COURT FILE NO.: CR-23-30000640 DATE: 2024-12-10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – SATHISKUMAR RAJARATNAM Defendant

Counsel: Rob Fried and Brad Ververs, for the Crown Leora Shemesh, for the Defendant

HEARD: November 14 – 15, 2024

There is a publication ban under s.648 of the Criminal Code in relation to all matters heard in the absence of the jury until the jury retires to consider its verdict or the matter is complete.

Pre-Trial Motion

Sections 8 and 24(2) of The Canadian Charter of Rights and Freedoms

G. ROBERTS, J.:

[1] Leon Tyrell was stabbed shortly before 11:40 am on August 20, 2022 during an altercation with Sathiskumar Rajaratnam. Mr. Tyrell was conscious when first responders arrived, but shortly after became unresponsive, unconscious and stopped breathing. He was taken to hospital where he was pronounced dead around 12:45 pm.

[2] The altercation between Mr. Tyrell and Mr. Rajaratnam was captured on surveillance video. There were also a number of witnesses who saw the altercation, and saw Mr. Rajaratnam leave shortly after in his vehicle, together with Anisa Mohamed and her toddler. Based largely on these sources, police applied for search warrants for Mr. Rajaratnam’s residence and vehicle. Both warrants were granted at 6:45 am on August 21, 2022, although the authorizing justice deleted a request to seize “any surveillance systems located at the residence” on the basis that the grounds were not sufficient to support a belief that such a system would be found at the residence.

[3] Both warrants were executed beginning shortly after 7:50 am on August 21, 2022. Mr. Rajaratnam’s unit was secured, as was his vehicle, which was found parked in the parking garage of his building. Police then searched both places. During the search of the vehicle, police seized, among other things, a dash camera and its memory card.

[4] Defence counsel argues that the search of the contents of the dash camera memory card violated s.8 of The Canadian Charter of Rights and Freedoms (“Charter”) because police did not obtain prior judicial authorization. The search warrant did not cover the dash camera and its card, and police did not seek and obtain explicit prior judicial authorization before searching the memory card. This resulted in a significant infringement of Mr. Rajaratnam’s informational privacy, and the evidence obtained from the illegal search should be excluded under s.24(2) of the Charter.

[5] The Crown argues that the dash camera and its attached memory card fell within the search warrant, thus police did have the required prior judicial authorization to search the contents of the memory card. In the alternative, the relevant contents of the memory card should be admitted under s.24(2) of the Charter.

The Search Warrant

[6] Appendix A-2 to the search warrant for Mr. Rajaratnam’s Highlander listed the things to be searched for in the vehicle, including “f. Any cellular or electronic device capable of communication”. (The authorizing justice insisted on receiving one package, thus the affiant distinguish between the search of the vehicle and the search of the residence by labelling Appendix A to the vehicle search as A-2, and Appendix A to the residence search as A-1.)

[7] Appendix A-2 included the heading “Terms and Conditions (Cellular Phones and Electronic Devices)” followed by:

The examination and analysis of the cellular phones and electronic devices, referred to above will be based on the offence set out in Appendix B. The examination and analysis may be conducted in relation to the following data (stored and deleted content) contained within the devices:

(a) Data relating to use, ownership and access to the device.

(b) Data relating to the configuration of the device, including internal and external system or program configuration.

(c) Communication history, including but not limited to, emails, text messages, and call logs.

(d) Contacts, addresses and phone books.

(e) Calendars and scheduled events.

(f) Internet access history showing websites visited, including any social media accounts.

(g) Digital media content, such as writings, pictures, videos, or sound recordings.

[8] After summarizing the surveillance video, the witness statements, and information obtained about Mr. Rajaratnam, his vehicle and its whereabouts, the ITO set out the grounds to believe an offence has been committed, followed by the grounds to believe the items to be seized will afford evidence of the offence set out in Appendix B (second degree murder). Paragraph 66 explicitly addressed “any cell phones located inside the addresses and motor vehicle”. Paragraph 67 then addressed the examination and “analysis of cellular devices”.

