v. Sinnappillai, 2019 ONSC 5000, at paras. 99-102.)
176The facts of this case illustrate the practical benefits of requiring a Report to Justice for extracted data. A phone goes into a Tech Crimes office as one piece of evidence and emerges as two. The phone and the data each have value both as evidence and as property, and police are obliged to protect both for as long as they remain in police custody. In this case, the police lost a USB key which contained the private information of both Mr. Williams and Maria Gonzalez. If the USB key had been recognized as containing seized property requiring a Report to Justice, it is far less likely that the key would have been lost. D.C. Roth would have had to sign the USB key out of a property locker to review the data and would have recognized that he was responsible for its return. No one was accountable for the USB key in this case, and that led to a potential loss of privacy not only for the accused but for an innocent victim.
177In my view, there are compelling reasons to require police to make an independent return for data extracted from digital devices and the failure to do so in this case constitutes a meaningful violation of section 8. The breach is attenuated, however, by the fact that this is a recent development in the case law which was not widely recognized in September 2019.
The Fourth Failure
178Det. Sgt. Allington’s failure to extend the return on the iPhone was yet another breach of section 490, but it was a technical one and did not violate section 8. Police knew by January 2020 that the iPhone did not belong to Mr. Williams, and it was never going to be returned to him. Mr. Williams’s only interest was in the data which had been extracted from the phone, and that interest was not affected by the failure to extend the earlier return.
The Fifth Failure
179Police have wide authority to seize personal property during criminal investigations. When they do seize property, they are responsible for ensuring that it remains safe and private. This is true of any item, but especially data extracted from a cell phone. In this case, that data included every call, text message, photograph, and video that Maria Gonzalez and Mr. Williams had ever stored on the iPhone. Even items which they deliberately deleted were captured in the extraction report. Their private information was converted into a readable PDF file and saved onto a USB key which police cannot now locate.
180It does not appear that the loss of the data caused any alarm amongst investigators. It only came to light because of a note in Det. Sgt. Allington’s notebook regarding his attendance at the Tech Crimes unit to pick up a second copy of the data. D.C. Roth, who was the officer who lost the key, did not even make any note of it.
181The evidence suggests that the investigators took a cavalier approach to protecting the privacy of the data extracted from the phone. The assurances of privacy which they made in the ITO were not borne out by their conduct.
182In my view, the failure to protect the privacy of the data once extracted from the phone is a significant breach of section 8.
IV. SECTION 24(2)
183The applicant has demonstrated that his section 8 rights were violated in three respects:
i. The failure of D.C. Hart to file a Report to Justice when he seized the iPhone.
ii. The failure of D.C. Kramer to file a return after data was extracted from the iPhone.
iii. The failure of D.C. Roth to maintain security over the data once it had been extracted from the phone.
Was the evidence seized from the phone obtained in a manner that breached the applicant’s Charter rights?
184Trial courts must take a purposive and generous approach in deciding whether evidence was obtained in a manner that breached an accused’s Charter rights. If the breach and the discovery of the evidence are part of the same transaction or course of conduct, the evidence will be tainted. The connection between the Charter breach and the impugned evidence can be temporal, contextual, causal or a combination of the three. The connection does not have to be causal for the evidence to be tainted: See R. v. Tim, 2022 SCC 12, [2022] S.C.J. No 12, at para. 78
185In R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, the Court of Appeal upheld the trial judge’s finding that the applicant’s section 8 rights had been breached by the failure of police to file a return for seized property. In conducting its own 24(2) analysis, the court did not directly address whether the evidence had been obtained in a manner which infringed the defendant's Charter rights. In my view, it is implied in the court’s ruling that the first hurdle to exclude evidence had been met. I come to the same conclusion here.
186The evidence at stake in this application is the data extracted from the iPhone. I am satisfied that the evidence was obtained in a manner which infringed the Charter. As was noted in Canary, the filing of returns is necessary to place seized property within the purview of judicial oversight. That did not occur in this case for over a year after the phone had been seized, and two months after the lawful authority to hold it had ended. If the evidence had been reported as required, it is at least possible that the applicant would have recovered the phone before the incriminating data could be extracted. Taking a generous and purposive view of these circumstances, I am satisfied that the data was obtained in a manner which breached the applicant's rights.
