Failure to ask accused if he wants to speak to a lawyer.

The case of R. v. Knoblauch 2018 SKCA 15 addressed the question of whether a detained person’s right to legal counsel, as guaranteed by s. 10(b) of the Canadian Charter of Rights and Freedoms [Charter], is breached by a police officer who, after properly informing the detainee of his or her right to counsel, fails to ask whether the detainee wishes to consult with a lawyer.

The arresting officer advised Knoblauch that he was under arrest for impaired driving. The officer then advised Knoblauch of his section 10(b) Charter right to counsel. When asked if he understood his right to counsel, Knoblauch said “Yep, yes”. The officer did not go on to ask Knoblauch if he wanted to speak to a lawyer while he was in the back of the patrol car. The evidence revealed that the officer was distracted by a number of police radio transmissions occurring at this time. Two minutes later, the officer made a breath test demand of Knoblauch and also provided a police caution to him. Knoblauch indicated that he understood the breath demand and the police caution.

The officer’s report indicated that at roadside, “the accused understood all warnings and declined to call a lawyer“. The trial judge found the patrol car video clearly showed that at roadside Knoblauch had not been asked if he wanted to call a lawyer and had not declined to do so.

On cross-examination, the officer admitted his notes read that at another time, he had “again” asked Knoblauch if he wanted to call a lawyer. The trial judge determined that statement was inaccurate as the officer had not made any prior inquiry. The trial judge concluded the two inaccuracies identified by him affected the credibility and reliability of the officer’s evidence and, as such, the trial judge found “that at no time did [the officer] ask Knoblauch if he wanted to call a lawyer”.

So, does a police officer, who has complied with the informational component of s. 10(b) of the Charter (duty to advise), have a duty to ask a detainee whether he or she wants to consult with a lawyer? At para 25:

It is now well settled that s. 10(b) imposes certain duties on police officers when arresting or detaining individuals, namely:

(a) to inform a detainee, without delay, of his or her right to retain and instruct counsel;

(b) if a detainee has indicated a desire for counsel, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(c) to refrain from questioning or otherwise attempting to elicit evidence from a detainee until he or she has had a reasonable opportunity to consult and retain counsel (except in urgent and dangerous circumstances).

The existing jurisprudence states that the first duty identified has been described as an informational one, while the second and third duties are implementational in nature andare not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel. In R. v. Brydges [1990], the Supreme Court of Canada provided guidance on what is required by police officers in fulfilling their informational duty. The majority of the Court held that in addition to advising detainees of their right to retain and instruct counsel without delay, police officers must also advise detainees of the existence and availability of Legal Aid and duty counsel.

Police services provide their officers with caution cards, which are used by the officers to inform detainees of their s. 10(b) Charter right. Some such cards include a question as to whether the detainee wishes to consult counsel; others do not.

The SKCA in this case said there is no magic to the incantation of the words on such cards. What is important is not the words used but, rather, whether, in the circumstances as a whole, a detainee has been properly informed of his or her right to counsel. At para. 51:

In summary, both the trial judge and the appeal judge concluded [the officer] had properly fulfilled his informational duty by informing Mr. Knoblauch of his right to counsel as described by the Supreme Court of Canada in Brydges and Bartle. In accordance with judicial authority, no further duties were imposed on [the officer] with respect to Mr. Knoblauch’s s. 10(b) right to counsel, unless and until Mr. Knoblauch invoked that right.

Simply put, the SKCA concluded there is no duty on a police officer, who has complied with the informational component of a detainee’s s. 10(b) right to counsel, to inquire whether a detainee wishes to exercise that right.

Note: please follow the issued cards provided to you by your agency to inform detainees of their s. 10(b) Charter rights. If your card includes a question as to whether the detainee wishes to consult counsel, continue to do so unless or until those changes are made within your jurisdiction by the appropriate authorities.  This decision may be binding in Saskatchewan, but it is not an SCC decision [yet], so adhere to binding decisions and policies in your jurisdiction as the case may be.

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Search warrants and typographical errors

R. v. Campbell 2018 NSCA 42 – police executed a search warrant at a home in Brooklyn, N.S. The respondent was subsequently charged with drug and firearm offences. The respondent challenged the validity of the search warrant. He submitted the warrant was fundamentally flawed on its face and, as such, the search undertaken of his home constituted a breach of his right under s. 8 of the Canadian Charter of Rights and Freedoms to be free from unreasonable search and seizure. He further argued that the evidence collected by virtue of the search ought to be excluded.

