Court File and Parties
Court File No.: CR-23-0000038-0000 Date: 2024-11-04 Ontario Superior Court of Justice
Between: His Majesty The King And: Aysar Younes, Applicant
Counsel: Michael Lunski and Monica Rodrigues, for the Crown R. Craig Bottomley and Alison Shields, for the Applicant
Heard: August 19 and 20, 2024
Ruling #1 - Charter Application
Muszynski J.
Overview
[1] On October 3, 2021, at approximately 12:25 p.m., a tragic motor vehicle collision occurred on Highway 2 in Belleville involving a westbound GMC Yukon, driven by Aysar Younes, and an eastbound Nissan Versa. The two occupants of the Nissan, Rebecca Beatty and Anastasia Collins, were pronounced dead at the scene. Mr. Younes was transported to the hospital by paramedics and treated for minor injuries.
[2] After interviewing witnesses and making observations at the scene of the collision, the police quickly established the cause of the collision—Mr. Younes’ vehicle crossed the centre lines into the oncoming path of the Nissan.
[3] The police then began an investigation as to why Mr. Younes’ westbound vehicle ended up in the eastbound lane. Was there an innocent explanation? Environmental factors? A mechanical failure? Did Mr. Younes have a medical event? Or was there an element of criminality? Was Mr. Younes impaired by drugs or alcohol, or distracted in some way?
[4] During their investigation, the police seized the airbag control modules of both vehicles and downloaded the crash data. The police then obtained judicial authorizations for Mr. Younes’ medical records and blood from the day of the collision and to search his cell phone.
[5] Several weeks later, Mr. Younes was charged with two counts of operating a conveyance causing death while impaired/over 80 [1] and two counts of operating a conveyance in a manner that was dangerous causing death. [2]
[6] A jury trial is scheduled to commence on January 20, 2025.
[7] Mr. Younes brings this application to exclude evidence at trial pursuant to s. 24(2) of the [Charter] [3] on the basis that his s. 8 Charter right to be secure against unreasonable search and seizure was infringed. Specifically, the application seeks to exclude:
a) Crash data obtained from the airbag control module (“ACM”) in the GMC Mr. Younes drove.
b) Mr. Younes’ medical records from the day of the collision.
c) Toxicology reports analyzing Mr. Younes’ blood from the day of the collision, seized.
d) Data downloaded from Mr. Younes’ cell phone.
Agreements / Admissions
[8] Mr. Younes’ Charter application was heard alongside various pre-trial motions brought by the Crown on issues of voluntariness, other discreditable conduct, and expert evidence. The issues are, to some extent, tethered to one another. My rulings on the Crown motions will be released separately as the outcome of the Crown motions are impacted by my rulings on the Charter application.
[9] The parties agreed that this application could proceed on a written record. The complete transcripts of the preliminary hearing were filed as an exhibit on consent. Further, it was agreed that the collision reconstruction report of P/C Prent, the supplementary report of P/C Prent, the ambulance call report from October 3, 2021, the emergency department record from October 3, 2021, the toxicology reports of Ms. Shephard, and the mobile device report of P/C Clow would be admitted as exhibits to the hearing on consent.
Issues
I. Was there a s. 8 breach with respect to the warrantless collection of the ACM data from the GMC? If so, should the ACM data be excluded pursuant to s. 24(2)?
II. Are the production order and search warrant for Mr. Younes’ medical records and blood vials invalid? If so, should they be excluded pursuant to s. 24(2)?
III. Is the search warrant for Mr. Younes’ cell phone invalid? If so, should the evidence obtained in the cell phone search be excluded pursuant to s. 24(2)?
I. ACM Data
[10] When investigating car collisions, crash data retrieval software can be used to access information contained in event data recorders in the vehicles involved in the collisions.
[11] In this case, P/C Prent, a collision reconstructionist with the Ontario Provincial Police (“OPP”), removed the ACMs from both the GMC driven by Mr. Younes and the Nissan and extracted data pertaining to the crash. He did not have a warrant but relied on s. 489(2) of the [CCC] [1] to seize the vehicles, remove the ACMs, and download their data.
[12] Section 489(2)(c) of the [CCC] [1] permits a peace officer to seize any thing that the officer believes on reasonable grounds “will afford evidence in respect of an offence” without a warrant.