The Seriousness of the Charter-Infringing Conduct
187The first branch of the Grant test was summarized in Tim, at para. 82:
The first line of inquiry under s. 24(2) considers the seriousness of the Charter-infringing state conduct. It asks whether the police engaged in misconduct from which the court should dissociate itself (see Grant, at para. 72). The concern of this inquiry is “not to punish the police”, but rather to “preserve public confidence in the rule of law and its processes” (Grant, at para. 73). The court must situate the Charter-infringing conduct on a “spectrum” or a “scale of culpability” (Grant, at para. 74; Paterson, at para. 43; Le, at para. 143). At the more serious end of the culpability scale are wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. Courts should dissociate themselves from such conduct because it risks bringing the administration of justice into disrepute. At the less serious end of the culpability scale are Charter breaches that are inadvertent, technical, or minor, or which reflect an understandable mistake. Such circumstances minimally undermine public confidence in the rule of law, and thus dissociation is much less of a concern (see Grant, at para. 74; Le, at para. 143; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22).
188The first breach occurred when D.C. Hart failed to file a report after seizing the iPhone incident to arrest. There are mitigating circumstances to this breach. D.C. Hart had many responsibilities on the night of Mr. Williams’s arrest, and he reasonably expected that the officers who submitted the phone for forensic testing would also file a Report to Justice. D.C. Hart clearly was not trying to hide the phone from judicial oversight and, when the failure was brought to his attention, he took immediate and transparent steps to rectify his error. In Garcia-Machado, at para. 67, the court described a similar failure to file a return as minor or technical. I come to the same conclusion here.
189The second Charter breach occurred when D.C. Kremer filed only a return for the physical phone after D.C. Flores had extracted the data. For reasons previously stated, I find that D.C. Kremer should have filed a separate return for the extracted data, but I view this as being at the very lowest end of the seriousness spectrum. Courts have only recently begun to recognize an obligation on the part of police to file a Report to Justice regarding seized data. There are conflicting decisions from the Superior Court regarding that obligation and, although I favour the view that a return is required, I would not describe the point as settled. There is certainly no cause to find fault in D.C. Kremer’s failure to foresee this development in the law in September 2019. His failure to file a return was also a minor and technical breach.
190The third breach of section 8 occurred when police lost the USB key which contained the entire extracted contents of the iPhone. I view this as a significant breach of the Charter.
191Police commonly come into possession of private data in criminal investigations. In this case, they seized a phone from Mr. Williams which contained an enormous amount of data from a previous owner. Whenever police extract the entire contents of a digital device such as a cell phone, a computer or the infotainment system of a car, there is a high probability that they will obtain the data of people who are not the target of their investigation. Whether the data belongs to the suspect or an innocent party, the police have an obligation to ensure that it remains private and is securely stored.
192Section 490(13) of the Criminal Code permits police to copy documents once they have been lawfully seized. It is easy to copy digital files onto portable devices and once copied, it becomes virtually impossible to trace any subsequent distribution of the file. In this case, all Maria Gonzalez’s data was extracted into a PDF file and then organized into immediately accessible categories such as photos, videos, chats, browser history, GPS locations and health data. The potential invasion of Ms. Gonzalez’s privacy if the file escaped police custody was immense.
193The law takes great care to protect the privacy of individuals when police seek to search digital devices. The concern for privacy must be no less once the data has been extracted. That did not occur in this case. Police not only lost a USB key which contained the extracted data but hardly took note of the fact that it had been lost.
194That degree of indifference to the privacy of citizens, whether they be suspects or innocent parties, is intolerable. It suggests that the assurances of privacy and respect for confidentiality which are routinely made by police when applying for a warrant to search are cast aside once the evidence is obtained. This conduct must be condemned by the court.
195I find that the loss of the USB key containing the digital evidence extracted from the iPhone is a significant departure from Charter standards which does risk bringing the administration of justice into disrepute. The first Grant factor does favour the exclusion of the evidence.
The Impact of the Breaches on the Applicant’s Charter-Protected Rights
196The second branch of the Grant test was summarized as follows in Tim, at para. 90:
The second line of inquiry under s. 24(2) considers the impact of the breach on the accused’s Charter-protected interests. It asks whether the breach “actually undermined the interests protected by the right infringed” (Grant, at para. 76; Le, at para. 151). This involves identifying the interests protected by the relevant Charter rights and evaluating how seriously the breaches affected those interests (see Grant, at para. 77). As with the first Grant line of inquiry, the court must situate the impact on the accused’s Charter-protected interests on a spectrum, ranging from impacts that are fleeting, technical, transient, or trivial, to those that are profoundly intrusive or that seriously compromise the interests underlying the rights infringed. The greater the impact on Charter-protected interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. This is because “admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute” (Grant, at para. 76; see also Le, at para. 151; Harrison, at para. 28).