[9] The Crown relies in particular on the definition of communication contained in para.67.d.ii.:

Therefore, I reasonably believe that an examination and analysis of these devices will afford evidence in relation to the named offence listed in Appendix “B”. The examination and analysis will be based on the offence identified in Appendix “B” and conducted in relation to the above categories….

d. Multimedia content which includes but is not limited to pictures, videos and sound recordings ….

ii. It is not uncommon for a user to document their activities using photographs, video or sound files. Devices can be configured to allow the capture of this type of content by activation of a single button. In and of themselves this content is a form of communication, it can be used to infer ownership, assist in establishing or developing the activity timeline and may in some instances be actual documentation of the offence.

Evidence of the Officers Involved in the Seizure and Search

[10] DC Wyard is a FIS officer who was involved in executing both search warrants. She seized the dash camera from Mr. Rajaratnam’s vehicle. It was photographed in place, and she put a tag on it – #9288-8 (her badge number plus the number 8). DC Wyard brought the items seized back to her office, prepared the required paperwork, and submitted them to the division locker management service for pick up by a homicide officer.

[11] DC Wyard had a copy of both search warrants and their attached Appendix A, listing the things to be searched for. She did not have a copy of the full ITO (Appendix C). She testified that she believed that the dash camera fell within the category of “electronic device capable of communication” explicitly included in category “f” of Appendix A for the vehicle search warrant. Even if it did not, however, she testified that she would have seized it pursuant to s.489 of the Criminal Code, which permits a person executing a search warrant to seize “in addition to the things mentioned in the warrant, any thing that the person believes on reasonable grounds…(c) will afford evidence in respect of an offence against this or any other Act of Parliament.” DC Wyard explained that she believed the dash camera would show the vehicle in the location of the offence, and where it went, and also possibly include recorded audio. She explained that her personal dash camera recorded audio so believed this one could as well, but agreed in cross-examination that she did not know that for certain. She noted that her dash camera was also capable of connecting to the internet.

[12] DC Boward was the affiant who drafted the search warrants and their appendices, including the ITO. He believed the dash camera was an electronic device capable of communication and therefore fell within category “f” of Appendix A to the vehicle search warrant. He believed that the terms and conditions set out at a, b, and g related to data on the device. DC Boward noted that a dash camera had a computer, a chip, a mother board, and was capable of connecting to a cell phone or wifi. He explained that when a person connects to it with a cell phone, it can receive information from the cell phone, and can show a person communicating to the dash camera via cell phone. Through his general experience he was aware that dash cameras also contain audio. He noted that they often come up in collisions, and it is not uncommon for the people involved in collisions to say something “right off the bat” which is captured on the dash camera audio.

[13] DC Boward acknowledged that he knew the authorizing justice had removed the reference to a surveillance system from the search warrant for Mr. Rajaratnam’s residence, on the basis that it was speculative to believe he had one. He duly removed reference to home surveillance systems from Appendix A-1 to the warrant for the residence which was sent to the executing officers. DC Boward believed that a dash camera was different from a home surveillance system, but struggled to explain why when he was pressed in cross-examination. DC Boward resisted the suggestion that paragraphs 24, 66 and 67 of the ITO were specific to cell phones, explaining that these paragraphs also included reference to computers and electronic devices, and the dash camera was both. However, he acknowledged that when drafting the ITO and other appendices, he did not anticipate having access to a “real live conversation”, and nothing in the ITO or appendices contemplates this. In particular, there were no safeguards in the event a privileged communication was captured, such as a call to a lawyer. Nor were there any time or date limitations on checking data.

