R. v. Girmay Habtegabir, Essue, Kaddoura, 2024 ONSC 236
Court File No.: CR-22-511-00 Date: 2024 01 10
Ontario Superior Court of Justice
B E T W E E N:
His Majesty the King
Counsel: T. Kim and D. D’Iorio, for the Crown
- and -
Fiseha Girmay Habtegabir, Malik Essue, Abdulla Kaddoura
Counsel: C. Zeeh, for Mr. Habtegabir, Mr. Aly for Mr. Kaddoura, B. Ross and S. Chuckal for Mr. Essue
Defendants
Heard: October 5, 2023
Decision on a Pretrial Application for an Order Excluding Mr. Girmay-Habtegabir’s Cellphones Seized by a London Police Officer on October 10, 2020
André J.
[1] Mr. Girmay-Habtegabir (“Mr. Girmay”) brings an application for a court order finding that Detective Constable Robbie Sutherland breached his rights under s. 8, 9, and 10 of the Canadian Charter of Rights and Freedoms (the “Charter”) when the officer seized his cellphones during a traffic stop and that, pursuant to s. 24(2) of the Charter, any evidence retrieved from the phones should be excluded.
[2] The Crown submits that the officer did not breach Mr. Girmay’s rights when he conducted traffic stop of Mr. Girmay.
The Grounds for the Application
[3] The Applicants, Fiseha Girmay-Habtegabir, Malik Essue, and Abdulla Kaddoura, are jointly charged with the first-degree murder of Sangita Sharma. The Crown’s case is that Mr. Kaddoura recruited Mr. Essue and Mr. Girmay and they planned the murder. On August 13, 2020, Mr. Girmay and Mr. Essue waited in Mr. Essue’s Ford Fusion for Ms. Sharma to return to her home. When she did, Mr. Girmay left the vehicle, approached her residence, and shot her inside her garage causing her death.
[4] On October 10, 2020, members of the London Police Service (LPS) initiated a traffic stop on a BMW bearing Ontario marker CPVV 134 which was flagged by Peel Police in relation to the Sharma homicide. During the traffic stop, at the request for Peel Regional Police Services (“PRPS”) Officer D/C Robbie, Detective Sutherland seized two cellphones from Mr. Girmay relying on exigent circumstances. The cellphones were turned over to the PRPS, who on October 16, 2020, applied for judicial authorization to search the cellphones.
[5] Mr. Girmay seeks the exclusion of his cellphones. He maintains that the traffic stop was a ruse, and that there was no basis to seize the cellphones. The search warrant that was subsequently sought by PRPS did not disclose reasonable and probable grounds to justify a search of his cellphones. Further, the police failed to file a Report to a Justice in a timely manner. These Charter breaches require the exclusion of the cellphones from the trial.
Position of the Applicant
[6] Mr. Girmay’s counsel submits the following:
a) The stopping of Mr. Girmay’s vehicle, ostensibly because of a number of traffic infractions, was in reality a ruse for a criminal investigation to obtain his cellphones. The officer was acting on the instructions of Cst. Robbie of the PRPS to detain Mr. Girmay and obtain his cellphones as part of an ongoing murder investigation.
b) There were no urgent circumstances that justified the seizure of the phones. At the time of the seizure, there was no evidence linking Mr. Girmay to the murder. The police did not have the requisite grounds to obtain a warrant to examine the phones. To that extent, there were no exigent circumstances to justify the seizure.
c) The PRPS violated s. 489.1 of the Criminal Code (“the Code”) when they delayed approximately 25 days before filing a Report to Justice (“Report”) after the cellphones were seized on October 10, 2020. By filing the report on November 4, 2020, they did not comply with the requirement that the report had to be filed “as soon as is practicable.” The explanation given by the police officer who filed the Report does not absolve the police from its failure to comply with s. 489.1 of the Code.
d) The Information to Obtain (“ITO”) is not valid and therefore evidence gleaned from the search of Mr. Girmay’s phones should be excluded. There was no evidence that the applicant was a suspect in a homicide neither was their evidence for the affiant to believe there would be evidence on the phone.
