COURT FILE NO.: CR-23-40000490 DATE: 20240711
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – RAMONE CAMPBELL Applicant/Defendant
Counsel: Daniel De Santis, for the Crown Anthony De Marco, for the Applicant/Defendant
HEARD: June 10 to 14, 2024
JUSTICE S. NAKATSURU
[1] The applicant, Ramone Campbell, is alleged to have robbed and sexually assaulted a sex trade worker using an imitation handgun. He argued that the police subjected him to an unreasonable search and seizure and denied him his right to counsel. Based on these Charter violations, he submitted that evidence should be excluded from his trial. [1]
[2] I granted the application and ruled that clothing, a cellphone, and an imitation firearm found in his room at a youth shelter where he was staying are to be excluded. These are the reasons expanding upon why I so decided.
A. OVERVIEW
[3] Around 2:00 a.m. of August 21, 2022, Toronto Police Services received a 911 call from a man who reported his girlfriend, P.K., a sex trade worker, had been sexually assaulted by a customer armed with a handgun. The man also robbed her of her cellphone. The police attended and canvassed the apartment building where it happened. Surveillance images of the suspect were secured.
[4] At 6:30 a.m. Sgt. Dawn and D.C. MacDonald of the Major Crimes Unit became involved in the investigation. They were aware that the suspect used the telephone number 437-328-6629 (henceforth “6629”) to communicate with P.K. D.C. MacDonald contacted Bell Canada regarding the phone number 6629 and received from them the name of the subscriber, Ramone Campbell, his date of birth, and an address of 9 Jeffton Crescent. D.C. MacDonald also received “ping” information that provided a geographical radius indicating where the phone was.
[5] After receiving the subscriber information, D.C. Dawn entered the name of Ramone Campbell in a police database and obtained an address of 747 Warden Avenue which is the location of a youth shelter. The police attended that address.
[6] At about 10:00 a.m. the police saw the applicant outside the shelter. A second ping confirmed the applicant’s phone was still in that area. Police officers attempted to place him under arrest, but he ran with the officers in hot pursuit. A few meters away they caught up to him, took him to the ground, and handcuffed him.
B. THE CHARTER VIOLATIONS
[7] The following Charter violations have been proven:
- A s. 8 violation in securing the subscriber information for and the pinging of cellphone 6629. The applicant had a reasonable expectation of privacy. Exigent circumstances have not been established to justify D.C. MacDonald’s actions.
- A s. 10(b) violation for failing to provide the applicant with his right to counsel in a timely fashion. Further, Sgt. Dawn asked the applicant for his room number before advising him of his right to counsel. The circumstances existing at the time did not justify the failure to provide him his right to counsel immediately or the officer’s questioning of the applicant.
- A further s. 8 violation as the search warrant could not have issued once the information from the above Charter violations are excised from the Information To Obtain (“ITO”).
C. GETTING THE CELLPHONE INFORMATION
[8] With respect to obtaining the subscriber information for and the pinging of 6629, two legal issues need to be decided: (1) does the applicant have a reasonable expectation of privacy in that information; and if so, (2) do exigent circumstances justify D.C. MacDonald’s obtaining of that information without a judicial authorization?
1. The applicant had a reasonable expectation of privacy
[9] A search occurs when the state invades a reasonable expectation of privacy. An expectation of privacy is reasonable where the public’s interest in being left alone by the government outweighs the government’s interest in intruding on the individual’s privacy to advance its goals, notably those of law enforcement: R. v. Bykovets, 2024 SCC 6, 489 D.L.R. (4th) 1, at para. 31. The onus is on the applicant to establish that he had a reasonable expectation of privacy: R. v. El-Azrak, 2023 ONCA 440, 167 O.R. (3d) 241, at para. 31.
[10] The Crown concedes that a reasonable expectation of privacy exists for the pinging of the applicant’s cellphone which provided information about his whereabouts: R. v. Bakal, 2021 ONCA 584, 157 O.R. (3d) 401, at paras. 12, 18. However, the Crown contests a reasonable expectation of privacy in the applicant’s cellphone subscriber information.
[11] The applicant submits that this case is on all fours with R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212. In that case, the police, by obtaining without judicial authorization, subscriber information for an Internet Protocol (“IP”) address from an internet service provider during their investigation of a child pornography offence, violated s. 8 of the Charter. The applicant submits as Mr. Spencer had a reasonable expectation of privacy in that subscriber information, so too does the applicant in his.
[12] The Crown responds that what occurred here was not a search. Although D.C. MacDonald believed it was necessary to obtain a production order for the subscriber information of 6626, nevertheless, the Crown still relies on the failure of the applicant to prove he had a reasonable expectation of privacy.