[13] The ACM data revealed:
a) The Nissan was travelling at a speed of 71 km/h at five seconds before the collision.
b) The driver of the Nissan activated the brake switch and steered to the right at one second before the collision.
c) The Nissan’s vehicle speed was 54 km/h at the time of the collision.
d) The GMC was travelling at a speed of 98 km/h at 2.5 seconds before the collision.
e) The GMC brake switch status was “off” throughout the pre-crash data.
f) The GMC’s vehicle speed was 99 km/hr at 0.5 seconds before the collision.
Section 8 Analysis
[14] Mr. Younes submits that his s. 8 Charter rights were infringed when P/C Prent unlawfully entered his vehicle, seized the ACM, and downloaded the data without a warrant.
[15] Mr. Younes intended to raise two arguments in support his position: (i) that P/C Prent lacked authority to enter his vehicle, seize the ACM, and download the data pursuant to s. 489(2)(c); and (ii) that he had a reasonable expectation of privacy over the ACM data.
[16] His plan to raise the second argument was thwarted when the Court of Appeal for Ontario released [R. v. Attard] [4] on August 16, 2024. Mr. Younes accepts that Attard is binding authority that there is no reasonable expectation of privacy in relation to ACM data from a lawfully seized vehicle.
[17] Mr. Younes continues to maintain that the GMC was not lawfully seized in the first place. He submits that P/C Prent did not have authorization to seize the vehicle under s. 489(2)(c) of the [CCC] [1] because there were not reasonable grounds to believe the ACM data would afford evidence in respect of an offence . [Emphasis added.] The crux of Mr. Younes’ submission is that, when the car was entered, the ACM was seized, and the data was downloaded, there was no indication that an offence had taken place.
[18] P/C Prent makes the following comments in his reports about the seizure of the ACM data and his views on his authority to do so:
a) “During my scene investigation, I determined that the involved Nissan and GMC vehicles were equipped with an Airbag Control Module (ACM) that potentially contained crash data relevant to the collision investigation.”
b) “The collision scene was closed to through traffic prior to my arrival and deemed to be a crime scene…. Everything within the scene was seized, or frozen, for investigative purposes. The purpose of my investigation was to determine if any criminal driving related offences had been committed on the part of one, or both, involved drivers.”
c) “There was no indication that a driver had been arrested and charged between the hours of 12:25 p.m. and 2:15 p.m. I proceeded to investigate the scene with impartiality and fairness to the involved drivers, having regard to other possible explanations of why one vehicle ended up in the opposing lanes of traffic.”
d) “I removed the airbag control modules from both vehicles, without prejudice to any of the involved drivers, hoping to get more information that would assist me in trying to determine the circumstances of the collision.”
e) “In determining if a criminal driving offence had been committed by either vehicle driver, I set about in removing airbag control modules that more than likely contained information that would provide additional details in determining how the vehicles operated prior to the collision.”
f) “I considered the airbag control module data of value in understanding why a westbound vehicle crossed the dividing line on the highway and collided with an eastbound vehicle. During my scene investigation there had been no discussion about finding fault with either involved driver. I did not know at the time of my investigation if there was any medical distress, driver fatigue, driver distraction, or collision avoidance that would explain why the westbound vehicle encroached into the eastbound lanes.”
g) “The reason for removing the airbag control modules was to make a conclusion of what caused the collision. I had no idea where the detachment investigation was leading while I conducted my investigation on 3 October into 4 October 2021. It was my intent to conduct a full, frank, and fair investigation that collected all the available information from all sources. The airbag control module data was objective information that could assist, or refute, an involved driver’s explanation of the collision event.”
[19] Since there was no warrant to enter the GMC, seize the ACM, and download the data, the Crown bears the onus of demonstrating that these police actions were reasonable. In order to do so, the Crown must show that P/C Prent had reasonable grounds to believe that the ACM data would afford evidence of an offence when it was seized.