In challenging the warrant, the respondent did not suggest that the information contained in the Information to Obtain (ITO) did not give rise to reasonable grounds to believe evidence of an offence would be found at his residence. The sole basis of the respondent’s challenge was in relation to an error on the face of the warrant itself. He submitted this error alone was sufficient to render it invalid.

Police had responded to a call earlier in the day from the general public about a male walking down the road with a shotgun. Arriving on scene, police observed a male entering a mini-home on Gaspereau River Road, Brooklyn, N.S., carrying a firearm. Police followed him to the mini-home and arrested the man for firearm related offences. The first male was taken to the police station for further questioning. A search of the property was subsequently undertaken by three officers for public and officer safety. Cannabis plants were located in the kitchen and in a greenhouse in the backyard. Officers also found an unsecured .22 caliber rifle next to the cannabis plants in the greenhouse. The police officers left the residence and began conducting surveillance while awaiting a search warrant to be approved. During the surveillance period, a second male (the respondent) arrived and advised the officers that he lived at the mini-home. He was arrested and transported to the police station as well. The search warrant was approved by a Justice of the Peace

The error?

This warrant may be executed between the hours of 6:00 p.m. on the 7th day of May, 2016 and 9:00 p.m. on the 7th day of January, 2016.

Maybe a ‘cut and paste’ error, or the wording in a prior template (search warrant) not being corrected (my thoughts, not the court’s).  Of course, the question to address was, “Was this merely a typographical error, or was it a serious fundamental defect that makes the warrant invalid?”  The NSCA discussed that the trial judge was well aware that a warrant could contain a typographical error which would not impact on its presumptive validity. However, some errors went beyond such harmless errors and may be problematic. The trial judge clearly understood that some errors on the face of a warrant could be trivial and did not import into her reasoning a standard of facial perfection.

Where a search warrant appears regular and valid on its face, issued by the proper justice, it represents, until quashed by subsequent proceedings, full authority to the officer in entering, searching and detaining goods according to its terms and directions. The search warrant should, on its face, appear to be issued in the form prescribed by the statute, and issued by the proper court officer, in order to the officer to act upon it. The executing officer will then be justified in carrying out its mandate even though the information may have been legally insufficient to authorize the issuing of the search warrant, and even though the search warrant might be set aside if an application is made (cited from Fontana and Keeshan in The Law of Search & Seizure in Canada, 8th ed. at page 61).

At para. 36 in Campbell:

Implicit …..is the expectation that an executing officer should assure him or herself that they are about to act in accordance with the terms of the warrant. That necessitates that they read it. Here, the warrant was not “regular” on its face — it contained an obvious error with respect to the time frame for execution. It was well within the purview of the trial judge to infer either that the obvious error was not noted by police, or conversely, they acted on it notwithstanding the error. No evidence was offered to explain why or how the police acted in the face of an obvious error on the warrant.

Due to the negligence of the police in obtaining and executing the search warrant, the resulting grow op and firearms evidence was excluded.

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Checking on child welfare does not necessarily permit warrantless police searches

In R. v. McMahan 2018 SKCA 26, police received a call from the local Mobile Crisis Unit regarding an anonymous tip concerning the well-being of the children living in Ms. McMahon’s residence. Specific concerns identified by the tipster were poor living conditions and children not fed properly. Since the tip had been received by Mobile Crisis on a weekend, and because it had no staff in proximity to McMahon’s home, Mobile Crisis asked the police to “go and just take a look, find out what things were like and report back to them”. Two police officers attended the residence and McMahon greeted them outside. After being informed of the reason for the police visit, McMahon requested a few minutes to clean up the home, but was denied. The officer denied her request, stating it would be inconsistent with the purpose of a “spot check”. The discussion that took place outside McMahon’s home lasted no more than five minutes. McMahon then turned, opened the door, and entered her residence.