Position of the Crown
[7] The Crown submits the following:
a) The notes of Detective Constable Sutherland and Detective Robbie indicate that the stop of Mr. Girmay’s vehicle was not a pretextual stop but a legitimate exercise of police powers under the Highway Traffic Act.
b) Detective Robbie’s notes clearly state that there were exigent circumstances for the seizure of the phones. Furthermore, that this officer did not direct Officer Sutherland to stop the BMW and to seize the driver’s cellphones. Rather, he advised Detective Sutherland that if he happened to identify the driver of the BMW following a lawful traffic stop, to advise him of the name of the driver. He further advised him that if he arrested the driver and seized a phone pursuant to an arrest flowing from a traffic stop. The police officer seized the cellphones only because Mr. Girmay refused to properly identify himself during a legitimate traffic stop, not because of any direction from Detective Robbie. The following factors led to the seizure of the cellphones:
i. Mr. Girmay had no licence or wallet;
ii. Mr. Girmay advised that his licence was “possibly” in the name, “Habtegabir”;
iii. Mr. Girmay could not provide a proper spelling of his name and wanted to call his brother to spell his name;
iv. The 10 documents in the car had a different name;
[8] The constellation of these factors provided the authority for the seizure of the phones incident to Mr. Girmay’s arrest. Mr. Girmay denied a request for his phone’s password.
Return to Justice
[9] The 25-day delay in filing the RTJ did not violate the Charter. The reasons provided by the affiant adequately explains the delay. Even if they did not, the breach of the Charter was minor.
ITO
[10] The information to Obtain was proper on its face and provides adequate grounds for the search of Mr. Girmay’s phones.
Governing Principles
[11] Section 216(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) gives an officer the power to stop a vehicle, even if the stop is random and the officer lacks reasonable and probable grounds: R. v. Mayor, 2019 ONCA 578, 56 C.R. (7th) 61, at para. 6; R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 55. Section 217(2) of the HTA permits an officer to make a warrantless arrest of a person who the officer determines is driving while suspended: Mayor, at para. 6. The Court of Appeal in Mayor noted the following in paras. 9 and 10:
However, if the officer does not have a legitimate road safety purpose in mind and is using the Highway Traffic Act authority as a mere ruse or pretext to stop a vehicle in order to investigate a crime, then the detention will be unlawful. As Doherty J.A. held in Brown, the Highway Traffic Act powers will not authorize police stops if the police use these powers as a “ruse” to justify a stop for another purpose: at p. 234. Likewise, in R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851 (S.C.C.), at para. 36 (citations omitted), the Supreme Court emphasized that courts should not permit the police to invoke road safety detention powers as “a plausible façade for an unlawful aim.” Accordingly, in R. v. Humphrey, 2011 ONSC 3024, 237 C.R.R. (2d) 109 (Ont. S.C.J.), at para. 88, Code J. held that using Highway Traffic Act powers “as a mere ‘ruse’ or ‘pretext’ for a broad and unfounded criminal investigation” would violate s. 9 of the Charter.
Consequently, the court must make a factual determination as to whether the officer had a road safety purpose in mind or whether the officer was using the Highway Traffic Act power as a ruse to conduct a criminal investigation. In determining the police purpose, the court must consider all the circumstances, including the evidence of the officers, the evidence of the detained person, the circumstances of the stop, and the police conduct during the stop: Brown, at p. 238; Gonzales, at para. 67.
[12] Motorists have a reduced expectation of privacy when operating a vehicle on a public road as compared to pedestrians or individuals on a private road. R. i. Hundal at para. 30; R. v. McColman, 2021 ONCA 382 at paras. 61 – 62; R. v. Lee, 2017 ONCA 654, 39 C.R. (7th) 404, at para. 69.
[13] Section 33 of the HTA provides that a driver who is unable to surrender his driver’s licence for inspection upon a demand is required to provide his correct name or address.
[14] In R. v. Merritt, 2017 ONSC 80, Dawson J. noted that s. 487.11 of the Code permits the police to briefly take custody of a cellphone while applying for a valid search warrant to ensure that the ability to perform a warranted search for evidence is not lost.