[20] Reasonable and probable grounds is a constitutionally significant precondition for most state intrusions upon a reasonable expectation of privacy. This standard of confidence, although greater than speculation or conjecture, is not considered equivalent to the more demanding standards of proof beyond a reasonable doubt or to a balance of probabilities. [5]
[21] Writing on this very issue in Attard, the Court of Appeal for Ontario confirmed:
Reasonable grounds to believe must be founded in objective facts: [R. v. Chehill, 2013 SCC 49], at para 27. The reasonableness of a police officer’s belief must be determined having regard to the objective and ascertainable facts as seen through the eyes of a reasonable person with the same knowledge, training, and experience as the police officer: Chow, at [Attard, para. 47]. [6]
[22] P/C Prent is an experienced, qualified collision reconstructionist. When P/C Prent arrived at the collision location it was being treated as a crime scene. The objective of his investigation was to determine whether a criminal offence had occurred. After making his own observations, P/C Prent concluded that the head-on collision occurred when the GMC driven by Mr. Younes crossed over the centre lines and into the path of travel of the Nissan. He did not know why this occurred but did know that both women in the Nissan were killed. P/C Prent’s expertise is a factor I consider when determining whether reasonable grounds existed.
[23] I accept that P/C Prent was investigating a driving offence when he made the decision to enter the vehicles, seize the ACMs, and download the data, which he knew would provide evidence in relation to the investigation into whether a driving offence had taken place. Reasonable grounds can be present alongside other exculpatory possibilities. [7] I find that P/C Prent’s entry into the GMC, the seizure of the ACM, and downloading of the data was lawful under the authority of s. 489(2)(c) of the [CCC] [1] and therefore did not infringe Mr. Younes’ s. 8 rights.
Section 24(2) Analysis
[24] If I am incorrect, and the ACM data was obtained unlawfully, I would nonetheless decline to exclude the evidence under s. 24(2) of the [Charter] [3] for the reasons that follow.
[25] To determine whether evidence should be excluded following a Charter breach, the Supreme Court of Canada in [R. v. Grant] [8], set out the following factors must be considered: (i) the seriousness of the conduct; (ii) the impact of the breach on the accused’s Charter protected interests; and (iii) society’s interest in the adjudication of the case on its merits.
[26] Having regard to the Grant factors, I would find:
a) The breach was not overly serious. There is no evidence that P/C Prent was acting in bad faith when he entered the GMC, seized the ACM, and downloaded the data. I find it to be significant that P/C Prent obtained the ACM data for both vehicles. I accept that P/C Prent believed that he had authority to seize the ACM data while investigating a fatal collision given that the caselaw was unsettled on this point at the material time. Further, P/C Prent did not attempt to use s. 489(2)(c) of the [CCC] [1] as a licence to search the GMC and its contents beyond seizing the ACM. This is supported by the fact that the police later obtained judicial authorizations to search Mr. Younes’ cell phone, which was found in his vehicle, and to conduct a search of the vehicle for controlled substances.
b) The impact of the breach is minor. There is no reasonable expectation of privacy over the ACM data, which was the sole focus of the police actions at the time.
c) There is significant societal interest in having this case, with two fatalities, adjudicated on its merits. The ACM data provides objective and highly reliable information about how this fatal collision occurred. [9]
[27] When balanced, the Grant factors favour inclusion of the evidence extracted from the GMC’s ACM.
II. Validity of Judicial Authorizations - Medical Records and Blood
[28] Following the collision, Mr. Younes was taken from the scene to Kingston General Hospital (“KGH”) by ambulance where he was treated for his minor injuries by a physician. During his treatment at KGH, Mr. Younes’ blood was drawn and preserved by hospital staff.
Informations to Obtain (“ITOs”)
[29] On October 20, 2021, D/C Nicolas Riopelle of the OPP swore an ITO seeking a production order for the “medical records associated to the medical treatment” of Mr. Younes on October 3, 2021, including any lab reports in relation to any blood / bodily samples obtained from Mr. Younes during his admission at KGH. On the same day, D/C Riopelle sworn an ITO seeking a warrant to seize the blood vials and send them to Centre of Forensic Sciences (“CFS”) for analysis.
[30] D/C Riopelle did not attend at the scene of the collision. He was assigned the task of obtaining the production order / warrant and preparing the ITOs after speaking to various officers involved in the investigation, reviewing the ACM data, and reading witness statements. The following background information is contained in each of the ITOs:
a) The collision occurred when the westbound GMC driven by Mr. Younes definitively crossed over the centre lines and into the path of travel of the eastbound Nissan.
b) The GMC was travelling at a speed of 100 km/hour immediately before impact.
c) The GMC did not brake prior to the impact.
d) The Nissan was travelling at 71 km/hr immediately before the impact.
e) The Nissan started to brake just before the impact.
f) There were no mechanical issues with either vehicle.
g) The posted speed limit at this location is 60 km/hr. There are double solid yellow lines separating the eastbound and westbound lanes.
h) The roadway at this location is flat with good line of sight visibility.
i) The roadway was wet. It had been slightly drizzling at the material time.
j) Witnesses observed the GMC drift over the centre lines leading them to believe that the driver of the GMC was distracted or had fallen asleep.
k) One of the witnesses indicated that while providing first aid to Mr. Younes at the scene he repeatedly asked, “what happened?”
l) Mr. Younes has a conviction from 2017 for holding a hand-held device while driving.
m) Mr. Younes was transported from the scene to KGH by ambulance following the collision.
n) KGH was contacted and confirmed that a blood sample was taken from Mr. Younes on October 3, 2021 and would be preserved.