The officers followed her inside. Upon entering the home, the police smelled burnt marihuana. One of the officers also observed a jar of marihuana bud and the adults in the home were arrested (McMahon and two others). As there were no adults left to supervise the three children, the police determined that they should be taken into care. While assisting the children in preparing to leave the residence, one of the officers entered a room and noticed a number of marihuana plants. A search warrant was later obtained and 191 marihuana plants were seized pursuant to the warrant. McMahon applied to have the marihuana plants that were seized from her residence excluded from evidence at trial on the grounds that the police had entered her home and seized the plants without lawful authority. The trial judge allowed the application and excluded the evidence. He found that the investigating officer exceeded her powers by entering the home without a warrant and that the subsequent search and seizure of the marihuana plants amounted to a violation of McMahon ‘s s. 8 Charter rights.

The Crown appealed, arguing that the trial judge erred in finding the police had entered the home without lawful authority, erred in finding that McMahon’s privacy rights were engaged, erred in applying the standards applicable to gathering evidence in a criminal investigation to a child welfare inquiry, and erred in excluding the evidence.

Since the Crown principally relied upon the Child and Family Services Act (CFSA) as authority for the warrantless search, this legislation was examined.  The legislation’s purpose is to promote the well-being of children “in need of protection” by offering services designed to maintain, support and preserve the family in the least disruptive manner. Children are considered to be “in need of protection” if the child’s situation meets one of the circumstances described (s. 11), including a circumstance where “there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur”. Section 12 of the CFSA legally obliges any person who has reasonable grounds to believe a child is in need of protection to report that information to an officer or a peace officer.

Where a report is made to a child protection worker or peace officer, the recipient of that report must investigate the information set out therein if the child protection worker or peace officer, as the case may be, has reasonable grounds to believe that a child is in need of protection. The CFSA lays out a number of approaches available to child protection workers when a child is considered to be in need of protection. The level of intervention ranges from the least disruptive (support services, mediation, agreements with the parents for residential care), to more interventionist measures (apprehension, protective intervention orders, temporary or permanent guardianship orders).

The CFSA does not expressly authorize a peace officer to enter a private dwelling for the purpose of conducting an investigation; it does set out the authority for and conditions upon which a warrant to enter a private home may be obtained, notably, when an officer has not yet determined if a child is in need of protection and needs access into the home in order to make that determination.

The Crown’s position also, both at trial and on appeal, was that warrantless entry into McMahon’s home was justified under the common law police duty to preserve the peace, prevent crime and protect life and safety. In other words, the police response to the anonymous tip about McMahon’s children engaged a positive obligation on their part to assist McMahon’s children who may have been in distress, even if the extent of their distress was unknown to them at the time they received the tip. The Crown argued the anonymous tip was akin to a 9-1-1 call and therefore constituted sufficient evidence of the reasonableness of the police action. Finally, the Crown suggested that once the common law duty is found to exist, the police are both authorized and duty bound to enter a private dwelling without a warrant in furtherance of their power, without considering whether entry was reasonably necessary in the circumstances.

The SKCA found the warrantless entry was not justified by child welfare concerns in the absence of exigent circumstances. The testimony of the officer at trial did not satisfy the trial judge that she believed the life or safety of the children were in danger; she only had a vague, anonymous tip that the children were not being properly fed and the house was in poor condition.  As such, the officer did not have reasonable grounds to believe that the children were in need of protection. There was no direct evidence that the children were in distress. The anonymous tip, which was received second hand and came from an unknown source, was vague and not compelling or credible. The warrantless entry was without McMahon’s informed consent. McMahon was not advised of her right to refuse police entry or of the ability of the police to get a warrant under the Child and Family Services Act. No matter how well intentioned the officer was, the warrantless, non-consensual, non-urgent search of her home was a serious violation of her s. 8 Charter rights.

Of note, even though the legal basis (principles) discussed in this decision appear sound, your provincial legislation may grant or authorize other powers that the CFSA in Saskatchewan does not, so please refer to the relevant legislation in your territorial jurisdiction for guidance.

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A novel 9-0 SCC judgment upholding a New Brunswick liquor law that incidentally restricts the transport of Canadian-made alcohol from Quebec across New Brunswick’s border.

I will post more of the decision soon, but for now here is a quick link for those interested in a case brief: https://www.thelawyersdaily.ca/articles/6351?utm_source=rss&utm_medium=rss&utm_campaign=section

 

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Prosper “Hold Off” Still Being Violated

Some agency-issued standard Charter/Caution cards or statement forms contain phrases that resemble: “You may be charged with … You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you wish to say anything?