[14] DC Boward received the dash camera on August 23, 2022, from DC Battaglia, who picked it up from FIS and delivered it to homicide. DC Boward and DC Tang did a quick review of the device and the contents of the memory card, ascertaining the time difference in the device, and that the memory card contained relevant information. Once they figured out the time difference, they were able to zero in on the time of altercation. DC Boward could hear voices and recognized Anisa Mohamed, as he had listened to and summarized the statement she gave to police. He knew witnesses had indicated that she left the scene of the altercation with her daughter and Mr. Rajaratnam, immediately after it occurred, in Mr. Rajaratnam’s vehicle, driven by him. While DC Boward believed the SW authorized him to examine the contents of the hard drive, he acknowledged that the conversation with Mr. Rajaratnam and Anisa Mohamed was private. DC Boward turned the memory card over to DC Tang to examine more carefully and prepare a report of its relevant contents.

[15] On August 24, 2022, DC Boward filed a Report to Justice in relation to the items seized during the execution of the search warrants, including the “Dash Camera with Micro SD Card 9299-8”. He noted the authority for the seizure of the dash camera was “mentioned in the warrant”.

[16] DC Tang became involved in the investigation after the search warrant was executed. He understood from DC Boward that the dash camera was seized during the execution of the search warrant, and it, together with its memory card, were covered by the search warrant. DC Tang began to examine the memory card on August 23, together with DC Boward, and finished on August 26, 2022, by himself. He began by examining the files and figuring out the naming convention used by the system. Once he figured this out, together with the corrected time, he was able to zero in on the time frame of the offence, including immediately before and after. He produced a supplementary report of what he observed, together with screen shots of the video and a description, and a summary of the audio. The video and audio of this time period was played in court and made exhibit 5A (DC Tang’s supplementary report was made exhibit 5B). It included private conversations between Mr. Rajaratnam and Ms. Mohamed, together with some telephone conversations, and excerpts of conversations between Mr. Rajaratnam and his brother outside the vehicle.

[17] DC Tang was not given any parameters for reviewing the memory card. Nor were any restrictions placed on his review. DC Tang testified about his process during the Charter application (as summarized above). He was not uncomfortable listening to Mr. Rajaratnam’s private conversations as he was confident that the dash camera and its memory card was an electronic device covered by the search warrant.

Issues

[18] There is no issue that the search warrants for Mr. Rajaratnam’s residence and vehicle were properly granted, or that Mr. Rajaratnam’s vehicle was properly searched pursuant to the warrant.

[19] There is no issue that the police had a lawful basis to seize the dash camera in the course of executing the search warrant on Mr. Rajaratnam’s vehicle. Defence counsel does not agree that the authority to do this came from the search warrant, but does not contest that police could have seized the dash camera pursuant to s.489 of the Criminal Code. Indeed, she concedes that they would have been negligent not to seize it. Defence counsel notes, however, that police did not rely on s.489 for the seizure, but on the search warrant. Nonetheless, the seizure is not the focus of her concern; rather it is the search.

[20] There is no issue that Mr. Rajaratnam had a reasonable expectation of privacy (REP) in the contents of the dash camera memory card, both the video and audio, and police required prior judicial authorization to search it.

[21] The issue in this case is very focused: did the search warrant for Mr. Rajaratnam’s vehicle authorize the search of the dash camera and its memory card? If not, should the evidence it contains be excluded under s.24(2) of the Charter?

Law

[22] There appears to be a dearth of authority dealing with dash cameras and their memory cards. Counsel cited no case on point. Nor could I find one. R. v. Greenberg, 2024 ONCJ 481 deals with whether a search warrant for a vehicle which had a dash camera should have been granted, but there does not appear to have been any issue that the dash camera and memory card were covered by the search warrant. Greenberg notes that the Crown was not relying on any audio from the dash camera, and the information on the video lay relatively far from the core of what is protected by s.8. In contrast, there is no issue that the audio in the memory card seized in this case contains intensely private information lying at the core of informational privacy.