[31] D/C Riopelle identifies the evidentiary value associated with the specific requests in the respective ITOs as follows:
a) Medical records – The notes of the medical staff will provide a record of independent observations of any medical concerns associated with Mr. Younes, including possible recent drug or alcohol consumption.
b) Blood vials – The blood vials will be seized and sent to CFS to test for alcohol or other intoxicating substances which will afford evidence that Mr. Younes was operating a conveyance above the legal limit as defined by the [Criminal Code of Canada] [1].
[32] On October 22, 2021, Justice of the Peace Dombrowski issued the production order for Mr. Younes’ medical records and the warrant for the vials of Mr. Younes’ blood.
Evidence Arising from Production Order / Search Warrant
[33] As a result of the production order, the police obtained the following information from the KGH medical records:
a) In the Ambulance Call Report from October 3, 2021, the paramedic noted that, in response to a question about whether he had used any drugs, Mr. Younes stated he had done some cocaine. When asked if had done any cocaine that day, Mr. Younes stated yes, but then stated he was not sure. The paramedic noted: “I question his ability to remember this as he cannot remember anything prior to and including the collision today, does not remember when he got up, what he ate today etc these were questions I had asked him prior to the drug/alcohol questions.”
b) In the KGH Emergency Room Department notes from October 3, 2021, the attending physician made a note that Mr. Younes reported drinking alcohol until 4:30 a.m. that morning and using cocaine. Mr. Younes reported that while driving his motor vehicle he was very tired and struggling to stay awake.
[34] After the search warrant for Mr. Younes’ blood vial was issued, the blood vials were seized and sent to CFS for analysis. Forensic Toxicologist, Cara Shepard, authored a report confirming that Mr. Younes had a blood alcohol concentration (“BAC”) of 110 mg/100 mL at the time of sample collection. Ms. Shepard further opined that Mr. Younes’ BAC at the time of the collision would have been in the range of 110 mg/100mL – 142 mg/100mL and that an individual with a BAC in that range would be impaired in their ability to operate a motor vehicle.
[35] Ms. Shepard authored a separate report explaining that Benzoylecgonine—an inactive breakdown product of cocaine—was also found in Mr. Younes’ blood in a concentration of 0.25 mg/L. This level of concentration, Ms. Shepard concludes, indicates prior administration of cocaine. At the preliminary hearing, Ms. Shepard explained that she could not express an opinion as to whether Mr. Younes was impaired by virtue of cocaine use at the time of the collision, nor could she pinpoint precisely when Mr. Younes would have used the cocaine, other than it would have been in the days leading up to the collision.
Section 8 Analysis
Production Order and Search Warrants, Generally
[36] The enabling authority for a production order and for a search warrant requires reasonable grounds that identified things “will afford evidence with respect to the commission of an offence” [10]. At the investigative stage, the police have limited information about the circumstances of an event and resort to the warrant process is necessarily legitimate, as described by the Supreme Court of Canada in [Canadian OxyChemicals Ltd v. Canada (Attorney General)] [11]:
a) discovery of “all materials which might shed light” on the circumstances of an event “which appears to constitute an offence” [12]
b) search for “anything relevant or rationally connected to the incident” and the “potential culpability” of an involved party [13] for evidence which “may [give] rise to criminal liability” [14]
c) with respect to investigation of “potential offences”, “ all relevant information and evidence should be located and preserved as soon as possible” [15]
d) at the investigative stage, the authorities have a duty to determine: “What happened? ... Is the conduct criminally culpable behaviour?” [16]
e) evidence “with respect to the commission of an offence” includes “inculpatory or exculpatory evidence” [17] and includes seeking evidence to rebut a defence. [18]
[37] Even in the absence of overwhelming evidence, it is reasonable for a police officer to utilize search warrants as investigative tools to gather evidence of potential criminality to the extent that is constitutionally possible regarding a suspected offence. [19]
Challenging Validity of the Production Order / Search Warrants
[38] A search or seizure of evidence pursuant to a warrant is presumed to be lawful unless proven otherwise. The onus is on the applicant to prove invalidity. The same principle applies to production orders.