197The inquiry begins with determining the interests of Mr. Williams that were protected by Section 8. Mr. Williams’s primary interest was to maintain privacy over the data he recorded on the iPhone in the three weeks that he possessed it. The principal means of protecting that right is the requirement that police obtain judicial authorization prior to accessing the data. They did that.
198Mr. Williams’s secondary interest was to have the property which was seized from him held according to law. That interest was not served, and I have found that this amounted to a breach of section 8, but the breach had no material impact on the constitutionally-protected interests of Mr. Williams. For reasons previously stated, I do not accept that the failure to file a return in September 2018 led to the discovery of the incriminating evidence. Mr. Williams knew that the stolen iPhone had been seized by police when he was arrested, and he made no inquiry concerning its return during the three months that he was out of custody. If he had requested the return of the iPhone, the request would certainly have been denied. The homicide unit had received confidential information by September 2018 linking Mr. Williams to the murder of Mr. Aziavor. Det. Browne immediately contacted D.C. Flores in the tech crimes unit and urged him to examine the phone as soon as possible. In my view, there is no realistic possibility that the phone would have been returned to Mr. Williams when police had reasonable grounds to believe that it held evidence of at least two attempted murders and quite possibly a first-degree murder. The failure to file a return was negligent, but it had no impact on the unfolding of events.
199Once the data was extracted from the phone, Mr. Williams’s only interest was the preservation of his privacy in that data. The phone itself did not belong to him and he had no claim to it. The data could readily be copied and returned to him (as indeed it was during the disclosure process) but that was of no value to him. Once his right to privacy had been set aside by a judicial authorization, his only remaining interest was that the extracted data be stored securely.
200Police failed to secure Mr. Williams’s data and I view that as a significant breach. There is no evidence, however, that any actual loss of privacy occurred. There is no cause to believe that any data extracted from the iPhone ever entered the public domain. There is no evidence as to whether the file was password protected, a common precaution with electronic files containing private information. In short, there is no evidence that the loss of the data had any impact on Mr. Williams’s Charter-protected interests.
201Mr. Williams was carrying a stolen phone for only three weeks before it was seized by police. When he was briefly released from custody, he made no effort to retrieve the phone although he knew that police had attempted to forensically examine it. He did not testify at this application and only barely established that he had a reasonable expectation of privacy regarding the contents of the stolen phone. There is no evidence that police observed highly personal information when examining the extracted data. D.C. Roth's final report is solely devoted to Mr. Williams’s direct involvement in five shootings which occurred between September 12 to 18. There is no evidence that police abused their authority to search the phone by engaging in unwarranted or irrelevant searches. The second line of inquiry under section 24(2) strongly favours including the evidence.
Society’s Interest in the Adjudication of the Case on the Merits
202The third line of inquiry under the Grant test is the societal interest in adjudicating the case on its merits. The test is described as follows in Tim, at para. 96:
The third line of inquiry considers factors such as the reliability of the impugned evidence and its importance to the Crown’s case. It asks, “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion” (Grant, at para. 79). Reliable evidence critical to the Crown’s case will generally pull toward inclusion (see Grant, at paras. 80-81; Harrison, at paras. 33-34).
203If Mr. Williams succeeds in establishing one or more violations, he seeks to exclude all evidence recovered from the cell phone. To assess the effect that would have on the truth-seeking function of the trial, it is necessary to review the evidence which is at stake in this application.
The SCAS Shooting - September 12, 2018
204The Crown alleges that Mr. Williams was in possession of a 9 mm handgun on September 12. Mr. Aziavor was killed two days later by shots fired from a 9 mm handgun.
205To prove Mr. Williams’s possession of a 9 mm gun on September 12, the Crown seeks to introduce evidence that Mr. Williams became involved in an altercation with another student at SCAS on that day and he fired a shot. Data extracted from the cell phone records strongly corroborates the Crown’s position:
The phone connected to the Wi-Fi network of SCAS shortly before the shooting.
GPS location data puts the iPhone at SCAS at the time of the shooting.
Text messages exchanged between Mr. Williams and Ms. Tudor-Lawrence after the shooting indicate that Mr. Williams had been injured and was going to his friend’s home at 415 Willowdale Avenue rather than returning to his own home.
