Monthly Archives: March 2014

If an officer was not lawfully on the premises of the accused’s and is subsequently assaulted, the officer cannot be said to be “in the execution of his duty”

R. v. Zargar 2014 ONSC 1415 – this case was interesting in that it touched upon alot of the common law and statutory authorities that we use for entry into private premises, and while this case is out of Ontario, the principles discussed in this case have applications throughout Canada.

One of the officers involved had been a Toronto police officer for “about five years” at the time of trial. He and his partner attended at the Appellant’s condominium unit in downtown Toronto in response to a noise complaint. The officers were in uniform and they arrived at the building at about 4:00 a.m. The complainant was the building security guard and he advised the officers that he had attended at one of the units in the building and had asked the male resident to turn down the music. There had been ongoing difficulties with this resident, according to what the security guard told the officers, but they were not advised of any security concerns. The officers proceeded to the eighth floor. They could hear music coming from the unit in question as they got off the elevator. They knocked on the door and the Appellant answered. The Appellant advised the officers that he was the owner of the unit and a “discussion” or series of questions and answers ensued. The officer thought that the Appellant was “confrontational” because he replied “what for” when he asked for his identification. The Appellant had simply identified himself as the owner of the unit, but he would not give his name. The other officer explained that the officers had received a complaint to the effect that the security guard had already told the Appellant once to turn down the music as he was disrupting other residents and again the officer asked the Appellant for his identification and the Appellant “again took exception” to this request. The officer testified that the above “discussion” with the Appellant took place “in the front doorway area of the foyer”. He acknowledged that he and his partner had “passed the threshold of the door” and were “inside the unit”, standing “side by side” in the “doorway foyer of [the] apartment”. The officer was standing about a foot away from the Appellant. He estimated that he was about “one step” inside the Appellant’s condominium unit. The oficer acknowledged in his testimony that the Appellant “took exception to us being inside and he wanted to close the door”, and he said something to the effect “get out of my house”.

In his testimony, the officer agreed that the Appellant was neither under arrest, nor was he detained. He testified that, “I’m investigating at that point”. The officer felt that he had sufficient grounds to arrest for mischief and that the Appellant “had completed the offence of mischief”. However, the investigation was proceeding so that the officer could determine “whether or not I will go by way of by-law, whether I will go by way of the Form 9 release, I have different things that I can proceed with … Just because I formed the grounds doesn’t necessarily mean I have to arrest”. The officer took the view that he “was investigating a Criminal Code offence of mischief to property, I was not going to leave his residence until my investigation was complete”. He needed to know “who I was speaking to” because this person “had committed a criminal offence”. The officer did not have an opportunity to explain his view of police powers because, upon asking a second time for the Appellant’s identification, the Appellant motioned and turned, “almost like he was going to get his ID”. The officer then took a second step forward into the unit and, at this point, the Appellant turned back and pushed the officer in the chest. The officer agreed that he had, “moved my way into the unit, yes.” The officer explained his second step forward, further into the unit, as being due to his desire to keep the door open. In the course of his “discussion” with the Appellant “in the foyer of the condo”, he could see that there were about eight to ten people inside the unit. There were about five males, one of whom had come outside of the unit and was standing in the hallway behind the officers. The others were females. The officer felt that there was a “safety concern” because “if that door was closed I didn’t know what was going to come at me afterwards”. The officers told the Appellant that they would not close the door. The Appellant wanted to close the door, which is when he pushed the officer. It was as if the Appellant was indicating to the officer, “like get out of my house and that’s when he pushed me”. The officer felt that the Appellant was not free to close the door or to refuse to answer his question about providing identification. The force used by the Appellant in the push “was minimal”, according to the officer. The effect of the push was that “my shoulder went back”. The officers proceeded to arrest the Appellant for assault police. There was a struggle to arrest him.

The Appellant was charged in a two count Information with assault police “in the execution of his duty” and with mischief by “playing loud music” which wilfully interrupted the lawful enjoyment of property at his condominium building.

The Honourable Michael Code said the facts of this case were unambiguous: the officer entered into a private residence and refused to leave when the owner asked him to leave; the officer’s admitted purpose was to investigate a completed offence of mischief, and not to make an arrest; finally, the officer took the position that he was not going to leave the residence until he had completed the investigation, in spite of a clear lack of consent from the owner of the premises. The only issue on appeal was whether this conduct by the officer was in accordance with the law.