R. v. G.T.D. 2018 SCC 7 – as he was sitting in the back of a police car, following his arrest on an offence of sexual assault of a former intimate partner, the police officer read him his rights. When the officer asked if he wanted to speak with a lawyer, he said: “Uh, yes.” The officer then said: “You may be charged with sexual assault. You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you wish to say anything?” G.T.D. replied: “Yeah. Like a boss says I’m raping, I didn’t do because I was thinking, like, since we are in a relationship, it’s okay. I didn’t think it would be a raping because we our two boys together” [English was not his first language].

He pleaded not guilty. Defence conceded, at trial, that his statement to the officer was voluntary but argued that it was obtained in a manner that violated his right to counsel. The officer breached the duty to hold off by asking him “Do you wish to say anything?” after he said he wanted to speak to a lawyer. The trial judge ruled that the question did not breach the right to counsel and, if it did, she would not have excluded the statement. The majority in the Court of Appeal dismissed the appeal. It was of the view that the form of caution read by the police officer generated a breach of the appellant’s right to counsel under s. 10(b) of the Charter, but that the breach was of minimal gravity and that admission of the resulting evidence would not bring the administration of justice into disrepute and did not need to be excluded as a remedy under s. 24(2) of the Charter.

The Supreme Court of Canada reversed the ruling (4-1 majority) and ordered a new trial. Justice Russell Brown held in brief reasons, at paras 2-3, that the question “Do you wish to say anything?” violated the duty to hold off “because it elicited a statement” that should have been excluded. The SCC said that the trial judge expressly relied upon G.T.D.’s statement to corroborate the complainant’s evidence; therefore, its admission was not harmless and the statement should have been excluded.

The right to counsel under s. 10(b) of the Charter obliges police to “‘hold off’ from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel” (R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269).

Of interest to some, the ABCA was quite vocal on point, at para. 82:

It is not the arresting officer’s behaviour individually that is of greatest concern, however. Instead, any fault lies at the feet of EPS institutionally, because it included the eliciting question at the end of its standard caution, or alternatively, because it failed to train its officers not to read this question when a detainee asked to speak with a lawyer. The arresting officer’s good faith does not significantly mitigate the seriousness of a Charter breach if his good faith misunderstanding of the law was a result of EPS training or policy that did not properly educate the officer about his obligations under the Charter. Instead, such an institutional or systemic Charter breach is more serious than an isolated incident: R. v. Harrison, 2009 SCC 34 at para 25, [2009] 2 SCR 494; R. v. Heng, 2014 ABCA 325 at paras 10-11, 580 AR 397; R. v. McGuffie, 2016 ONCA 365 at para 67, 131 OR (3d) 643.

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Failure to fulfill a duty that is considered best practice should not be taken lightly because it is a statutory and common law duty…

What do many of us do when we execute a search warrant of a residence or place? I suspect that many will say, “Leave a copy of the warrant at the place, or at least show or give the affected party a copy.” If that is your response, you would be correct; and don’t just take my word for it.

R. v. Boekdrukker 2018 ONSC 266 – police executed a search warrant at the accused’s home after she sold cocaine to an undercover officer. Following one buy, and before a second successful buy in which the accused was arrested, police applied for and were granted the search warrant, which they brought to the place to be searched before actually executing it.  One of the officers had the warrant in his car, but didn’t bother to bring the warrant into the residence with him during the search, nor did police leave a copy of the search warrant in the residence after they finished the search and left. To compound this, police did not show Ms. Boekdrukker the search warrant when she asked to see it upon her arrest at the residence. To remind all of us, s. 29(1) of the Criminal Code states:

It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.

In the judge’s opinion, the common law mandates that police officers leave a copy of the search warrant in an unoccupied place or premise that they have searched. In addition, s. 29(1) CC was not complied with because it was feasible for the police to show Ms. Boekdrukker the search warrant. She asked to see it. She was under arrest, cooperative, and compliant. There was no urgency in removing her from the scene. In fact, she was not removed immediately. The search warrant was in the officer’s car and could have been readily retrieved, said the judge.