[23] Nor can I find first principles directly on point. It is well-established that the constitutional standard of prior judicial authorization requires that a search warrant adequately describe the offence, the place to be searched, and the property to be searched for. What this means in practical terms is fact and context specific. Nonetheless, recent case law regarding the adequacy of the description of the place to be searched appears tangentially helpful. While what amounts to an adequate description of the place to be searched depends on the circumstances of the case, the description must be apparent on the face of the warrant. As Justice Miller explained at para. 59 of R. v. Ting, 2016 ONCA 57:

It is not enough, however, for the ITO to accurately describe the premises to be searched. For a search warrant to fulfill its functions, those who are relying on it — including police officers who are executing it and third parties whose cooperation is sought — must not be required to look past the warrant to the ITO. The warrant itself must be clear and limited on its face with respect to the location to be searched: see Marquis Video Corp. v. R. (1985), 21 C.C.C. (3d) 503 (Ont. C.A.), at 513; and R. v. Parent (1989), 47 C.C.C. (3d) 385 (Y.T. C.A.), at 396-97.

[24] The issue in this case is whether the dash camera and memory card police seized is covered by the search warrant. Resolving this issue involves me considering the nature of the dash camera and memory card that were seized, and the nature of what the search warrant authorized. This task feels akin to statutory interpretation but with fewer guidelines for exactly how it should be done.

Analysis: Did the Search Warrant for the Car Cover the Dash Camera and its Memory Card?

What is a Dash Camera?

[25] What emerged from the evidence on this application is that dash cameras have varying technological capabilities with their central feature being that they serve as a surveillance system in relation to the vehicle they are installed in. They have video recording capabilities, which can include, the front, back and inside of the vehicle. Some also record audio, including both inside and outside the vehicle. The video and audio recordings in this case were stored on a memory card.

[26] As noted above, DC Boward described dash cameras as having a computer, a chip and a motherboard, and as capable of connecting to or communicating with a cell phone. DC Wyard, testified that her personal dash camera connects to wifi. Some can connect to satellites and provide GPS.

[27] The dash camera at issue in this case was capable of recording both video and audio. It contained a memory card that stored these recordings. It recorded video of the view out of the windscreen above the dashboard of the car – essentially showing what someone sitting in the front of a car would see if they were looking out of the car, directly ahead of them. It also recorded audio inside the car and captured audio from the immediate vicinity of the car. There is no evidence that this particular dash camera connected to the internet or could access or be accessed by a cell phone. Indeed, the user manual suggests it could not. The user manual also suggests that the dash camera could provide GPS tracking if an antennae was purchased and installed. There is no evidence that the dash camera in this case had this GPS tracking capability. Indeed, defence counsel submits there was no antennae installed on the Highlander.

Did Mr. Rajaratnam Have a REP in the Video and Audio Recordings Saved on the Dash Camera’s Memory Card?

[28] There was no issue that Mr. Rajaratnam had a REP in the video and audio recordings saved on the dash camera’s memory card. Nonetheless I believe it is important to consider this question, as the REP in the contents of the recordings varies.

[29] The privacy interest engaged in this case was informational privacy, which engages the concepts of privacy as secrecy, control, and anonymity. Privacy as secrecy means the individual can keep confidential information that they wish to remain private; privacy as control means the individual can control “when, how and to what extent” information about them is shared; and privacy as anonymity involves the individual’s ability to remain anonymous while acting publicly: R. v. El-Azrak, 2023 ONCA 440 at para. 30; R. v. Spencer, 2014 SCC 43.

[30] I believe that Mr. Rajaratnam had a low REP in the video recordings of the view out of the windscreen of his vehicle. While this information shows where a driver chose to drive, and how, this information is visible to other users of the road. It relates to the highly regulated activity of driving. It reveals little about the driver’s biological core, lifestyle or personal choices. But not nothing, as it does show where the driver chose to go, when and how. In this sense it is distinct from a vehicle’s built in electronic data recorder (EDR) which reveals nothing about the driver’s biological core, lifestyle or personal choices: R. v. Attard, 2024 ONCA 616 at para.65. Further, the video has the potential to reveal travel patterns, especially if a period of time is stored, including where someone lives, works and otherwise goes. It also has the potential to capture views of private property, including closed parking garages. In sum, Mr. Rajaratnam’s REP in the video recordings in the dash camera memory card generally lies toward the periphery of his protected informational privacy, but in some cases may include information closer to the core of protected privacy.