[13] To my knowledge, this specific issue has not yet been authoritatively decided in this province. In R. v. Boutros, 2018 ONCA 375, 361 C.C.C. (3d) 240, at paras. 28-30, and 36, the police had obtained subscriber information for a cellphone without judicial authorization. The trial judge held that the need to get a warrant for such subscriber information was governed by Spencer. On appeal, after referring to some trial decisions holding that Spencer did not necessarily apply to cellphone subscriber information, [2] Doherty J.A. stated that it remained an open question whether Spencer did apply in those circumstances. However, given that full argument and a more detailed evidentiary record was not presented on this issue, he declined to determine this and was prepared to assume a s. 8 violation for the purpose of the appeal.
[14] In commencing the analysis, it is my view that both parties take an overly absolutist position regarding whether a reasonable expectation of privacy exists for cellphone subscriber information. The question is not whether a reasonable expectation of privacy broadly exists in cellphone subscriber information per se. Rather, it is whether the applicant had his reasonable expectation of privacy intruded upon by the police in the circumstances of this case. Put another way, the totality of the circumstances test for the determination of a reasonable expectation of privacy must be anchored in the case-specific facts. Those facts can vary depending on the circumstances in which the police intrusion is conducted even if the same type of cellphone subscriber information is sought: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 11; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 35; R. v. Telus Communications Co., 2015 ONSC 3964, at paras. 24, 42; R. v. Malcolm, 2017 ONSC 7579, at para. 34.
[15] Spencer put forward the following lines of inquiry to guide the analysis of the totality of the circumstances:
- The subject matter of the alleged search;
- The claimant's interest in the subject matter;
- Whether the claimant had a subjective expectation of privacy in the subject matter; and
- Whether the subjective expectation of privacy was objectively reasonable.
See also Bykovets, at para. 31.
[16] This inquiry into the totality of the circumstances is normative, as well as factual. Societal interests in protecting individual dignity, integrity and autonomy must be balanced against effective law enforcement and other societal interests: R. v. Knelsen, 2024 ONCA 501, at paras. 40-45.
The subject matter of the alleged search
[17] Properly characterizing the subject matter of the search is vital. The subject matter of the search is defined functionally, and the analysis is aimed at determining what the police were really after. It examines the connection between the police investigative technique and the privacy interest at stake. It takes a holistic view and reflects technological realities: Bykovets, at para. 34.
[18] In instances dealing with informational searches where defining the subject matter of the search is more difficult, courts are to take a broad and functional approach. This entails looking not only at the nature of the precise information sought, but also at the nature of the information it could reveal including any inferences about associations and activities that can be drawn from that information: Spencer, at paras. 26, 31; Marakah, at paras. 15, 20.
[19] The Crown submitted that the subject matter of the search was simply the applicant’s name, birth date, and residential address as found in his subscriber information. That is all. It did not involve any core biographical details or anything about his activities, online or otherwise.
[20] I disagree.
[21] I find that the subject matter of the search in this case has direct parallels to the subject matter of the search in Spencer. In Spencer, the police identified an IP address corresponding to someone’s use of a computer to access and store child pornography through an online file-sharing program. All the police needed was the identity of the user of that computer to link them to the possession of the child pornography. They obtained that identity from the internet service provider. The police were then able to connect the activity relating to the possession of child pornography with Mr. Spencer's computer. In other words, the police, without any prior judicial authorization, were able to unlock the anonymity of the person connected to this very specific and known online activity.
[22] In this case, the police technique unlocked the anonymity of the person who met P.K. The police knew via text messages received by P.K. that the person using 6626 had arranged a sexual encounter with a sex trade worker. They also knew that this sexual encounter was forced during which something described to be a handgun was used. Also P.K. was later robbed of her phone. These were direct and immediate inferences, fixed at the time of the search, that the police could make based on the information provided by Bell Canada. They were not inferences threaded together at some later point in the police investigation: El-Azrak, at paras. 34-57. In short, the police were really seeking the identity of the perpetrator to connect him to his recent activities. It was not merely benign or generic cellphone subscriber information they were after: Bykovets, at paras. 41-43.
The claimant’s interest in the subject matter
[23] I find that the applicant has a direct interest in the subject matter. The subject matter of the search by D.C. MacDonald engaged the applicant’s informational privacy. Informational privacy is further distilled into the three privacy concepts of secrecy, control, and anonymity. Privacy as secrecy involves the ability to keep in confidence information that the individual wishes to be kept private. Privacy as control involves the ability to decide when, how and to what extent information about oneself will be shared. Finally, privacy as anonymity involves the ability to act publicly while remaining anonymous: Spencer, at paras. 34-43; El-Azrak, at para. 30.