[15] A police officer may seize an item under s. 489(2) of the Code at the direction of another officer: R. v. Chow, 2022 ONCA 555, 163 O.R. (3d) 241, at paras. 44 – 52.
Return to Justice
[16] In R. v. Canary, 2018 ONCA 304 [2008] O.J. No. 1786 (ONCS) the Court of Appeal held that a 31-day delay in filing an RTJ did not necessarily violate s. 8 for the Charter. In R. v. Fareed, 2023 ONSC 1581 [2023] O.J. No. 1090 (S.C.J.) a 3.5-year delay filing an RTJ was held to violate s. 8 of the Charter. However, the trial judge did not exclude the evidence because he found at para. 74 that the impact on the accused was “negligible”.
Analysis
[17] This application raises the following issues:
a) Was the stopping of Mr. Girmay’s vehicle merely a pretext for a clandestine criminal investigation, thereby breaching his section 8 and 9 Charter rights?
b) Did Detective Sutherland have the legal grounds to seize Mr. Girmay’s cellphones?
c) Did the delay in filing the RTJ violate Mr. Girmay’s s. 8 Charter rights?
d) Is the ITO Valid?
e) If Mr. Girmay’s Charter rights were infringed, should any evidence obtained as a result of the violation (s) be excluded under s. 24(2) of the Charter?
A. Was the stopping of Mr. Girmay’s vehicle merely a pretext for a clandestine criminal investigation, thereby breaching his s. 9 Charter rights?
[18] Mr. Girmay’s counsel insists that it is. He submits that;
The Applicant’s traffic stop was the result of the ongoing Sharma homicide, and not a valid Highway Traffic Act purpose, and breached his ss. 9, 10(a) and 10(b) Charter rights. After having a telephone conversation with Cst. Robbie where he is asked to identify the driver, Sgt. Sutherland conducted a traffic stop. After Sgt. Sutherland locates two phones, which is not relevant to any Highway Traffic Act investigation, he once again called Cst. Robbie, and he was instructed to seize the phone, request the passcodes, and not tell the Applicant about the investigation. In addition, at some point, Sgt. Sutherland took a photograph of the Applicant and sent it to Cst. Robbie. These factors all support that the stop was the result of the homicide investigation, and not a true HTA investigation.
Evidence of Detective Ross Sutherland
[19] On October 10, 2010, Detective Sutherland saw a 2013 grey BMW at 1:30 p.m. with a dark window tint. He had seen the vehicle’s licence plate a week before in the middle of the night and had its number. However, the vehicle had driven away by the time he got a response from his computer. He also saw a “flag” by Peel Homicide that anyone who located the vehicle should contact Detective Kevin Robbie of the PRPS.
[20] The officer saw the vehicle again on October 10, 2020 parked outside a multiplex residential area in front of 776 Ladybrook Crescent, London. He called Detective Robbie at 1:38 p.m. who wanted to identify the vehicle’s occupants in connection with a Peel homicide. Detective Sutherland then parked his vehicle a short distance away at a school parking lot to see if the BMW would drive by, which it did about twenty-five minutes later.
[21] The vehicle was quite tinted, preventing the officer from seeing within it which was an HTA offence. Detective Sutherland could not see if anyone was within the BMW when he first saw it. He later saw the vehicle going southbound at a high rate of speed. It failed to stop at a stop sign at 2:06 p.m. The vehicle was going between 80 to 100 km/ph in a 50 km/ph zone. The officer then followed the BMW until he stopped it on another road because of its tint, high rate of speed and the stop sign infraction.
[22] Detective Sutherland asked the driver to roll down his window. The driver complied. He turned out to be Mr. Girmay. He asked Mr. Girmay for his driver’s licence, ownership and insurance. Mr. Girmay did not have any of these documents.
[23] The officer did a pat down search of the accused who kept “stumbling” on his name. He couldn’t spell his last name. He said that his licence had been suspended two days earlier by the O.P.P. He gave the name “Fiseha” and asked to speak to his brother to spell his name. Mr. Girmay gave the name “Habtegabir” but struggled to spell it. Another officer arrived at the scene. She arrested Mr. Girmay for being a suspended driver.