[31] I believe that Mr. Rajaratnam had a very high REP in the audio recordings of his conversations inside the vehicle. These conversations could be, and were in this case, intensely private. They include information touching on his biological core, lifestyle and personal choices. I agree with defence counsel that the audio recordings in this case sound very much like the candid and unguarded conversations sometimes captured by an audio probe installed pursuant to a wiretap authorization. In sum, Mr. Rajaratnam’s REP in the audio recordings in the camera memory card lies at the core of his protected informational privacy.

Was the Dash Camera and its Memory Card an “Electronic Device Capable of Communication” and Therefore Included in the Things to be Searched Authorized by the Search Warrant?

[32] I do not believe the search warrant in this case was sufficiently clear and specific to authorize the seizure and search of the dash camera and its memory card.

[33] Police relied on the authority in Appendix A-2 to search for “f. Any cellular or electronic device capable of communication”, and examine it for a variety of things, including “g) Digital media content, such as writings, pictures, videos, or sound recordings.”

[34] As noted, I believe that the dash camera was in essence a surveillance system. It is not clear to me that a surveillance system is an “electronic device capable of communication”. I believe it must be clear that an item seized and searched falls within the scope of what a justice has authorized in order to meet the constitutional standard of prior judicial authorization. Simply put, a plain reading of the warrant does not make it clear that the officer executing a warrant could search for and seize a dash camera, much less review its contents.

[35] In addition, the evidence on the application suggests that the dash camera in this case was not capable of communication. It did not appear to connect to the internet, or a cell phone, nor was there evidence that there was an antenna on the car that could enable the dash camera to connect to a satellite.

[36] Nor do I believe that the Crown can reach into the contents of the ITO, and the broad definition of communication in para.67.d.ii, in order to bring the dash camera under the authority of the search warrant. The scope of the search power must be evident from Appendix A: R. v. Ting, at paras. 49-50. This is necessary to meet the constitutional standard of judicial prior authorization. Officers are not, and cannot be, required to consider fine detail contained within the ITO when deciding what they can and cannot seize and search.

[37] In addition, I agree with defence counsel that if the broad definition of communication in para.67.d.ii. set out the parameters of what could be seized and searched in this case, there would have been no need for the affiant to separately list the home surveillance system in Appendix A to the search warrant for Mr. Rajaratnam’s residence. Indeed, almost anything would be covered.

[38] Notwithstanding my conclusion that the seizure of the dash camera and memory card was not authorized by the search warrant, I am satisfied that it was authorized by s.489(1)(c) of the Criminal Code. I accept DC Wyard’s evidence that she believed the dash camera was covered under the search warrant for the vehicle, but even if it wasn’t, she would have seized it under s.489(1)(c) of the Criminal Code. She explained that she believed the dash camera would show the vehicle at the scene of the offence, where it went from there, and that it would potentially contain audio recordings. This belief was objectively reasonable. It follows that the seizure of the dash camera and its memory card was lawful.

[39] While the police were in lawful possession of the dash camera, they needed prior judicial authorization to search the contents of its memory card. The search warrant did not provide it. Nor did they obtain it. As a result, the search of the memory card was warrantless. It violated Mr. Rajaratnam’s s.8 right against unreasonable search and seizure.

[40] In addition, given the potentially very high REP in any audio recording, I believe some parameters were required around the manner of search in order for it to be reasonable. At a minimum, any police review of the memory card had to be carefully focused on the offence listed in Appendix B (the allegation of second degree murder in this case): R. v. Vu, 2013 SCC 60 at paras.25, 53-62.

Should the Contents of the Memory Card be Excluded from the Trial Under s.24(2)?

[41] A trial judge must thoroughly evaluate each branch of the Grant test, including the third branch, bearing in mind the full context, and then do a final global assessment. It not an all or nothing assessment, resulting in a score of 0 or 1 and a quick addition exercise at the end. Rather it is a careful contextual inquiry at each step, and a cumulative balancing at the end: R. v. Grant, 2009 SCC 32, at para. 71; R. v. Tim, 2022 SCC 12; R. v. Beaver, 2022 SCC 54; R. v. McColman, 2023 SCC 8.