[24] In the circumstances of this case, D.C. MacDonald’s request to link 6626 to subscriber information was effectively a request to link a specific person to a specific series of text messages between P.K. and the perpetrator. As in Spencer, at paras. 50-51, this request intruded upon the anonymity aspect of the informational privacy interest by linking the suspect with the anonymous activity of communicating in order to engage the services of a sex trade worker. The general nature of text communications themselves has been held to have a high degree of informational privacy: Marakah, at paras. 35-37.
[25] Moreover, I observe that the information imparted by Bell Canada was not simply the applicant’s name and address, but also his date of birth. One’s date of birth is a unique personal identifier that people typically take some pains to control to whom, when and how it will be shared.
The claimant had a subjective expectation of privacy in the subject
[26] Even in the absence of a claimant’s testimony, a subjective expectation of privacy can be presumed or inferred in the circumstances: R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 21.
[27] The Crown does not contend that the applicant had no subjective expectation of privacy. I infer that he does.
The subjective expectation of privacy was objectively reasonable
[28] In my view, in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. Again, this conclusion is based largely upon the reasoning in Spencer. The following are my reasons as to why the applicant has met the onus placed upon him.
[29] First, the place where the search occurred. [3] Bell Canada is a telecommunication service provider that is governed by the legislative framework in the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (“PIPEDA”). In Spencer, Cromwell J. relied in part on this legislative framework to find a reasonable expectation of privacy in the subscriber information. At para. 62, he states:
Given that the purpose of PIPEDA is to establish rules governing, among other things, disclosure “of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information” ... it would be reasonable for an Internet user to expect that a simple request by police would not trigger an obligation to disclose personal information or defeat PIPEDA’s general prohibition on the disclosure of personal information without consent.
The existence of laws, regulations, policies or other formal rules that govern behaviour in specific locations or by certain individuals or organizations may inform one’s reasonable expectation of privacy: Jones, at para. 45; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 83; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at paras. 31-33.
[30] Second, it is reasonable to expect a telecommunication service provider to keep information private where its receipt and retention of such information is incidental to its role of delivering private communications: Jones, at paras. 42-43.
[31] Third, in this context, the claimant’s control over the subject matter is not determinative. At the heart of informational privacy is the choice of individuals as to who and how information is divulged and yet being able to retain a reasonable expectation of privacy. In this case, the applicant chose to provide his personal details to Bell Canada to obtain its telecommunication services. By doing so, he was not giving up all aspects of his anonymity when it came to connecting 6626 to his identity: Bykovets, at paras. 46-48.
[32] Fourth, the private nature of the subject-matter. In assessing this factor, I am mindful that the purpose behind s. 8 of the Charter is to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This includes information which tends to reveal intimate details of the lifestyle and personal choices of the individual. Given this, as Karakatsanis J. explained in Bykovets, at para. 52:
Section 8’s emphasis on information which individuals “would wish to maintain and control from dissemination to the state” means that a reasonable expectation of privacy is assessed normatively rather than simply descriptively. The normative approach has an aspirational quality. “The question is whether the privacy claim must ‘be recognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free, democratic and open society’”. Thus, s. 8 will extend as far as privacy ought to extend to protect individual dignity, autonomy, and personal growth, and no further. Or, as Doherty J.A. put it, recognizing a reasonable expectation of privacy means “the impugned state conduct has reached the point at which the values underlying contemporary Canadian society dictate that the state must respect the personal privacy of individuals unless it is able to constitutionally justify any interference with that personal privacy”. This analysis is inevitably “laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy”. [Citations omitted.]
[33] Because this analysis seeks to determine whether people generally have a privacy interest in the subject matter of the state’s search, not only the information that the police seek to uncover in a particular case is considered, but all the information that the subject matter may tend to uncover is considered as well: Bykovets, at para. 53.
[34] It is at this point that the difficulties raised by Doherty J.A. in Boutros rears its head before me. Frankly, on the limited record in the instant case, I am unable to foresee all the potential revealing of private information engendered by the state compulsion of cellphone subscriber information. What I can say is that the technological realities of current cellphones (essentially mini-computers) and their modern-day usage by people, are vastly different in nature and order of magnitude from the days of landlines or more rudimentary mobile phones. The subscriber information, which in this case includes the date of birth of the subscriber, could be the first step in revealing an individual’s use of their cellular phone in the wider world; carrying with it the tangible risk of the potential exposure of intimate details of the lifestyle and personal choices of the person. This exposure can come from information compiled by an unknown number of persons, businesses, or agencies regarding that cellphone number and its use. It bears repeating, in the case at bar, the connection between the applicant and his activities on his phone was the subject matter of this specific search. Ultimately, I find the overall normative balancing should tip in favour of providing constitutional protection. While this search may not be the equivalent to the use of the internet that the Supreme Court of Canada was concerned about in Spencer or Bykovets, it shares sufficient similarities to draw the appropriate constitutional line in the same place.