[24] Detective Sutherland searched the BMW as a search incident to an arrest and found ownership documents in the name Jai’ Quan McNamara. He seized a pink iPhone which was in the console of the vehicle.
[25] At 2:18 p.m., Detective Sutherland detained Mr. Girmay for failing to identify himself. Just before doing so, he called Detective Robbie who told him to seize the phone he had earlier located on the accused for the ongoing homicide investigation. Mr. Girmay refused to provide a passcode for the phone. The phone unlocked after it “saw” Mr. Girmay face. The officer placed the phone in a special bag to prevent someone from tampering with its contents. He took two photographs of Mr. Girmay and sent them to Detective Robbie. He decided to issue a warning to Mr. Girmay about the speeding and failing to obey a stop sign because the driver was the subject of a homicide investigation. His colleague arrested Mr. Girmay for driving under a suspended license because it was a more serious charge.
[26] Under cross examination, Detective Sutherland stated that he asked Mr. Girmay for his passcode to confirm his identity. He denied that Detective Robbie asked him to get the passcode. He confirmed that Detective Robbie told him not to disclose the homicide investigation to the driver. He seized the phone because Detective Robbie directed him to do so. Detective Sutherland could not recall giving Mr. Girmay a reason for seizing his phone. He could not recall a previous occasion during a traffic stop when he seized a driver’s phone for identification purposes. Detective Robbie told him in their second conversation that the phone could have evidence of a homicide. Detective Sutherland testified that he used that information to seize Mr. Girmay’s phone. He never asked Officer Robbie his grounds for believing that the driver was a suspect in a homicide.
Constable Krysten Howell
[27] Constable Howell testified that Mr. Girmay only gave the name “Girmay” and that he told her that he had attended a local high school. She believed him because he knew the names of two coaches at the school.
Detective Constable Robbie
[28] Detective Robbie testified that on October 7, 2020 he told the London police that if they saw the silver BMW, he is interested in the driver’s ID and cellphone. He told them he just wanted him identified. Nothing came out of that request.
[29] On October 10, 2020, he received a call from Detective Sutherland at 1:33 p.m. that he had seen the unoccupied BMW on Ladybrook Road. He told Detective Sutherland to ID the driver if there were any grounds for a traffic stop. He did not wish to have Mr. Girmay detained because he did not have grounds to do so.
[30] At 2:16 p.m. he received another call from Detective Sutherland and was told that the vehicle was stopped for a traffic offence. He learned that the driver had verbally identified himself and had no documents to prove it. Furthermore, that the driver had difficulty spelling his name. Detective Robbie told Detective Sutherland to seize the two cellphones found in the driver’s possession. He told the officer that this male had met with Mr. Essue and Mr. Kaddoura and therefore asked Detective Constable Sutherland to seize the phones. He also asked his London counterpart to obtain the passcode for Mr. Girmay’s phone. He noted in his notebook that he wanted the phones seized because there were exigent circumstances based on a need to prevent destruction of evidence on the phones. He believed that grounds existed for the seizure of the phones This was based on the evidence of the five bullets found at Mr. Essue’s residence on September 17, 2020, and Mr. Essue’s meeting with Mr. Girmay and Mr. Kaddoura soon after. He did not know on October 10, 2020 that Mr. Girmay was involved in the murder. He received Mr. Girmay’s photograph from Detective Sutherland at 2:53 p.m., after he had asked the officer to seize the phones.
Analysis
[31] In my view, the stopping of Mr. Girmay’s vehicle was for a legitimate roadway purpose rather than a ruse to ID the driver and obtain his cellphones to search its contents following the execution of a search warrant. I have arrived at this conclusion for the following reasons.
[32] First, Detective Sutherland was a supervisor of police who was responsible for the city of London. He saw the BMW on October 19, 2020 and called his counterpart in Brampton who told him that he wanted to identify the occupants of the vehicle in connection to a homicide. Thereupon, the officer parked his vehicle at a nearby school and laid in wait for the BMW.