The Seriousness of the Charter-Infringing State Conduct

[42] The state conduct must be carefully assessed and situated along the continuum between inadvertent, technical, minor, understandable mistakes, through negligence, to reckless disregard of Charter rights, to deliberate, willful violations, finally to a pattern of Charter-infringing conduct at the most serious end. The closer to the latter, serious end, the more important it is for the Court to dissociate itself from the conduct, not to punish police but to preserve confidence in the rule of law and avoid bringing the administration of justice into disrepute: R. v. Grant at paras.72-74; R. v. Tim, at para.82; R. v. Kitaitchik, 166 C.C.C. 3d 14 at para.14.

[43] Defence counsel submitted that a dash camera is simply a security system for a car, equivalent to a security system for a residence. The JP’s refusal to include the home security system in the items to be searched for in the home should have put DC Boward on notice that he did not have authority to search the dash camera memory card.

[44] I do not agree. The reason the authorizing justice refused the request for the home security system was that there was no basis to believe Mr. Rajaratnam had one in his home. She elaborated that “The use of a surveillance system is not so common as to be able to presume everyone has one (unlike a cellular phone).” Arguably this logic did not apply to a dash camera. In addition, I do not accept the premise that a dash camera is equivalent to a home security system. The manual for the dash camera in this case, for example, shows that if the user installed an antenna on the vehicle, presumably to connect to a satellite, the dash camera could provide live on-going GPS information.

[45] The essential issue is the honesty and reasonableness of DC Boward’s belief that he could search the dash camera pursuant to the search warrant he had. Beginning with honesty, I accept the evidence of all of the officers that they believed the dash camera and its memory card were captured under the warrant.

[46] DC Wyard, who seized the dash camera and its memory card (the memory card was inside the dash camera at the time of the seizure) believed that both were included in Appendix A-2. She explained that she knew from personal experience that dash cameras can connect to cell phones and wifi and thus believed the dash camera is Mr. Rajaratnam’s car fell within “f” of Appendix A-2, permitting the seizure and search of an “electronic device capable of communication”.

[47] DC Boward, the affiant who drafted and swore to the search warrant and its appendices, including appendix C, the ITO, shared DC Wyard’s belief that the dash camera and its memory card fell within the description “electronic device capable of communication”. He explained that he understood dash cameras to be computers, and include chips, memory boards and the capacity to connect to the internet.

[48] DC Tang was not involved in the drafting or execution of the search warrant, and relied on DC Boward in concluding that the memory card was covered by the search warrant.

[49] I accept the evidence of all three officers that they believed that the dash camera and its memory card was an “electronic device capable of communication.” I do not accept the suggestion in cross-examination that DC Boward made up his reasoning after the fact to justify what happened. This suggestion is belied by the timing of the Report to Justice, in which DC Boward noted the authority to seize and search the dash camera and its memory card was provided by the search warrant. The Report was filed on August 24, 2022, a day after the memory card was first opened, and before its review was completed on August 26, 2022.

[50] In sum, I am satisfied that all three officers subjectively believed that the search warrant permitted them to seize the dash camera and search its memory card. They all acted in good faith.

[51] Turning to the reasonableness of their belief, I do not believe it was unreasonable, or negligent. There is a dearth of case law dealing with dash cameras and what are, and what they store. Some may actually fit within the definition of “electronic devices capable of communication”. Indeed, defence counsel, at para. 45 of her factum, referred to the dash camera police seized in this case as a “mini computer”. Even with the benefit of thoughtful submissions by excellent counsel, and the luxury of time for research and contemplation, I puzzled over whether the dash camera and memory card in this case were captured by the phrase “electronic device capable of communication” and thus the search warrant.

[52] Nor do I find that police were cavalier or lazy in a grey area where they should have been cautious and careful: R. v. Attard, at para.80; R. v. Telus, 2013 SCC 16 at para.80. Rather I find that they made an understandable mistake about the nature of the dash camera: R. v. Tim, at para.84.