[35] Just to illustrate, from the facts arising from this case, if what D.C. MacDonald did was not considered a search, the police without any prior judicial authorization, would be able to obtain from a telecommunication service provider, the subscriber information of any cellphone user who texted a sex trade worker for whatever purpose, whether to set up a meeting for a sexual encounter, to make enquiries about one, or something entirely unrelated. A reasonable and informed person would not expect that their anonymity from such police scrutiny would be shed so easily without a form of probable cause being shown to a judicial officer. A reasonable and informed person would not view this to be the kind of free, democratic, and open society that they would want to live in.
[36] In sum, and I wish to emphasize, based on the totality of the circumstances, on all the aforementioned factors I have alluded to, I find that the applicant has shown that he has a reasonable expectation of privacy.
2. No exigent circumstances existed
[37] In the alternative, the Crown submits that this warrantless search was justified based on exigent circumstances. As previously stated, contrary to the initial Crown position that the applicant had no reasonable expectation of privacy, D.C. MacDonald testified that he knew a production order was required to obtain the subscriber information for 6626. However, he was of the view that exigent circumstances justified the receipt of the information without any judicial authorization.
[38] The warrantless search doctrine involving exigent circumstances, is not designed to promote efficiency or expediency. Rather, its singular purpose is to accommodate those situations where the state can forgo obtaining prior judicial authorization because of the urgency of the matter at hand. More specifically, the police can act without prior judicial authorization where there exists an imminent threat to police or public safety or in circumstances where there exists a risk of the imminent loss or destruction of evidence: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at paras. 32-33; R. v. Feeney, [1997] 2 S.C.R. 13, at para. 52; R. v. McDonald, 2014 SCC 3, [2014] 1 S.C.R. 37; R. v. Shomonov, 2019 ONCA 1008; R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456, at para. 24; Bakal, at para. 19.
[39] Spencer, at para. 74, expressly confirms the police power to obtain subscriber information in exigent circumstances such as where the information is required to prevent imminent bodily harm.
[40] Applying the law to the facts of this case, I find that D.C. MacDonald did not subjectively believe that the subscriber information was required to prevent an imminent threat to public safety. Further, objectively, those grounds did not exist.
[41] Regarding the subjective element of the test, though D.C. MacDonald testified that he believed he had exigent circumstances, I do not accept that testimony.
[42] From his experience, the officer knew he required a production order to obtain subscriber information. Based on the information he was aware of in the investigation, D.C. MacDonald testified he believed it was an urgent matter and critical for public safety to identify the suspect as he was concerned about further victims being sought out and the fact the suspect knew the apartment unit P.K. frequented. He testified depending on the telecommunication service provider, it took 30 to 60 days for subscriber information to be provided in response to a production order. [4] It was his experience that without such an order, the provider would not provide any information.
[43] Cross-examination undermined D.C. MacDonald’s testimony. I find that his knowledge of what should constitute exigent circumstances was significantly lacking. He also defined exigent circumstances very loosely. Moreover, as his testimony developed under cross-examination, it became quite apparent that his view of any danger the suspect might pose to the public was based upon speculative possibilities and not on any concrete foundation. For instance, his stance that the suspect could pose a threat to P.K. by returning at any time was argumentative and implausible given that the police had secured the unit and that he made no enquiries as to where she was at the time. Further, and to the detriment of his credibility as a witness, despite his denial that his unique belief that it would take 30 to 60 days [5] to receive the information from the carrier was a factor in relying on exigent circumstances, his initial responses to that suggestion made under cross-examination, despite the question being asked repeatedly, was evasive.
[44] I do not doubt D.C. MacDonald had concerns about public safety, but I do not accept he believed any threat to public safety was imminent in this case. I find that he chose to rely on exigent circumstances because it was more efficient or expedient to do so since it was his belief that requesting and obtaining a production order would take too long. Exigent circumstances cannot be relied upon for that reason.
[45] Furthermore, objectively, exigent circumstances did not exist given the lack of imminency.
[46] First, the police had already waited eight hours after receiving the 911 call about the offence at 2:13 a.m., before D.C. MacDonald contacted Bell Canada. From the initial 911 call, the police were aware of the cellphone number 6629 used by the suspect, and they also had a possible address for him because the suspect used P.K.’s Amazon account. Before D.C. MacDonald’s involvement, Central North Criminal Investigation Bureau (“CIB”) had already been investigating the occurrence and knew that the offence allegedly happened just after midnight. D.C. MacDonald came on shift at 8 a.m. and their Major Crime Unit team was asked by the CIB to assist about an hour after the Major Crime Unit team started their shift. Looking at this timeline of police action and inaction, the lack of any sense of urgency motivated by any imminence of threat to public safety is striking.