As another note, in this case, there was a violation of s. 10(b) of the Charter due to the unreasonable delay in facilitating the accused’s contact with counsel (it took nearly 4 hours from the time she expressed her desire to speak to a lawyer and almost 3.5 hours from her arrival at the police station to speak to duty counsel). The reasoning relied upon the line of authority that has permitted the police to delay the s. 10(b) implementation duties when the police are in the process of obtaining and executing a search warrant, where there are legitimate concerns for an officer or public safety and/or for the loss or destruction of evidence, which may prove to be exigent circumstances that justify a temporary suspension of Charter rights. These cases often involve the potential for violence or firearms as well.

No such concerns arose in this case. The police already had the search warrant in their possession before they arrested Ms. Boekdrukker. Ms. Boekdrukker was told they were going to search her unit. The police then quickly entered and secured the unit even before Ms. Boekdrukker was taken back to the police station. There was no one in the unit that the police searched. There were no other factual circumstances that raised any safety or investigative concerns once the unit was secured. While some of the officers testified to general concerns in executing search warrants to avoid a loss of evidence, none of the officers acknowledged this was a motivating concern here in terms of the failure to facilitate access to counsel. According to the judge, even if the police properly delayed access to counsel in order not to compromise the search, there was no reason why access to counsel was delayed beyond the time when police gained access to the unit and found it unoccupied.

The evidence seized during the search of the residence was excluded and the accused was acquitted on those charges. Luckily, the charges stemming from the sale to the undercover officer stood and the accused was convicted of trafficking and possession of the proceeds of crime.

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Sue Charlton: Mick, give him your wallet. Michael J. “Crocodile” Dundee: What for? Sue Charlton: He’s got a knife. Michael J. “Crocodile” Dundee: [chuckling] That’s not a knife. [draws a large Bowie knife] That’s a knife.

Is it just a knife, or is it a ‘weapon’ as contemplated in the Criminal Code?

The definition in the Criminal Code is as follows:

weapon means any thing used, designed to be used or intended for use: (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, anything used, designed to be used or intended for use in binding or tying up a person against their will;

In R. v. Vader 2018 ABQB 1, the accused was found in the driver’s seat of a beat-up pickup truck, in the middle of nowhere, driving and behaving erratically. When he was arrested, the police noted the handle of what turned out to be an old machete extruding from the under the driver’s side floor mat of the vehicle and a fishing knife, in a leather scabbard, in an open area at the bottom of the driver’s side door. Vader, at the time, was bound by two release documents, each of which provided as follows:

You shall not possess any firearms, ammunition, explosives or any other type of weapon whatsoever and you shall surrender any firearms, ammunition, explosives or any other type of weapon currently within your possession to the St. Albert RCMP Detachment within 24 hours of your release.

He was not charged under s. 88 or s. 90 of the Criminal Code, but with violating the terms of his release. The trial judge concluded that both items were “weapons” within the definition of “weapon” in s. 2 of the Criminal Code and convicted him. Vader appealed his conviction, based on the definition of ‘weapon’ in the Code. The focus at trial was on the middle portion of the definition (designed to be used).

On appeal, the Crown submitted that the inference which could have been drawn on the evidence was that the accused intended to use the items as weapons. The Crown argued that inference was, in all the circumstances of the case, inescapable, and should have been drawn by the learned trial judge. The appeal judge noted that items which have both violent and non-violent uses are not caught by an objective categorization. Context is necessary to determine if the violent aspect of the item is ascendant. Weapons offences are not absolute liability offences. An accused person retains the right to attempt to establish justification for possessing an item which is otherwise, by its nature, a weapon.

So, said the judge, while it may be reasonable to have a machete in the forest or a fishing knife at a lake, it’s not reasonable to have either on a residential bus in February in the City of Edmonton. In that latter context, it is not the manufacturer’s design or the modification of it performed by others which determines the character of the object. It is the accused’s design which is determinative. The accused’s design is determined by context. In those circumstances, the otherwise ambiguous nature of the item is determined by what possibilities the evidence does and does not support. In the absence of some other reasonable possibility, it leads to the inference that the possessor’s design was to use the machete as a weapon. Or, put another way, to have the machete as a weapon.