[33] The officer’s decision to wait in the neighbourhood to see if the BMW would drive by may have been influenced by Detective Robbie’s request. However, given the notes he made during the investigation and the “will say” he prepared immediately after it, I find as a fact that he stopped the BMW because of the traffic infractions he observed.
[34] The officer testified that he tried to ascertain the identity of the driver as he was required to under the HTA. He clearly had the authority to do so under that Act.
[35] Detective Sutherland testified that he seized the cellphones found in the car and another on Mr. Girmay because of the latter’s failure to give his proper name to the officer. The Crown echoes this position that the seizure of the cellphones was on account of this failure and the fact that Mr. Girmay had no documents on him.
[36] Mr. Girmay’s failure to properly identify himself may well have justified the seizure of the phones pursuant to the HTA. However, Detective Sutherland was very clear in his testimony about why he seized the phones. He testified that Detective Robbie asked him to seize the phones for the homicide investigation. In cross-examination, he reiterated that the reason for the seizure was for the homicide investigation. He could not recall a previous occasion during a traffic investigation when he had seized a phone for identification purposes.
[37] I therefore find as a fact that Detective Sutherland seized Mr. Girmay’s cellphones not as part of his HTA investigation, but to assist Detective Robbie in the murder investigation. He stopped the BMW as part of a legitimate roadway investigation; however, he seized the cellphones to give them to his Brampton counterpart.
B. Did Detective Sutherland have legal grounds to seize Mr. Girmay Habtegabir cellphone?
[38] As already noted, Detective Sutherland seized Mr. Girmay’s phone at the direction of Detective Robbie. The Court of Appeal noted in Chow, at paras. 44 to 52, that an officer may seize an item under s. 489(2) of the Code at the direction of another officer.
[39] The question therefore becomes whether Detective Robbie had the requisite legal grounds to direct Detective Sutherland to seize Mr. Girmay’s cellphone. In my view, the following surveillance events collectively gave him the legal grounds to do so.
a) On October 10, 2020, Detective Robbie had evidence indicating that Mr. Essue, Mr. Kaddoura and a third male were involved in Ms. Sharma’s murder;
b) On September 17, 2020, a search warrant of Mr. Essue’s residence resulted in the recovery of five .22 calibre bullets in a mattress in the basement of the residence. Both Mr. Essue’s mother and sister, the other occupants of the residence, told the police that the bullets did not belong to them. The police also had information that Mr. Essue gave that address as his own when he rented a vehicle in July 2020 and when he reported his vehicle stolen on August 10, 2020, the very day of Ms. Sharma’s murder;
c) Later on September 17, 2020, police observed Mr. Essue meeting with Mr. Kaddoura and a third male who arrived in the grey BMW. The male briefly entered 776 Ladybrook Crescent, where the Detective later saw the BMW on October 10, 2020, and then drove away in the BMW. Police officers took photographs of the three males seemingly engrossed in a conversation before the driver of the BMW drove away; and,
d) On October 1, 2020, surveillance officers on Ladybrook Crescent saw the same unknown male and Mr. Essue enter the BMW parked on the roadway. The male dropped Mr. Essue and another male at a mechanic shop. Soon after, this male, Mr. Kaddoura and Mr. Essue met in the parking lot.
[40] Based on this evidence, Detective Robbie had the authority to apply for a warrant for the phone for the purpose of ascertaining the identity of the BMW’s driver.
[41] What is the source of this authority? First, in R. v. Merritt, 2017 ONSC 80, the court noted that s. 487.11 of the Code authorizes the police to temporarily seize such evidence while applying for a valid search warrant, which the Peel Regional Police Services did on October 16, 2020. Second, s. 489 (2) (c) of the Code provides, inter alia, that a police officer in the execution of his duties may, without a warrant, seize anything that the officer believes on reasonable grounds will afford evidence in respect of an offence against this or any other Act of Parliament. However, in R. v. J.W., 2022 ONSC 4400, at para. 18, Conlan J. noted that “from a plain reading of the legislative provision, it is the seizing officer who must believe, on reasonable grounds, that the seizure will afford evidence of an offence, and the seizure must be for that purpose.”