[47] Second, P.K. was not in the apartment unit at the time D.C. MacDonald contacted Bell Canada. She had gone to hospital to have a sexual assault kit done. Moreover, P.K. had just rented this apartment for the short term to conduct her business. She did not live there and did not have to return there. The apartment was unoccupied and secured by the Toronto Police Service. Also, there was no reason for the suspect to return there.
[48] Third, P.K. had no prior or ongoing relationship with the suspect. There was no reason why the suspect would wish her any further harm.
[49] Fourth, the police had no knowledge of the suspect’s background or whether he had any prior history of violence. P.K. did not know that the object she identified as a firearm was real. Additionally, D.C. MacDonald was unaware of any information that there were any incidents in the past, similar to this, that might show that the suspect was a serial sexual offender.
[50] Given this factual context, I find the resort to exigent circumstances troubling. If anytime an individual purports to use a firearm during the course of a violent offence and the police seek to identify and capture them quickly, then the judicial authorization provisions of the law will be bypassed based upon an ostensible exigent circumstance to prevent imminent threat to public safety. Surely, that cannot be the case.
[51] The Crown relied on the case of Bakal to support his position that objectively exigent circumstances were made out. On the facts of that case, the complainant had called 911 at 3:00 a.m. reporting she had been subjected to a violent assault by her boyfriend who had left with his gun possibly travelling to Ottawa. A police officer, upon getting involved in the investigation some 17 minutes after the 911 call, based upon exigent circumstances, had the telecommunication service provider ping the boyfriend’s cellphone at 3:31 a.m. The police found the appellant on the highway and effected an arrest. The finding of exigent circumstances was upheld on appeal.
[52] In my view, Bakal is distinguishable on its facts. In Bakal, police received information from the complainant that the appellant had a past history of violence against her, had threatened her with a gun, and continued his threats against her life. It seems the police also had other information about his violent past. Further, she advised that the appellant normally carried his handgun with him. The appellant had left just after assaulting the complainant with suitcases and the gun, and he had family in Ottawa. Finally, the timing of the police actions supported the urgency with which they viewed the situation. In light of this factual matrix, the Court of Appeal agreed that the exigent circumstances exception was met. In the case at bar, a similar factual matrix does not exist.
[53] In conclusion, a s. 8 violation has been proven.
D. RIGHT TO COUNSEL
[54] The duty to inform of the right to counsel arises immediately upon detention or arrest: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24.
[55] Except in cases of urgency or danger, the police must hold off from questioning or seeking to obtain incriminating evidence from the detainee, until a detainee is properly advised of their right to counsel and if one is desired, a reasonable opportunity to consult counsel is provided: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 29; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38; R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 50; R. v. G.T.D., 2018 SCC 7, [2018] 1 S.C.R 220, at para. 2.
[56] Sgt. Dawn violated the applicant’s right to counsel in both ways.
[57] On the first aspect of the violation, even on his own admission, Sgt. Dawn did not advise the applicant immediately of his right to counsel. He testified it took about five minutes from the time the applicant was arrested until he provided the applicant with his right to counsel. [6] Although five minutes is not a long time, it was not ‘immediately’ within the meaning of s. 10(b).
[58] After handcuffing him, Sgt. Dawn stood the applicant up and administered a pat down search. After Sgt. Dawn found a cellphone on him, he advised the applicant he was under arrest for sexual assault and robbery. So far, these were legitimate reasons to delay right to counsel to ensure everyone’s safety. However, rather than giving the applicant his right to counsel immediately after that, Sgt. Dawn walked away from the applicant who was seated and handcuffed on a grassy area. The officer called the detective constable back at the CIB who had been investigating the case, to give her information about the arrest. Then, Sgt. Dawn and the detective constable did a call back to test the cellphone in Sgt. Dawn’s possession to determine if it was 6626. In my opinion, none of this were legitimate reasons to delay giving the applicant his right to counsel.
[59] Regarding the second aspect of the violation, the following was the evidence. Sgt. Dawn admitted that after the pat down search, he asked the applicant for his name, date of birth, and where he lived. He initially testified that he did not ask much more than whether the applicant lived at the youth shelter. Sgt. Dawn explained that he asked about where the applicant was staying in order to prepopulate the arrest screen for the applicant’s processing in police custody either by booking officers or the CIB.