[39] The Supreme Court of Canada in [R. v. Morelli] [20] confirmed that: “The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.” When considering this question, “the reviewing judge must take into account that authorizing justices may draw reasonable inferences from the evidence in the ITO; the informant need not underline the obvious.” [21]
[40] The offence contemplated in the ITOs was dangerous driving causing death. Mr. Younes submits that the police engaged in a fishing expedition when they sought his medical records without credible and reliable information to believe that he was impaired at the time of the collision. Mr. Younes relies on the fact that none of the witnesses that interacted with Mr. Younes detected an odour of alcohol, observed bloodshot eyes, or other indicia of impairment. On this basis, Mr. Younes submits that the production order and search warrant could not have issued, are therefore invalid, and the search and seizure of his highly private medical information violated his s. 8 Charter rights.
[41] I am not persuaded by Mr. Younes’ submission that, since the original offence contemplated in the ITOs was dangerous driving causing death as opposed to impaired driving causing death, the police were engaged in a fishing expedition. Impairment is relevant to the offence of dangerous driving. [22]
[42] Mr. Younes relies heavily on this court’s 2015 decision of [R. v. Stevens] [23] in support of his position that the police actions violated s. 8 of the [Charter] [3]. Stevens involved a fatal collision that occurred when Ms. Stevens’ vehicle collided with the rear of a farm tractor. There were no witnesses to the collision and no environmental or mechanical explanations for the collision. None of the investigating officers that interacted with Ms. Stevens, nor the paramedics that transported her to hospital, observed any signs of impairment or detected any odour of alcohol. After admitting that she had a few drinks, Ms. Stevens provided the police with a breath sample with a result of 77mg/100mL of blood. Given the result, Ms. Stevens was released from the police custody unconditionally. Eventually, the police sought a warrant for Ms. Stevens’ medical records and blood—which was granted. In the ITO, the investigating officer stated: “ Due to lack of evidence to the contrary, I the informant, feel that this collision occurred due to the driver of the Dodge pick-up truck operating the motor vehicle while her ability was impaired due to the consumption of a quantity of an alcohol beverage.”
[43] Ms. Stevens challenged the validity of the warrant. The application to exclude her medical records and toxicology reports was granted on the basis that there was insufficient information in the ITO to establish that the police had reasonable grounds to believe the records would provide evidence of the offences of impaired operation causing death or over 80 causing death. The presiding judge was particularly concerned about the over 80 count given the results of the breathalyzer. The Charter ruling states: “ if an unexplained collision or incident standing alone is sufficient without other discernible grounds, it would open a Pandora’s box by facilitating such intrusive warrants to be issued for these unexplained situations or for the lack of further investigation.” [24]
[44] This case is distinguishable from Stevens. Here, the following information was placed before the issuing justice:
a) Although witnesses did not report that Mr. Younes’ vehicle was travelling at an excessive speed, the ACM data confirmed that Mr. Younes’ vehicle was travelling at 100 km/hr at the time of the collision—40 km/hr over the speed limit;
b) There was no indication of mechanical failure of the GMC;
c) The roadway was straight, with no visibility concerns;
d) Mr. Younes’ vehicle veered over the double yellow centre lines into oncoming traffic without braking;
e) A witness reported Mr. Younes asking “what happened?” repeatedly at the scene;
f) A witness described the collision as if the driver of the GMC had fallen asleep or been distracted.
[45] Again, it is important to remember what is required to establish reasonable grounds. Mere suspicion or hypothesis cannot establish reasonable grounds, but reasonable grounds should not be equated with a requirement of proof beyond a reasonable doubt. [25]
[46] Impaired driving is a widespread problem. The Supreme Court of Canada has repeatedly confirmed that impaired driving related charges remain among the most common offences in the country. [26] The prevalence of impaired driving would be known to experienced officers as it is to our courts. Understanding this backdrop and lived experience of the investigating officers and the issuing justice is critical when considering whether reasonable grounds existed to believe that Mr. Younes’ medical records and blood would afford evidence of an offence, and whether the production order / warrant could have issued.