[42] Did Detective Sutherland have reasonable grounds to believe that the seizure of Mr. Girmay’s cellphone would afford evidence of an offence? In my view, he did not. Detective Robbie only told him to confirm Mr. Girmay’s identification for a murder investigation and to seize the driver’s cellphone. Detective Sutherland, under the HTA, had the authority to seize the cellphone to ascertain Mr. Girmay’s cellphone. However, that is not why he seized the cellphone. He did so at the request of Detective Robbie without having had reasonable grounds to do so. To that extent, he violated Mr. Girmay’s s. 8 Charter rights.
C. Did the 25-minute delay in filing the RTJ violate Mr. Girmay’s s. 8 Charter rights?
[43] In my view, it did not. I say so for the following reasons.
[44] Sergeant Porcillo testified that as the affiant in the investigation of Ms. Sharma’s murder, he prepared 100 judicial authorizations. He prepared the application for the search of the cellphones on October 16, 2020. Between October 21, 2023 and November 3, 2020, he was preparing for a “promotional” examination and was unable to prepare the RTJ, although it would have taken 5 to 10 minutes. He returned to work on November 3, 2020 and filed the RTJ one day later. When asked why he did not delegate the responsibility of preparing the RTJ, Sergeant Porcillo replied that it was his responsibility as affiant to perform that task.
[45] Did the delay in filing an RTJ in this case violate s. 8 of the Charter? In my view it did not, based on the applicable caselaw. In R. v. Canary, 2018 ONCA 304 [2008] O.J. No. 1786 (ONCS) the Court of Appeal held that a 31-day delay in filing a RTJ did not necessarily violate s. 8 for the Charter. However, in R. v. Fareed, 2023 ONSC 1581 [2023] O.J. No. 1090 (S.C.J.) the court found that a 3.5-year delay in filing the RTJ breached s. 489.1 but failed to exclude the evidence because its impact on the accused was “negligible”: (at para. 74). Finally, in R. v. Neill, 2018 ONSC 5323, [2018] O.J. No. 7024 (S.C.J.) the court similarly held that a delay in complying with a s. 489.1 of the Code was not serious, created very little prejudice to the accused and that society’s interest in having the case tried on its merits superseded any prejudice to the accused caused by the delay.
[46] In my view, the delay, in the circumstance of this case, did not violate Mr. Girmay’s s. 8 Charter rights. Even if it did, the impact of the delay was inconsequential.
D. Is the ITO valid?
[47] Mr. Girmay’s suggests that the ITO is not valid, mainly because it does not disclose reasonable and probable grounds to show that Mr. Girmay’s cellphone would disclose evidence about the murder.
[48] I disagree for the following reasons. But for my finding that Detective Sutherland lacked the legal grounds to seize the cellphones, the ITO and contains credibly based probability evidence for the issuance of a warrant to search the phone.
[49] The legal standard is lower than a prima facie case or proof beyond a reasonable doubt. The evidence includes the following:
i. The murder of Ms. Sharma and the description of the getaway car;
ii. The discovery of the car in Mississauga and the identity of its owner as Mr. Essue;
iii. Surveillance footage, retrieved on September 30, 2020, from K&A Automotive from August 10, 2020 showing
a. a) Mr. Kaddoura giving money to other males,
b. b) an employee removing Mr. Essue’s licence plates
c. Mr. Essue wiping down the Ford Fusion with a cloth
d. another set of plates being placed on Mr. Essue’s vehicle and Mr. Essue later leaving in the Ford Fusion;
iv. The surveillance report from September 17, 2020, concerning a meeting between Mr. Essue and an unknown male who arrived in a BMW 5 series licence CDVV 134;
v. On October 16, 2020, the affiant viewed notes of Detective Robbie and learned that on October 10, 2020, Mr. Girmay had been stopped driving the BMW 5 series vehicle. Detective Robbie later confirmed on the same day that Mr. Girmay was the unknown male seen meeting Mr. Essue and Mr. Kaddoura on September 17, 2020;
vi. On October 16, 2020, the Affiant reviewed photographs of Mr. Girmay and that of the shooter. The affiant noted similarities between surveillance photographs of Mr. Girmay and that taken by Detective Sutherland.
vii. The photographs showed similarities in the chain and distinctive ring Mr. Girmay was wearing.