By way of another example, the judge said that an accused with a freshly sharpened machete in the leg of his pants in February, in Edmonton, at a local bar, in the absence of other reasonable possibilities, could be inferred to have the item which he designed to use as a weapon. He has an item designed to be used as a weapon, whether he intends to use it or not. If the circumstances are the same, but the accused is shown to have gone to the bar to seek retribution for an earlier beating at the hands of a fellow bar patron, one might infer intent to use the weapon, which the machete was found to be by virtue of the context and his design. An item which is both violent and non-violent in potential use will be found to be a weapon where the context supports the inference that it was the accused’s design and the context does not support any other reasonable possibility.

Vader’s appeal was dismissed.

 

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A Part VI authorization only applies to prospective interception of digital messages and is not required to obtain historical text messages. A production order is sufficient.

R. v. Jones 2017 SCC 60 – Jones was convicted of several firearms and drug trafficking offences. His convictions rest on records of text messages seized from a Telus account associated with his co-accused, pursuant to a production order obtained under s. 487.012 (at that time, but now s. 487.014) of the Criminal Code. Jones challenged the Production Order under s. 8 of the Canadian Charter of Rights and Freedoms. He argued that law enforcement must obtain a “wiretap” authorization under Part VI of the Code to seize records of historical text messages from a service provider in order for the seizure to comply with s. 8 of the Charter.

Telus complied with a Production Order and provided the requested records to the police. The records revealed a text message exchange concerning the potential transfer of a firearm. The exchange occurred between the co-accused’s phone and a phone used by Jones, but registered in the name of his spouse. Relying in part on the text messages, the investigators obtained a Criminal Code Part VI authorization for a number of phones associated with the suspects. Communications intercepted under it were then used to obtain an additional Part VI authorization. On the basis of those subsequent interceptions, search warrants were granted and executed. The fruits of those searches led to Jones’s prosecution for marihuana trafficking and proceeds of crime charges. The firearm trafficking charges against him, on the other hand, were brought largely on the basis of the text messages obtained under the Production Order.

Not surprisingly, the SCC ruled that it is objectively reasonable for the sender of a text message to expect a service provider to keep information private where its receipt and retention of such information is incidental to its role of delivering private communications to the intended recipient (in short, there is a reasonable expectation of privacy in texts stored by a service provider). However, historical text messages denote messages that have been sent and received, not those still in the transmission process. In such cases, a Part VI wiretap authorization is unnecessary because the police are not seeking an order authorizing the prospective production of future text messages. Nor is the police seeking evidence in text messages that are still in the transmission process. Therefore, the search and seizure of historical text messages can be properly authorized by the production order provisions of the Criminal Code, and does not breach s. 8 of the Charter.

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Can Canadians ever reasonably expect the text messages they send to remain private, even after the messages have reached their destination?

R. v. Marakah 2017 SCC 59 – Marakah sent text messages regarding illegal transactions in firearms to Winchester, asking him to delete them after reading them. The police obtained warrants to search his home and that of his accomplice, Winchester. They seized Marakah’s BlackBerry and Winchester’s iPhone, searched both devices, and found incriminating text messages. They charged Marakah and sought to use the text messages as evidence against him. At trial, Marakah argued that the messages should not be admitted against him because they were obtained in violation of his s. 8 Charter right against unreasonable search and seizure. The application judge held that the warrant for Marakah’s residence was invalid and that the text messages recovered from his BlackBerry could not be used against him, but that Marakah had no standing to argue that the text messages recovered from Winchester’s iPhone should not be admitted against him. He admitted the text messages and convicted Marakah of multiple firearms offences. The majority of the Ontario Court of Appeal agreed that Marakah could have no expectation of privacy in the text messages recovered from Winchester’s iPhone, and hence did not have standing to argue against their admissibility. The main question on appeal to the SCC was whether Marakah had a reasonable expectation of privacy in the messages he sent to Winchester and whether he could claim s. 8 Charter protection for the text messages accessed through Winchester’s iphone?

The SCC said text messages that have been sent and received can, in some cases, attract a reasonable expectation of privacy and therefore can be protected against unreasonable search or seizure under s. 8 of the Charter. To claim s. 8 protection, a claimant was required to first establish a reasonable expectation of privacy in the subject matter of the search. Whether a claimant had a reasonable expectation of privacy had to be assessed with regard to the “totality of the circumstances” (factors discussed in R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34). The subject matter of the alleged search was the specific electronic conversation between Marakah and Winchester. According to the SCC, Marakah had a direct interest in that subject matter, he subjectively expected it to remain private, and that expectation was objectively reasonable. He therefore had standing to challenge the search.