[53] While it would have been preferable for the police to take contemporaneous notes of the manner of search, DC Boward and DC Tang were able to testify about what they did, when, why, and how long it took. Their process was reasonable and minimally intrusive. They ascertained the time difference in the device, how files were named, and then zeroed in on the time frame of the offence. The ascertained who was speaking during the recorded conversations. DC Boward recognized Anisa Mohamed’s voice from listening to her interview. He also knew that she left with Mr. Rajaratnam in his vehicle after the offence. DC Boward was able to confirm that she was the person Mr. Rajaratnam was speaking to in the recording. This recording identified Mr. Rajaratnam’s brother as the other person Mr. Rajaratnam spoke to. I note that courts have recognized the complexity of digital devices, together with the rapid and constant development of technology, and have consistently declined to impose search protocols in relation to digital devices: R. v. Vu, at paras. 25, 37-38, 53-62; R. v Millard and Smich, 2016 ONSC 348; R. v. John, 2018 ONCA 702; R. v. Jonat, 2019 ONSC 415; R. v Otto, 2019 ONSC 2514; R. v Javer, 2024 ONCJ 293; and R. v. Jattori Williams, 2023 ONSC 4577.

[54] While I agree with the defence that police could have searched the memory card in a constitutional fashion (by seeking explicit authorization as I have explained above), I am satisfied that their failure to do so flowed from an understandable mistake. As such, I do not believe their failure to get a separate warrant exacerbates the breach. Indeed, I do not believe there is any reason to depart from general principle that the fact that police sought a search warrant, and believed they were searching pursuant to it, shows good faith: R. v. Rocha, 2012 ONCA 707 at paras.28-38.

[55] In all the circumstances, I situate the breach toward the less serious end of the culpability scale.

The Impact of the Breach on the Accused’s Charter-Protected Interests

[56] As with the first Grant line of inquiry, the court must situate the impact of the breach 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”: Tim, para.90.

[57] As noted, there is no issue that Mr. Rajaratnam had a reasonable expectation of privacy in the contents of the memory card of his dash camera. The privacy interest at stake was informational, which, as noted, encompasses secrecy, control and anonymity: R. v. Spencer, at paras.37-43; R. v. El-Azrak, at para.30. Mr. Rajaratnam’s privacy interest in the video contents of the memory card varied. It was low regarding where the vehicle drove, when, and how; it was higher regarding Mr. Rajaratnam’s movements in the parking lot before the altercation, and his meeting with his brother in an empty parking lot afterwards. Mr. Rajaratnam’s privacy interest in the audio contents of the memory card was extremely high. The audio captured private conversations between Mr. Rajaratnam and Ms. Mohamed about the altercation, and portions of a private conversation between Mr. Rajaratnam and his brother about the altercation.

[58] The impact of what would otherwise be an extremely serious intrusion into the core of Mr. Rajaratnam’s right to informational privacy is substantially mitigated by two circumstances. First, Mr. Rajaratnam made the audio and video recordings. The state played no role in their creation or preservation. Second, and more importantly, the recordings were inevitably discoverable. This is not speculation or a mere theoretical possibility, but a certainty. There is no issue that the state properly seized the dash camera and its recording card. Further, abundant reasonable grounds to search its contents existed. Indeed, police would have been negligent not to search its contents. The vehicle was parked at the scene of the altercation, and the dash camera captured portions of what Mr. Rajaratnam did and said immediately before and after the altercation. Indeed, had he been parked a few feet over, the dash camera would have captured the actual altercation.

[59] Further the existing warrant contemplated a search of information equally as private as the audio recording on the dash camera. The warrant explicitly authorized a search of Mr. Rajaratnam’s phone, which could include intensely private information lying at the core of informational privacy. Indeed, Mr. Rajaratnam’s cell phone could have included a voice memo, or unwitting recording of the very conversation picked up on the dash camera (such as occurred in R. v. Gill, 2024 BCCA 63).