[47] After crossing the centre lines and colliding with the Nissan, Mr. Younes appeared, at least to one witness, to be disoriented and asked repeatedly “what happened?” While this confusion could be attributed to shock or a collision related injury, it is also fair to draw the inference that this disorientation was a symptom of impairment. Regardless, courts have accepted that outward physical manifestations of impairment will not universally be apparent. The absence of typical, observable indicators of impairment is not necessarily fatal to the existence of reasonable grounds. [27]
[48] Something that cannot be overlooked is the collision itself—Mr. Younes’ speeding vehicle crossed the centre lines of traffic in broad daylight and, without braking, struck the Nissan head-on. While “if the conduct of the accused was a slight departure from normal conduct, it would be unsafe to conclude, beyond a reasonable doubt, that his or her ability to drive was impaired by alcohol,” [28] a trier of fact [and a police officer considering reasonable grounds] “may be able to infer impairment from behaviour which is far outside the norm” [29]. Given the facts in this case, a marked departure from normal operation of a motor vehicle could reasonably be inferred by the police conducting the investigation.
[49] At the time when the judicial authorizations for Mr. Younes’ medical records and blood were sought, the police had information, which, in their experience reasonably pointed to substance impairment as one potential, but not necessarily the exclusive cause of the collision deserving to be ruled out or in as a contributing cause.
[50] I find that the ITOs for the production order and search warrant for Mr. Younes’ blood each disclosed reasonable grounds to believe an offence had taken place and, accordingly, the judicial authorizations are valid and there was no breach of s. 8 with respect Mr. Younes’ medical records from October 3, 2021 nor his blood and the corresponding toxicology reports.
Section 24(2) Analysis
[51] If I am incorrect in my conclusion that the judicial authorizations for Mr. Younes’ medical records and blood are valid, and there was no s. 8 violation, I would nonetheless decline Mr. Younes’ application to exclude the evidence.
[52] Applying the Grant factors, I would find:
a) The seriousness of the breach is blunted because the police obtained a warrant to obtain Mr. Younes’ medical records and blood vials. [30] There is no evidence of bad faith on the part of the police. In my view, this factor favours inclusion.
b) Medical records contain highly private information that are cloaked in confidentiality. This factor favours exclusion given the breach of informational privacy interest.
c) The final Grant factor, societal interest in adjudication of the charge of the merits, favours inclusion of the evidence. The evidence contained in the medical records, most notably the toxicology reports, are highly reliable. Without this evidence, the Crown’s case relating to the impaired operation causing death counts, would be gutted.
[53] Despite the significant impact on the informational privacy interest of Mr. Younes in a medical context, when the three Grant factors are weighed, I cannot say that inclusion of the evidence would bring the administration of justice into disrepute. I would therefore decline to exclude Mr. Younes’ medical records and toxicology reports analyzing Mr. Younes’ blood.
III. Validity of Warrant to Search Cell Phone
[54] At the scene of the collision, one of the investigating officers photographing the vehicles observed a cell phone in Mr. Younes’ vehicle. The cell phone was seized and lodged as evidence in the property vault at the Quinte West OPP detachment.
ITO
[55] On the same day that he swore the ITOs in relation to the medical records and blood vials, D/C Riopelle swore an ITO seeking a warrant to search Mr. Younes’ cell phone. The ITO contains identical background information about the collision as set out in the ITOs relating to the medical records and blood vials.
[56] The ITO contains the following specific information relevant to the request to search Mr. Younes’ cell phone: it was located inside Mr. Younes’ vehicle; Mr. Younes has a prior conviction for driving while holding a hand-held device; and that a witness to the collision described the drifting of the GMC over the centre lines as if the driver had fallen asleep or been distracted.
[57] D/C Riopelle proposed that the cell phone be searched for data, including: a timeline of activity through analysis of cell phone usage; multi-media content (including photographs and social media); geographic location information; communication between the accused and other suspects and victims; and passwords and ownership details, could provide a “more complete picture”.
[58] On October 22, 2021, Justice of the Peace Dombrowski authorized the search of Mr. Younes’ cell phone as requested in the ITO.
Evidence Arising from Search Warrant
[59] P/C Clow, a Digital Forensic Analyst with the OPP, was tasked with searching the cell phone found in Mr. Younes’ vehicle and preparing a report of relevant data. P/C Clow was instructed by the investigating officer to look at activity on the date of the collision (October 3, 2021) between a window of 11:59 a.m. and 1:44 p.m. In his report, P/C Clow indicates that he expanded the search beyond the parameters given to capture “notable activity”.
