BRACEBRIDGE COURT FILE NO.: CR-23-04

DATE: 20240927

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

NOAH HOPE

Applicant

William Barnes, for the Provincial Crown

Kimberly Miles for the Federal Crown

Jay Herbert, for the Applicant

HEARD: September 23, 2024

REASONS FOR DECISION ON s.8 APPLICATION

HEALEY, J.:

Overview

[1] Defence counsel served and filed a Notice of Application on July 25, 2024, seeking a finding that the Applicant’s section 8 Charter rights against unreasonable search and seizure have been breached, and seeking an order excluding all evidence resulting from searches of his cell phone records under section 24(2).

[2] A warrant for the search of three phones seized on arrest was obtained from Justice of the Peace Ballagh on January 19, 2023.

[3] The Crown seeks summary dismissal of the application on the grounds that it is manifestly frivolous. Alternatively, the Crown takes the position that leave should not be granted for a hearing of the application (which has not been sought in the application), as it will interfere with the orderly conduct of the trial. The trial began on April 19, 2024, and is scheduled to continue on October 31, 2024 for a final day.

[4] At the hearing Mr. Herbert conceded that on a strict reading of the Criminal Proceedings Rules for the Superior Court of Justice (the “Rules”), leave is required from the court to bring the mid-trial application. He made an oral request that leave be granted.

[5] The court heard argument on the summary dismissal before deciding whether to hear the application for leave. After hearing argument, the summary dismissal was granted with Reasons to follow.

Test for Summary Dismissal

[6] Rule 34.02 of the Rules provides that the presiding judge may conduct a preliminary assessment of the merits of any application on the basis of the materials filed and, if satisfied there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry.

[7] The test for summary dismissal is an onerous one, with the burden on the moving party. The standard for summary dismissal is whether the underlying application is manifestly frivolous: R. v. Haevischer, 2023 SCC 11, at para. 66. It is a “rigorous standard that will allow judges to weed out those applications that would never succeed and which would, by definition, waste court time”.: at para. 72.

[8] The procedure to be followed to determine whether an application meets the threshold is outlined in Haevischer at paragraphs 81 to 89: the judge must assume the facts alleged by the applicant are true and must take the applicant’s arguments at their highest; a review of the underlying application should reveal its factual foundation and point toward anticipated evidence that could establish the alleged facts; and the judge ought to generally assume the inferences suggested by the applicant are true, even if competing inferences are proffered. An application may be manifestly frivolous if it depends on legal propositions that are clearly at odds with settled law, where the remedy sought could never issue on the facts of the particular application, or where key portions of the application are missing.

Grounds Cited for the Application

[9] The grounds for the application are that the OPP exceeded their authority in searching two of the three cell phones seized following the Applicant’s arrest.

[10] The application is predicated on the assertion that the warrant granted for the search of the cell phones limited that search to the dates of December 9, 2022 to December 16, 2022. In executing the warrant, the police searched two of those phones, both iPhones, using start and end dates outside the permitted timeline in the warrant, ie: December 8 and December 17.

[11] It is asserted in the application that, in doing so, the OPP violated the Applicant’s right to protection against unreasonable search and seizure.

[12] An alternate position, taken by the defence only after reading the Crown’s response, is that the warrant is invalid by reason of being overly broad or, in the further alternative, too vague.

[13] The Applicant has provided the warrant as an exhibit to the affidavit of Stephanie Power-Deriss sworn July 25, 2024. The reference to the date range relied on by the Applicant appears under the terms and conditions in the warrant, which indicates that the examination and analysis of the cell phone devices will be conducted in relation to the following categories:

a. Communication in relation to other persons who Noah Hope had communicated with for the purposes of trafficking any substance as defined under the Controlled Drug and Substance Act;

b. Phone directories (“address” or “contact” lists)

c. A timeline of activity in relation to pre-offence, offence and post-offence usage, specifically:

i. December 9, 2022 to December 16, 2022 relation (sic) to the cellular devices seized.

d. Passwords, encryption keys and access codes required for access.

e. Device software configuration settings including geographic location information.

[14] The proposed evidence of the improper extraction outside the limits of the warrant are two screenshots provided for each iPhone extraction summary, being exhibits “D” and “F” to the affidavit of Stephanie Power-Deriss. Those exhibits indicate, under “report filter used” the following: 08-Dec-2022 To: 17-Dec-2022 (N…) The remainder, if any other information exists, is cut off.