[60] I find this most implausible. Sgt. Dawn did not take down the information received in his notes. He was never going to be the transporting officer for the applicant. That would be the purview of one or more uniformed officers. Sgt. Dawn did not need to ask these questions, he did not input any of it into the computer arrest screen, and the transporting or booking officers could easily have obtained such information. I find his testimony lacked candour. Sgt. Dawn’s initial failure to recall whether he asked the applicant for his room number was not frank. D.C. Janeczko, the affiant of the ITO, testified that Sgt. Dawn told him that upon arrest, the applicant gave Sgt. Dawn his room number. Sgt. Dawn’s lack of memory on this point was too convenient to be believable. Under cross-examination, when pressed by questions designed to show he asked about the room number for the purpose of obtaining a search warrant, his answers were evasive and somewhat argumentative. Sgt. Dawn testified he did not know about the layout of the youth shelter, but he was aware that some shelters had individual units, and some did not. Additionally, he knew that some shelters would voluntarily give a room number but not all were ready to provide that type of information to the police due to privacy concerns. In my opinion, Sgt. Dawn was in fact interested in the applicant’s living arrangements for the purpose of getting the search warrant. That was the reason why he asked the applicant what unit he resided in. To make it worse, Sgt. Dawn asked that inculpatory question knowing that he had not yet given the applicant his right to counsel or right to remain silent.
[61] Finally, I must have regard to the applicant’s own testimony given on this application. Most of his testimony was not reliable, some of it not credible – so much so that the defence ultimately abandoned many grounds of Charter relief. The one thing that had somewhat of a ring of truth to it was the applicant’s testimony that Sgt. Dawn questioned him about his room number while he was handcuffed and before he was given his right to counsel. Given that the applicant, even on Sgt. Dawn’s testimony, was stating on his arrest that he had previously been a security guard and knew something about the Criminal Code, I accept that he would not have volunteered that information unless he was questioned by the officer about it.
E. THE GAROFOLI APPLICATION
[62] On August 21, 2022, a search warrant was issued to search room 26, 747 Warden Ave. The applicant seeks to quash this search warrant.
[63] There is a presumption of validity on judicial review of a search warrant. The onus is on the challenging party to show the warrant is invalid. The standard of review is whether the issuing justice could, acting judicially, have found that the legal thresholds were met; whether the ITO contained sufficient credible and reliable evidence on which the authorizing justice could have found reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of the search: R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 51, 54; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 81, 84; R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 20.
[64] When information in the ITO is obtained in violation of the Charter, the remedy provided in that instance is that this information is excised and the determination of whether the warrant could have issued is based on what remains after such excision: R. v. Zacharias, 2023 SCC 30, 431 C.C.C. (3d) 421, at paras. 30-34; Araujo, at para. 52; R. v. Grant, [1993] 3 S.C.R. 223, at p. 251.
[65] In the ITO, D.C. Janeczko incorporated the information received from Bell Canada about Ramone Campbell and also gained from the applicant’s arrest. [7]
[66] The Crown concedes that once the information obtained from the two Charter violations is excised from the ITO, the issuing justice, acting judicially, could not have found that there was sufficient credible and reliable evidence to permit the justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of the search. In short, absent the procuring of the identification of the suspect and where he resided, this search warrant could not have issued.
[67] Hence, an additional s. 8 violation has been proven on a balance of probabilities given the applicant’s home was searched without a warrant.
F. SECTION 24(2) AND THE EXCLUSION OF THE EVIDENCE
[68] As no issue arises from the first stage of the s. 24(2) analysis – whether the evidence was obtained in a manner that violated the applicant’s rights – I will move on to consider the factors set out R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, which are:
- the seriousness of the Charter-infringing state conduct;
- the impact of the breach on the Charter-protected interests of the accused; and
- society’s interest in the adjudication of the case on its merits
The seriousness of the Charter-infringing state conduct
[69] The first line of inquiry under s. 24(2) asks whether the Charter-infringing state conduct is so serious that the court must dissociate itself from it. The spectrum of seriousness involves, at one end, “inadvertent or minor violations of the Charter” and, at the other, “wilful or reckless disregard of Charter rights”: Grant, at para. 74; Zacharias, at para. 51. The police conduct should be assessed and measured by the question whether its nature, the extent of the departure from Charter standards, its deliberateness, negligence, or carelessness, was such that dissociation is required: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22.
[70] I find the Charter violations in this case most serious. There is a strong need for the court to disassociate itself from this Charter-infringing state conduct.
[71] For both the s. 8 violations and the s. 10(b) violation, the seriousness was aggravated by an element of bad faith on the part of D.C. MacDonald and Sgt. Dawn.