The Shooting at G. Ross Lord Park (120 Torresdale Avenue) - September 14, 2018
206Identity is in issue in the Aziavor murder. The Crown relies on the evidence of the shooting at G. Ross Lord Park to prove that Mr. Williams was in possession of the gun that killed Mr. Aziavor within hours of the murder.
207Two shots were fired in the park on September 14 at 9:00 pm, 2 ½ hours after the murder of Mr. Aziavor. One of the 9 mm shell casings recovered at the park matched the shell casings recovered at the scene of the Aziavor murder.
208GPS data extracted from Mr. Williams’ iPhone shows that the phone was at 120 Torresdale at the time of the shooting. The phone also held images and videos of Mr. Williams holding handguns which resembled the guns used to kill Mr. Aziavor and wearing the same distinctive clothing that he was wearing on September 14.
The Shooting at 30 Alder Road - September 14, 2018
209The Crown alleges that Mr. Williams attended a party at 30 Alder Road in Scarborough at 11:00 pm on September 14 and while at the party, fired a 9 mm handgun. A shell casing recovered from that shooting matched the 9 mm shell casings found at the scene of Mr. Aziavor’s murder at 6:45 pm and the shooting at the park at 9:00 pm.
210The iPhone contained messages exchanged between Mr. Williams and Ms. Tudor-Lawrence on the morning of September 14. In the messages, Mr. Williams asked Ms. Tudor-Lawrence to determine the address of the party and she told him it was at 30 Alder Road.
211GPS data from the phone demonstrates that Mr. Williams was at 30 Alder Road at the time of the shooting.
The Murder of Mr. Anderson on September 18, 2018
212The Crown alleges that on September 18, Mr. Anderson and Mr. Williams committed a robbery at a massage parlour located at 4386 Sheppard Avenue East. They then drove a short distance east to 4559 Sheppard Avenue East and were on the verge of committing a second spa robbery when Mr. Williams shot Mr. Anderson. The Crown alleges that Mr. Anderson was killed by the same gun that killed Mr. Aziavor on September 14. The iPhone contained a great deal of evidence which is relevant to the events of September 18:
i. Mr. Williams conducted a Google search on the iPhone for “Spas on Steeles” on September 18 at 6:24 pm.
ii. GPS data extracted from the iPhone show that it was at the “With Me Beauty Spa” when the first spa robbery occurred.
iii. GPS data also shows that the iPhone was at 4559 Sheppard Avenue East from 8:00 pm to 8:27 pm.
iv. GPS data tracks Mr. Williams’s movements after the shooting of Mr. Anderson at 4559 Sheppard Avenue East to 415 Willowdale Avenue, then to 58 Corning Avenue where Mr. Anderson’s car was set aflame.
v. GPS data next shows that Mr. Williams walked from 58 Corning Avenue to the Field Sparroway complex where he caught a Lyft ride which took him to the residence of Ms. Tudor-Lawrence. The iPhone not only recorded Mr. Williams’s GPS location as he walked to Field Sparroway but also counted the number of steps that he took as he walked.
vi. Text messages recovered from the phone confirm that Ms. Tudor-Lawrence ordered the Lyft which picked Mr. Williams up at the Field Sparroway complex.
213The Crown submits that the evidence obtained from the iPhone is essential to its case concerning the murder of Mr. Anderson. Without the iPhone data, it would be impossible to prove beyond a reasonable doubt that Mr. Williams was the party present with Mr. Anderson at either of the two spa robberies. The video evidence demonstrates only a similarity of clothing and could not sustain a conviction. I accept that submission.
214The iPhone data is highly probative concerning the incidents of prior discreditable conduct which the Crown relies upon to prove that Mr. Williams had access to firearms and that he possessed the gun used to kill Mr. Aziavor both before and immediately after the killing. If that were excluded, it would significantly weaken the identification evidence connecting Mr. Williams to the 120 Torresdale Avenue and 30 Alder Road shootings. The exclusion of the evidence would also weaken the Crown’s evidence concerning the SCAS shooting, although Mr. Fried candidly acknowledges that there is an abundance of evidence from other sources which identify Mr. Williams as the shooter at SCAS.
215The reliability of the evidence garnered from the iPhone is not in dispute. The evidence is not simply reliable because it is precisely recorded, but also because it meshes perfectly with evidence obtained from other sources which confirm that Mr. Williams was in possession of the phone continuously from September 3 to 24.