[60] At the preliminary hearing, P/C Clow confirmed that he created an image of the entirety of the contents of Mr. Younes’ cell phone and then extracted what he perceived to be relevant to the investigation and within the scope of the search warrant. The cell phone analysis did not reveal any active texting or communicating in and around the time of the collision (12:25 p.m.). A chronology of when the cell phone was unlocked or locked, plugged in, or unplugged was included in the report, but was not entirely helpful.
[61] The most significant information obtained from Mr. Younes’ cell phone that the Crown intends to use at trial does not relate to cell phone activity in and around the time of the collision, but rather Mr. Younes’ actions in the days and hours leading up to the collision.
[62] Specifically, in the police search of Mr. Younes’ cell phone, they found a photograph from early in the morning of October 3, 2021 showing Mr. Younes socializing with others with a red plastic “solo” cup in his hand.
Section 8 Analysis
[63] There is no question that there is a reasonable expectation of privacy over the contents of a cell phone, which is more akin to a computer. [31] The police appropriately obtained a warrant to search Mr. Younes’ cell phone.
[64] Mr. Younes advances two reasons why the seizure and search of his cell phone violated s. 8 of the [Charter] [3] despite the warrant. Firstly, he submits that the ITO failed to disclose reasonable grounds to believe a search of his cell phone would afford evidence of an offence, and therefore the warrant was invalid, and the search was unlawful. Secondly, he takes the position that - even if the warrant is held to be valid - the search of the cell phone was overly broad and therefore unreasonable.
Validity of Warrant
[65] The provincial ban on using a hand-held device to promote “road safety” by preventing distracted driving, and commentary in the caselaw, demonstrates the prevalence of the phenomenon of distracted driving due to cell phone usage. [32] Mr. Younes’ cell phone was found in his vehicle. He has a prior conviction for driving with a handheld device. At the search warrant stage, how an individual acted on prior occasions is relevant to whether or how they acted at a material time. [33] One of the witnesses to the collision described the collision by comment that was if the driver of the GMC had fallen asleep or been distracted.
[66] Even though no witness observed Mr. Younes on his cell phone around the time of the collision, a commonsense inference, combined with police and court experience, is that distracted driving due to cell phone usage was an explanation for the collision. On this basis, I am satisfied that the ITO discloses reasonable grounds to believe a search of the cell phone would afford evidence of an offence and the search warrant could have issued with the narrow focus on cell phone activity around the immediate timeframe of the collision.
[67] Of course, that is not what happened.
[68] The ITO went far beyond seeking authority to search Mr. Younes’ cell phone for activity around the immediate timeframe of the collision. The ITO sought (and the search warrant granted) authority to search the cell phone for: a timeline of activity through analysis of cell phone usage; multi-media content (including photographs and social media); geographic location information; communication between the accused and other suspects and victims; and passwords and ownership details, to provide a “more complete picture”.
[69] It appears as if the contents of the ITO were cut and pasted from a precedent. I am unclear as to why the affiant would have believed the communications between the accused and other suspects and victims, for instance, would be relevant to the investigation of the motor vehicle collision. Likewise, how geographic location information or multi-media content is relevant to the investigation was never explained.
[70] Where a relatively clear line of demarcation exists between the “good and bad parts” of an application to search, the doctrine of severability permits excision or an ignoring of the latter parts in determining whether the residue continues to provide valid support for the issuance of the order. [34] I am satisfied that this is a case where the “good” parts of the ITO and warrant can be separated from the “bad”.
[71] The search of Mr. Younes’ cell phone for activity in the immediacy of the collision would provide evidence of whether Mr. Younes was distracted by the device at the material time. This, I find, is encompassed in the ITO and search warrant with reference to the “timeline of events”. I find that the warrant to search Mr. Younes’ cell phone was valid, insofar as it relates to the search for activity on the phone in the immediate timeframe of the collision that would assist in determining whether distracted driving was a cause of the collision.
[72] I find that the ITO fails to disclose reasonable grounds for a warrant to search Mr. Younes’ cell phone apart from activity in the immediate timeframe of the collision. I therefore find the remainder of the warrant to be invalid.