[72] Warrantless searches on the basis of exigent circumstances is a well-established legal doctrine. D.C. MacDonald knew he needed a production order to get the subscriber information. I find that he relied on exigent circumstances knowing that there was no imminent threat to public safety. After assessing his testimony carefully, it struck me that he was resorting to the doctrine of exigent circumstances hoping that Bell Canada might agree to expeditiously advance the investigation by identifying and locating the suspect. In other words, he sought to receive information knowing that without a judicial authorization, he did not have the legal grounds to do so. He did so merely out of expediency.
[73] Equally the giving of the right to counsel and the duty to hold off from questioning is a well-established legal doctrine. I find that Sgt. Dawn knowingly delayed in giving the applicant his right to counsel. There was no legitimate reason to delay it. He could have easily called the officer at the CIB and done a call-back on the phone he found on the applicant after completing this important constitutional duty. Then to make it worse, he questioned the applicant to get his room number at the shelter to support a search warrant or otherwise advance the investigation. It may well be that he was concerned that the shelter would not have divulged this information. It is true that D.C. MacDonald did get that information from shelter staff shortly thereafter. However, the fact that the police could have obtained that information legally compounds the seriousness of the misconduct since despite being aware of this possible route to get that information, Sgt. Dawn charged ahead and questioned the applicant about his room number without giving him his right to counsel. This was a flagrant violation.
[74] While the applicant was properly informed of his right to counsel multiple times that day and did speak with a lawyer, this does not mitigate the seriousness of the initial s. 10(b) breach: R. v. Griffith, 2021 ONCA 302, 408 C.C.C. (3d) 244, at para. 71; R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 53.
[75] In addition, the nature of D.C. MacDonald and Sgt. Dawn’s testimony before me, while I do not go so far as to say it was dishonest, does not advance the case for admission. Largely, their testimony seemed to be motivated by an after-the-fact desire to justify unjustifiable actions by resorting to implausible explanations: R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 102; R. v Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 88.
[76] I must consider all the breaches of the Charter: the two separate s. 8 violations and the s. 10(b) violation in its dual aspect. Multiple Charter breaches tend to aggravate the overall seriousness of the violations: R. v. Calderon (2004), 188 C.C.C. (3d) 481 (Ont. C.A.), at paras. 93-94; R. v. Davidson, 2017 ONCA 257, 352 C.C.C. (3d) 420, at para. 48.
[77] This line of inquiry pulls very strongly for exclusion.
The impact on the Charter-protected interest
[78] The second line of inquiry has as its concern the message to the public by the admission of the evidence that Charter rights are of little avail to the citizen. Courts must evaluate the extent to which the breach undermined the interests protected by the right infringed: Grant, at para. 76; R. v. Tim, 2022 SCC 12, 412 C.C.C. (3d) 147, at para. 90. Like the first line of inquiry, the second envisages a sliding scale of conduct, with fleeting and technical breaches at one end of the scale and profoundly intrusive breaches at the other: R. v. McColman, 2023 SCC 8, 423 C.C.C. (3d) 423, at para. 66.
[79] The interest protected by s. 8 is privacy. In this case, both territorial and informational privacy was impacted by the intrusion: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 24. Given that the police searched the applicant’s room without a valid search warrant, the impact on his privacy interest was serious; room 26 was the applicant’s “castle”: R. v. Stairs, 2022 SCC 11, 412 C.C.C. (3d) 283, at para. 49. With respect to the failure to get a judicial authorization for his subscriber information, it is true that the actual information itself did not involve much about the applicant’s core biographical identity, aside from perhaps his date of birth. Nevertheless, it still stripped away the anonymity afforded to the applicant in contacting a sex trade worker with a cellphone. Considered as a whole, the Charter-infringing state conduct had a significant deleterious effect on his s. 8 privacy interest.
[80] The right to counsel is directed at assisting detainees with regaining their liberty and protecting them against the risk of involuntary self-incrimination: R. v. Brydges, [1990] 1 S.C.R. 190, at pp. 202-3. Additionally, the scope of the s. 10(b) protection extends to a detainee’s psychological security, because access to counsel gives the detainee “the sense that they are not entirely at the mercy of the police” during detention: see R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45; Jarrett, at para. 52.
[81] I find that the impact of the s. 10(b) violation on the applicant’s protected interests was significant. It was not just that the informational component of the s. 10(b) right was delayed a few minutes, but Sgt. Dawn deliberately used that time to ask the applicant which shelter room he inhabited. The applicant then incriminated himself. This information made its way to the ITO that was used to search for the evidence at issue on this application. For a violation of the informational component of s. 10(b), the lack of causation between the breach and the evidence is not per se a mitigating factor: R. v. Davis, 2023 ONCA 227, 166 O.R. (3d) 401, at para. 65. Here given its use in the ITO, there is a stronger connection between the evidence and the breach.