216The extracted data shows that Mr. Williams entered his Apple Identification onto the iPhone on September 3rd. GPS and Wi-Fi data show that he was carrying it with him on September 12, when the shooting at SCAS occurred. He used it on September 14 to arrange a meeting with Mr. Anderson before the murder of Mr. Aziavor and was still carrying it at 9:00 pm at 120 Torresdale Avenue and at 11:00 pm at Alder Road. His presence at Torresdale Avenue is confirmed by surveillance video from an elevator recorded shortly after the shooting occurred. His presence at Alder Road is confirmed by messages exchanged with Ms. Tudor- Lawrence. Those two shootings are linked to one another and the Aziavor murder by ballistics evidence. Mr. Williams was still carrying the phone on September 18, a fact which is confirmed by surveillance video from the With Me spa and Fieldsparroway as well as data obtained from Lyft. The data is not only highly reliable in its own right, but it is also highly reliable in combination with evidence from other sources to demonstrate Mr. Williams’s continuous possession of the phone both before and after the homicides. The exclusion of any part of the digital evidence would weaken this crucial inference.
217Plainly, the truth-seeking function of the trial process is far better served by admitting this evidence than by excluding it. The evidence is pivotal to proving identity in one, if not two, murders. The societal interest in admitting the evidence cannot realistically be any greater.
The Final Balancing
218The Supreme Court of Canada gave the following guidance regarding the balancing of the three criteria of the Grant test in Tim:
[98] The final step in 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 (see Grant, at paras. 86 and 140; Harrison, at para. 36). Each factor must be assessed and weighed in the balance, focussing on the long-term integrity of, and public confidence in, the administration of justice (see Grant, at para. 68). The balancing is prospective: it aims to ensure that evidence obtained through a Charter breach “does not do further damage to the repute of the justice system” (Grant, at para. 69). The balancing is also societal: the goal is not to punish the police, but rather to address systemic concerns by analyzing “the broad impact of admission of the evidence on the long-term repute of the justice system” (Grant, at para. 70; see also Le, at para. 139).
219Only one of the three Grant factors favours the exclusion of the evidence. The section 8 violations arising from the failure to file returns were minor, but misplacing private data is serious, especially when it includes the personal information of an innocent party. This type of police misconduct cannot be easily excused.
220There is no evidence, however, of any actual loss of personal information. A USB key which contains a great deal of personal information has been misplaced and that creates a risk that if the key has left police custody, the information could be disclosed. It has now been three years since the USB key was noticed as missing and there is no evidence of any disclosure of personal information to date. Although I view the loss of the key as serious, I find that it is most likely that the loss will never have any effect at all on Mr. Williams.
221Mr. Williams seeks the exclusion of all evidence extracted from the phone. The effect of such a ruling would be to essentially end the prosecution of the Anderson murder and significantly diminish the Crown’s case on the Aziavor murder. The applicant’s factum does not propose any alternative remedy and in my view, none is feasible. This is not a case where the Charter violation was closely connected to the seizure of a discrete aspect of the evidence which might be excluded without doing irreparable harm to the Crown’s case.
222The Supreme Court of Canada has emphasized that the purpose of excluding evidence under section 24(2) is not to punish the police but rather to address systemic concerns which endanger the long-term repute of the administration of justice. This case does not give rise to any systemic concerns. There is no basis to find that the negligent loss of data is a common occurrence. The Crown conceded the Charter breaches at the outset of this application and called the officers who were responsible for the breaches to explain their conduct. Those officers were candid in admitting their errors and it was not suggested that they were ever dishonest or attempted to hide evidence. On the contrary, the investigators who directed this case sought and received judicial approval at every stage of their investigation. The court is called upon here to condemn negligence, not malfeasance.
223I have no hesitation in finding that the long-term repute of the administration of justice is best served by admitting the evidence extracted from the iPhone. It is highly probative, reliable evidence that was obtained by judicial warrant. There is no evidence that the breaches of section 8 have yet resulted in any harm to Mr. Williams’ Charter protected interests and little cause to fear that they will do so in the future. To exclude evidence which is highly probative of two murders based on Charter violations which had no palpable impact on the interests of the accused would surely bring the administration of justice into disrepute.
224The application to exclude the evidence is dismissed.
justice peter bawden
Released: September 22, 2023
COURT FILE NO.: CR-22-30000466-0000
DATE: 20230922
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JATORRI WILLIAMS
Applicant
REASONS FOR JUDGMENT
justice peter bawden
Released: September 22, 2023