[50] Based on information in the ITO, the affiant had the requisite grounds to seek the issuance of a search warrant for the search of Mr. Girmay’s cellphone.
E. Should evidence gleaned from Mr. Girmay’s cellphone be excluded?
[51] In my view, it should not. I say so for the following reasons after an assessment of the three factors noted in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
Seriousness of the Charter Infringing
[52] Gaining unauthorized access is a serious violation of a person’s privacy rights. Cellphones have been the repository of very personal information of their owners and invariably contain information about loved ones, friends and even business. They oftentimes contain photographs of a very personal nature.
[53] That said, the seriousness of this Charter infringing conduct is attenuated by many factors. First, Detective Sutherland had the authority to seize and hold the cellphones under the HTA, but chose not to. Second, he did not press the issue when Mr. Girmay denied the officer’s request for the passcode to the phone. The scrupulous decision to obtain a judicially authorized warrant to search the phone is a reflection of good faith of the police and a cognizance of an accused’s rights under the Charter: R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 761, at para. 28. Third, after receiving the cellphones on October 15, 2020, the Peel police spoke to the Principal of Mr. Girmay’s old high school and confirmed that Mr. Girmay was the unknown male who helped prepare the vehicle used in the murder. Only then did the police seek a warrant for a judicially authorized search for the contents of the phone.
[54] Fourth, seizure of a cellphone to secure it has been construed not to constitute a serious violation of the Charter: See R. v. Rocha, 2012 ONCA 707 at para. 28. Furthermore, in R. v. Neill, 2016 ONSC 4963, 32 C.R. (7th) 470, Dawson J. held at para. 43 that the warrantless seizure of an accused’s cellphone to preserve evidence attenuates the seriousness of the Charter infringing conduct.
[55] Fifth, Mr. Girmay was stopped while driving a motor vehicle without any licence or identification documents and having been suspended from driving a mere two days before. He therefore had a reduced expectation of privacy at the time Detective Sutherland stopped his vehicle.
[56] For these reasons, this factor favours inclusion of the evidence.
Impact on the Accused
[57] The impact of the Charter infringing conduct on Mr. Girmay is minimal. But for Detective Robbie’s failure to provide information to Detective Sutherland as to why the driver was a suspect in the murder, the proposed reason for Detective Sutherland’s seizure of the phones would have been lawful. The stopping of Mr. Girmay’s vehicle was lawful as was his arrest for driving without a licence. He was also a suspended driver. The search of his phone was conducted pursuant to a judicially authorized search warrant. Prior to the seizure of the cellphones, the Peel Police had already received surveillance evidence that made them believe that an unknown male, who turned out to be Mr. Girmay, was involved in the murder. The cellphone was not examined until a warrant was obtained to search it. For the above reasons, this favours the inclusion of the evidence.
Impact on the Administration of Justice
[58] Society has an interest in ensuring that serious criminal offences are best adjudicated on their merits. There is also a pressing community concern about the insidious impact of gun violence on innocent persons.
[59] That said, the videos recovered from Mr. Girmay’s phone are not critical to the Crown’s case. As a result, the Crown’s prosecution will continue even if the videos the Crown seeks to adduce as evidence in the trial are excluded. However, a reasonable person, fully apprised of the fact that neither the Charter infringing conduct of the police or its impact on Mr. Girmay can be considered serious, and the seriousness of the charge, would conclude that exclusion, rather than inclusion of the evidence obtained as a result of the search of the phone, would bring the administration of justice into disrepute.
Conclusion
[60] For the above reasons, evidence obtained as a result of the search of Mr. Girmay’s phone is admissible in Mr. Girmay’s upcoming trial.
André J.
Released: January 10, 2024