Analysis

[15] For the purpose of this application, I must take the Applicant’s case at its highest. I infer from the proposed evidence, which I must accept as true, that the search filter for the extractions that were input by Officer Parker, the member of the O.P.P. Digital Forensics Unit who performed the extractions, were the dates of December 8 and 17, 2022.

[16] To succeed on the application, the Applicant must show that the warrant prohibited the police from searching for evidence of communications for the purpose of trafficking from December 8 or 17. While the iPhones were in the police vault by the latter date, it is conceivable that communications were sent to the phones by others on December 17.

[17] This will not be possible for the Applicant. On its face, the warrant does not provide a date limit for extractions that focus on communications for the purpose of trafficking. Such communications fall into a completely separate category than part (c), which is a timeline of activity in relation to pre-offence, offence and post-offence usage. It is only the timeline of usage that has been limited to December 9 to 16.

[18] Mr. Herbert submitted that such a distinction makes no sense, since “usage” of a cell phone is for the purpose of communication. That is not the case; iPhone can of course function for purposes other than communication, ways that may be relevant to the offences. In most trafficking cases, the police typically seek to uncover and examine the history of communications on phones to establish relationships, frequency and timing of communication, and language employed for the purpose of establishing trafficking. The warrant authorized them to reasonably examine and analyze the iPhones to obtain evidence of trafficking and possession of a firearm. The fact that the search parameters were voluntarily limited to between December 8 and 17 could not establish that the police made a mistake or were acting without regard to the Applicant’s Charter rights.

[19] In conclusion, this is a warrant limited by subject matter, not date. For this application to succeed, the court would have to find that the warrant prohibited the police from looking at any communications on the iPhones received on December 8 or 17, 2022. As such a finding could not be made, the basis of the application is fatally flawed.

[20] There is a second problem leading to the determination that the application is doomed to fail.

[21] To claim s. 8 Charter protection, an applicant is required to demonstrate, on a balance of probabilities, that state conduct infringed his reasonable expectation of privacy: R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 SCR 341, at paras. 20-24.

[22] It is established law that the focus of the inquiry to decide whether there has been a breach of s. 8 in relation to the search of a personal device is not on the technical steps in support of the search, but rather on the conduct of the investigators and whether they went beyond the scope of their authority. The applicant has the onus of showing that the police have searched something outside the scope of the warrant when reviewing the extraction files.

[23] The three authorities cited by the Applicant involving cell phone searches all make an explicit distinction between the process of extraction and the examination of the data by the police. In R. v. Millard and Smich, 2016 ONSC 348, more than a year’s data was extracted from the device. The applicant’s position was that the search of the iPhone in that case was an “indiscriminate data dump of all of the information on the phone”. At paragraph 35, the court stated that “[i]n considering the police conduct, the issue at its highest, is whether the police examined data outside that which was contemplated by the issuing jurist”.

[24] The court dismissed the application, concluding that there was “no evidence police looked at data the issuing jurist did not contemplate”, and no “evidence that police were simply rummaging through the phone in search of evidence of other crimes”: paras. 35 and 37.

[25] In R. v. Shen, 2023 ONSC 6692, the entire contents of the device were extracted. There was no evidence, as is similarly the case here, that the officer performing the download looked at any of the files. Spies J. stated, at para. 120:

…Mr. Shen’s privacy interests were not engaged until DC Lam began to do his search of the extraction file that DC Morden downloaded. ..

[26] In R. v. Jattori-Williams, 2023 ONSC 4577, the entire contents of the device were extracted. At para. 98, Bawden J. stated:

I 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.

[27] The application is intentionally vague and silent as to the evidence obtained by the police that is alleged to have exceeded the scope of the warrant. The application does not even allege that the investigating officer reviewed anything outside the scope of the warrant. The application does not point to evidence anticipated to be relied upon by the Crown that was created on December 8 or 17, 2022. Evidence that the police searched beyond the scope of the warrant, or performed an unreasonable search, is a key part of the application. The application cannot succeed without such evidence.

[28] This is not a case of the evidence being unavailable. As the trial judge, I am aware that the Applicant has known about the evidence found on the iPhones since being provided with the search results in July 2023. Further, the Applicant’s counsel was served with expert reports from the Federal Crown containing the evidence on which it is relying on January 2, 2024 and June 12, 2024.

Order

[29] The application is manifestly frivolous and must be dismissed. Order to go accordingly.

The Honourable Madam Justice S.E. Healey

Released: September 27, 2024