[60] Notwithstanding the intensely private nature of the audio recordings on the memory card, I am satisfied that they were inevitably discoverable. This substantially mitigates the impact of the breach: R. v. Sabiston, 2024 SCC 33, upholding the dissent 2023 SKCA 105 at paras.119-120; R. v. Tim, 2022 SCC 12 at para.94.

[61] As a result, I would situate the impact on Mr. Rajaratnam toward the less serious end of the spectrum.

Society’s Interest in the Adjudication of the Case on the Merits

[62] 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”. Reliable evidence critical to the Crown’s case will generally pull toward inclusion. The seriousness of the offence cuts both ways, and must be considered in the context of the reliability of the evidence and its importance to the Crown’s case: R. v. Tim, at para. 96.

[63] The memory card includes audible recordings of comments by Mr. Rajaratnam about his altercation with Mr. Tyrell shortly after it occurred. In particular, while driving, Mr. Rajaratnam discusses the altercation with Ms. Mohamed, including what the building surveillance video could capture, what happened to Mr. Tyrell, what police knew and whether they were looking for Mr. Rajaratnam.

[64] In addition, Mr. Rajaratnam arranged to meet his brother in an empty parking lot close to the brother’s home. The audio captures excerpts of their conversation, including the following, which appears to be a description of the altercation from Mr. Rajaratnam’s perspective:

That’s a wrap. You know what I mean. That’s a wrap. Gangs this, that. Everything. Fuck. Yeah, he swung at me two times, but didn’t touch me. And then I got up ‘cause my shoe came off the first time he swung at me. But then what I did when I go over there I went over and I was like “So what’s up bro”. He swear, he was like I saw your bad son. I was like “Yeah I’m bad. And then what” There was some [unintelligible], like some flower someone had pitched there. I took the flowers and I’m going to bring some flowers at your funeral time, like, threw some flowers at him. And he got up and swung. Miss me, Miss me the second time, my shoe came off. I grabbed it, pulled it on. As soon as my shoe got on, I got up. Tried to stumble him. Swing at him, he started stumbling back hard. Fucking fell over this thing, fell over a bike. I’m like “you’re running eh?”, I was like “yeah”. Remember that orange bike that sites there too? He fell over the bike. That’s what I thought. But they’re saying [Sathiskumar then says something in another language], but you know. I think, if they had me for sure, they would have said “Oh, the suspect is this guy. Blah blah blah blah. But they don’t.” [video file ends]

[65] The focus of Mr. Rajaratnam’s discussion with Ms. Mohamed appears to be what happened to Mr. Tyrell, what police knew, in particular whether they could identify Mr. Rajaratnam as involved, and what they should do next. The significance of this audio is considerably diminished by the fact that identification is now admitted (i.e. Mr. Rajaratnam admits he was involved in the altercation with Mr. Tyrell). Further, there is no model or norm for what someone in Mr. Rajaratnam’s position can be expected to say or do. For example, I am not convinced that the fact that Mr. Rajaratnam does not say he was attacked, or feared for his life, is significant. Ultimately this will be for the trial judge to manage, and the jury to decide. I mention it now because I believe it is a complication that diminishes the evidentiary value of this portion of the audio recording.

[66] The focus of Mr. Rajaratnam’s discussion with his brother appears to be explaining what happened. Unlike Ms. Mohamed, the brother was not present for the altercation. The reliability of these statements is somewhat diminished by the fact that we do not have the full conversation, only excerpts. However, I believe the excerpt quoted above is sufficiently full, certainly when considered in the context in which it is said, that a jury could conclude it is a description of what happened during the altercation from Mr. Rajaratnam’s perspective, given shortly after. This is highly material to the expected defences of provocation and self-defence, and the truth-seeking function of the trial.

[67] When I assess all three lines cumulatively, and balance the assessment I made of each line of inquiry, I am not satisfied that the admission of the evidence on the memory card would bring the administration of justice into disrepute: Grant, at paras.67-70; Tim, at para.75; McColman.

[68] The relevant audio and video evidence on the memory card is admissible at trial.

G. ROBERTS, J. Released: December 10, 2024