If the place of the search was viewed as a private electronic space accessible by only Marakah and Winchester, Marakah’s reasonable expectation of privacy was clear. If the place of the search was viewed as Mr. Winchester’s phone, this would reduce, but not negate, Marakah’s expectation of privacy, said the SCC. The mere fact of the electronic conversation between the two men tended to reveal personal information about Marakah’s lifestyle; namely, that he was engaged in a criminal enterprise. In addition, Marakah exercised control over the informational content of the electronic conversation and the manner in which information was disclosed. A person does not lose control of information for the purposes of s. 8 simply because another possessed it or could access it, said the SCC. The risk that Winchester could have disclosed the text messages did not negate Marakah’s control over the information contained therein. It followed that Marakah had standing to challenge the search and the admission of the evidence, even though the state accessed his electronic conversation with Winchester through the latter’s iPhone.

The SCC noted, however, that not every communication occurring through an electronic medium would attract a reasonable expectation of privacy and grant an accused standing to make arguments regarding s. 8 protection. Different facts could lead to different results (e.g. messages posted on social media, conversations occurring in crowded Internet chat rooms, or comments posted on online message boards).  Two of the Justices, Moldaver and Rowe, were concerned as to the consequences of this decision on standing. For example, if the sender has a reasonable expectation of privacy in the record of his digital conversation, what happens when the recipient wants to show that record to the police? Is the SCC now opening the door to challenges by senders of text messages to the voluntary disclosure of those messages by recipients? As Justice Moldaver suggested, this would lead to the perverse result where the voluntary disclosure of text messages received by a complainant could be challenged by a sender who is alleged to have abused the complainant.

Would it make a difference if, for example, the complainant or victim volunteered or gave the text messages to the police rather than if the police seized or took them?  In Marakah, police seized the text messages from Winchester’s iPhone; Winchester did not offer or give them to police, nor did the police seek informed consent from Winchester.  Would that have mattered in the end?  I can’t say, but I suspect we will see a lot of litigation around this issue in the months to come.

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General warrant cannot be used for the impermissible purpose of circumventing the standards required for obtaining a CDSA s. 11 warrant.

R. v. Christiansen 2017 ONCA 941Christiansen was convicted after a jury trial of two counts of possessing narcotics for the purpose of trafficking, and one count of possessing proceeds of crime, $21,500; he appealed his convictions. A police investigation suspected that the accused and another individual were selling drugs out of a clothing store. Following further investigation and surveillance, police obtained a general warrant for the store. Upon confirming the presence of drugs (oxycodone and cocaine), police obtained a CDSA warrant to search the remainder of the store and the accused’s home. Police seized drugs from the store and $21,500 in cash from the accused’s residence.

The ONCA ruled that general warrants under s. 487.01 authorize the use of investigative techniques, procedures or devices, or other things to be done, that would otherwise constitute unreasonable searches. Subsection 487.01(c) restricts general warrants to cases where “there is no other [legislation] that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.” The Supreme Court dealt with this legislative restriction in R. v. TELUS Communications Co., [2013] 2 S.C.R. 3, [2013] S.C.J. No. 16. Justice Moldaver explained, at para. 80, that this requirement ensures that general warrants are to be used “sparingly” when the “investigative technique is truly different in substance from an investigative technique accounted for by another legislative provision.” He explained that s. 487.01(c) serves to ensure that “general warrants may not be used as a means to circumvent other authorization provisions that are available but contain more onerous pre-conditions.”

In this case, the general warrant was issued, in substance, for the same investigative technique available under CDSA, s. 11, namely, to search the Unit. The police could not satisfy the requirements for a search under CDSA, s. 11 because they did not have reasonable grounds to believe there was evidence at the Unit. In effect, said the ONCA, the police used the general warrant for the impermissible purpose of circumventing the standards required for obtaining a CDSA s. 11 warrant. The court therefore allowed Christiansen’s appeal, set aside the convictions against him, and ordered a new trial.

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