Lawfulness of the Search Itself
[73] Further to the search warrant, the police downloaded the entirety of Mr. Younes’ cell phone, including geographic information for years, banking information, and Mr. Younes’ personal photos, amongst other irrelevant and highly personal data.
[74] Despite my finding that the warrant was valid insofar as it pertains to the search for cell phone activity around the immediate timeframe of the collision, I nonetheless conclude that the entirety of the police search of Mr. Younes’ cell phone was unlawful.
[75] I reach this conclusion because the temporal and contextual connection between the search of the cell phone pursuant to the “good” and “bad” parts of the warrant are simply too strong to separate. [35] It is all part of the same offensive transaction.
[76] There can be no suggestion that the subquality in drafting the ITO was due to haste or urgency that would provide a legitimate excuse for the overreach.
[77] Accordingly, I find that the search of the cell phone offends Mr. Younes’ s. 8 Charter rights.
Section 24(2) Analysis
[78] The inquiry shifts to the appropriate remedy for the Charter breach. At this stage, the seriousness of the breach, impact of the breach on the applicant, and societal interest in adjudication of the charges on the merits must be considered. [36]
[79] A significant portion of the ITO was clearly cut and pasted from a precedent. It sought information that was obviously irrelevant to the investigation of a driving offence. While sloppy drafting of an ITO is not necessarily fatal to the validity of a resulting warrant, in this case the level of carelessness rises to a level that I find to be serious. This is particularly so given the acknowledgment by P/C Clow that he was instructed to search the cell phone for activity between the specific time frame of 11:59 a.m. and 1:44 p.m. on the day of the collision.
[80] The entirety of Mr. Younes’ cell phone was downloaded. The disclosure package sent to defence counsel included intimate photos of Mr. Younes, banking information, and social media search results. I find the impact of the breach to be serious.
[81] If the evidence from the overly broad search of the cell phone is excluded, the trier of fact will not see the photograph of Mr. Younes socializing with a red solo cup in his hand in the early morning hours on the date of the collision nor the data pertaining to cell phone activity around the immediate timeframe of the collision.
[82] In my view, the omission of this impugned evidence does not significantly impact the Crown’s case. As noted by the defence, the Crown will still be in a position to adduce evidence from witnesses that were at the party with Mr. Younes. Further, the cell phone extraction report tracking activity around the time of the collision was not particularly helpful.
[83] Any evidence obtained from the search of Mr. Younes’ cell phone is inadmissible.
Conclusion
[84] Following a fatal motor vehicle collision, the OPP conducted a temporally staged, progressive investigation of the accident including a scene investigation, an analysis of ACM data, and additional investigation leading to the issuance of two search warrants and a production order.
[85] The collision was not an “unexplained accident”. There were witnesses. It occurred when the vehicle Mr. Younes drove crossed the centre lines and struck another vehicle head-on in fair weather and broad daylight.
[86] An option for the police was to simply clear the roadway and to leave the matter to wrecking yards, insurance adjusters, the civil courts, and potential provincial [Highway Traffic Act] [37] charges. However, I find the totality of circumstances precluded that approach. Prominent in the civil and criminal courts of this province and in its case law, is that injury and death in motor vehicle collisions are frequently caused by vehicle mechanical failure, distracted driving (i.e., using a cell phone), substance impairment, speeding, and failure to wear seatbelts.
[87] Police “must” investigate possible crimes - “[t]hat is their duty” which involves “gathering and evaluating evidence.” [38]
[88] The October 2, 2021 collision could have been the result of non-criminal circumstances such as mechanical failure, a medical incident involving the GMC operator, momentary inattention, etc. However, such “innocent” causation, though not excludible, could not simply be presumed in the absence of compelling evidence. On the contrary, results of the scene investigation and the experience of the police with serious motor vehicle accidents, quite reasonably pointed toward the very real potential for criminal culpability on Mr. Younes’ part. Of course, “[a] number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness.” [39]
[89] To sort out what happened, and with the exception of the overly broad search of the cell phone, the police reasonably and progressively resorted to lawful investigative actions to rule in or out criminal liability on the part of Mr. Younes.
[90] I find the evidence obtained by the police from the GMC’s ACM, Mr. Younes’ medical records, and the toxicology reports analyzing Mr. Younes’ blood, are admissible. The evidence obtained from the overly broad search of Mr. Younes’ cell phone is excluded pursuant to s. 24(2) of the [Charter] [3].
Muszynski J.
Released: November 4, 2024