[82] Overall, this line of inquiry also favours exclusion of the evidence.
Society's interest in the adjudication of the case on the merits
[83] The third and final factor is society’s interest in the adjudication of the case on its merits. The third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry requires courts to consider both the negative impact of admission of the evidence on the repute of the administration of justice and the impact of failing to admit the evidence. At this stage, I consider factors such as the reliability of the evidence and its importance to the Crown’s case: Harrison, at para. 33. The underlying principle here is the truth-seeking function of the criminal trial process and whether the criminal justice system would be better served by admission or by exclusion, considering the seriousness of the offence. While these are important factors to be weighed in the balance, they cannot be skewed in such a way that they overwhelm the s. 24(2) analysis: Harrison, at para. 40.
[84] In terms of the truth-seeking function, the evidence sought to be excluded is clothing, a cellphone, and an imitation firearm found in room 26 of the shelter. This is reliable evidence. Moreover, they are very probative for the Crown’s case in proving the perpetrator’s identity. Finally, the charges are serious. On the other hand, exclusion of this evidence does not bring the prosecution case to an end. The Crown has other evidence to rely upon to prove the applicant is the perpetrator. Therefore, while there is some impairment of the truth-finding process, it remains open to the trier of fact to come to a fair and just verdict. So, while this line of inquiry favours inclusion, it only does so moderately.
The final balancing
[85] The final balancing of these lines of inquiry must always keep its focus on the long-term effect of the admission or exclusion of the evidence. The final balancing is a qualitative exercise and not a mathematical one. Exclusion is aimed not at punishing police misconduct or compensating the accused, but at systemic and institutional concerns: McColman, at para. 54.
[86] When balancing the Grant factors, the cumulative weight of the first two lines of inquiry must be balanced against the third line of inquiry: R. v. Beaver, 2022 SCC 54, 420 C.C.C. (3d) 421, at para. 134. Where the first and second inquiries, taken together, make a strong case for exclusion, although not an inflexible rule, the third inquiry will seldom if ever tip the balance in favour of admissibility: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 142; R. v. Reilly, 2020 BCCA 369, 397 C.C.C. (3d) 219, at paras. 148-149, aff’d, 2021 SCC 38, 75 C.R. (7th) 313.
[87] In this case, the first two lines of inquiry cumulatively pull very strongly for exclusion. The third line of inquiry quite clearly in my view does not overcome this exclusionary effect. The proper balance in this case calls for exclusion of the evidence. Admitting it would bring the administration of justice into disrepute.
JUSTICE S. NAKATSURU
Released: July 11, 2024.
Footnotes
[1] While the applicant originally requested a stay of proceedings as a remedy, he later abandoned this.
[2] The cases cited by Doherty J.A. were R. v. Lattif, 2015 ONSC 1580, 331 C.R.R. (2d) 72, at paras. 6-10; R. v. Khan, 2014 ONSC 5664, at paras. 24-25, 27; R. v. Morrison, 2014 ONCJ 774, at paras. 23-26. See also R. v. Schertzer, 2011 ONSC 220, aff’d 2015 ONCA 259, 325 C.C.C. (3d) 202, leave to appeal dismissed, ; R. v. McPherson, 2023 ONSC 232, at paras. 92-96.
[3] This may well be a distinguishing factor from other fact scenarios where the police obtain information about the identity of the user of a particular telephone number from others like a family member, friend, landlord, or a business.
[4] Although D.C. MacDonald testified that the telewarrant process was not available for production orders, currently, a telewarrant can be obtained for such production orders: Criminal Code, s. 487.1(1)(o). To get subscriber information, various judicial authorizations under different provisions of the Criminal Code can be resorted to: (i) the general production order under s. 487.014; (ii) a production order to trace specified communications under s. 487.015, Bykovets, at paras. 85-86; (iii) a production order for transmission data or tracking data under s. 487.016 and s. 487.016 and using an assistance order pursuant to s. 492.2 linked to the transmission data recorder warrant obtained, to compel production of subscriber information, R. v El-Zahawi and Chung, 2024 ONSC 122, at para. 297 and footnote 25; (iv) even a regular s. 487 search warrant where ss. 487(2.1) and (2.2) provides for a search of a computer system for data on which the subscriber information would be stored. All the provisions and the forms referred to therein allow for the police to receive such information by a certain period of time either expressly or through endorsement of a condition on the judicial authorization.
[5] Sgt. Dawn testified in his experience it normally took 5 to 7 days to receive subscriber information when using a production order.
[6] I suspect that it was longer than that.
[7] Paras. 26 to 30 of the ITO.