The Judge said the answer to this question turned on the longstanding common law precept concerning the “sanctity of the home” (Eccles v. Bourque et al. (1974), 19 C.C.C. (2d) 129 (S.C.C.)). Given the clarity and strength of the common law principle, most of the case law has focused on those narrow situations where the police are given the authority to force entry into a dwelling, against the wishes of the owner, because of some statutory or common law power expressly authorizing such entry. These so-called “exceptions” to the general rule include the following:

* Where the police are in “hot pursuit” or “continuous pursuit” of an offender who has “gone to his home while fleeing solely to escape arrest”. See: R. v. Macooh (1993), 82 C.C.C. (3d) 481 at paras. 19-25 (S.C.C.); R. v. Van Puyenbroek (2007), 226 C.C.C. (3d) 289 (Ont. C.A.);

* Where the police, on reasonable grounds, believe that it is necessary to enter the premises in order to prevent the commission of an offence that would cause immediate and serious injury, or to protect life and safety by assisting a resident who is in potential danger. See: R. v. Godoy (1999), 131 C.C.C. (3d) 129 (S.C.C.); R. v. Sanderson (2003), 174 C.C.C. (3d) 289 (Ont. C.A.); R. v. Custer (1984), 12 C.C.C. (3d) 372 (Sask. C.A.);

* Where the police enter the premises in order to effect the arrest of a resident. In order to come within this exception, an arrest warrant was not required prior to the advent of the Charter. However, the post-Charter case law has narrowed the exception such that it now only applies where the police have obtained an arrest warrant prior to entry. See: Eccles v. Bourque, supra; R. v. Landry (1986), 25 C.C.C. (3d) 1 (S.C.C.); R. v. Feeney (1997), 115 C.C.C. (3d) 129 (S.C.C.);

* Aside from the above three exceptions, the common law did not recognize any broad residual “exigent circumstances” basis for forced entry. See: R. v. Silveira (1995), 97 C.C.C. (3d) 450 (S.C.C.); R. v. Feeney, supra, at para. 47. However, Parliament subsequently enacted a number of statutory provisions allowing for warrantless entry of a dwelling house in “exigent circumstances”, provided that certain statutory criteria are met. See, e.g. s. 11(7) of the Controlled Drugs and Substances Act, and ss. 487.11 and 529.3 of the Criminal Code. In the latter provision, “exigent circumstances” are defined as “imminent bodily harm or death” and “imminent loss or imminent destruction of evidence”;

* Finally, various statutory provisions expressly authorize forced entry by the police, most importantly, s. 487 enacts the power to search a dwelling house with a search warrant.

Justice Code said given the relatively small number of exceptions to the rule against forced entry of residential premises by the police, and given their narrow definitions, the courts have repeatedly held that there is no power to enter a dwelling simply for purposes of furthering an investigation. This is precisely what the officer thought he had the power to do in the case at bar. In R. v. Ryan (1956), 116 C.C.C. 239 (B.C.C.A.), it was held that “the mere desire to make an investigation gives no such right of entry”. The Judge said the authorities are clear that police officers become trespassers when they enter premises, without the consent of the owner and without bringing themselves within one of the recognized exceptions to the “sanctity of the home” principle. The officer could not bring himself within any of the exceptions to the “sanctity of the home” principle: there was no “hot pursuit”; there was no purpose relating to prevention of serious injury or protecting life and safety; there was no warrant to arrest and no warrant to search; and there were no “exigent circumstances” such as imminent bodily harm or death or loss of evidence. The Judge said the officer was simply pursuing a mischief investigation as a result of a noise complaint. In these circumstances, the authorities are clear that the officer was a trespasser and the Crown could not prove that he was acting “in the execution of his duty”.

The Honourable Michael Code said the trial judge erred in law in that she made repeated findings to the effect that the officer was on the premises pursuant to the Appellant’s “invitation to enter”. The Crown on appeal conceded that there was no evidence of any such “invitation to enter”. However, the Crown submitted that the “implied license” doctrine did allow the officers to enter into the foyer of the condominium unit, in order to communicate more effectively with the Appellant. Justice Code disagreed. The leading authorities concerning the “implied license” doctrine make it clear that it is no more than a license to approach the door of a dwelling and knock. Indeed, the doctrine is often described as an “implied license to knock”. It has never been held to permit entry (R. v. Evans (1996), 104 C.C.C. (3d) 23 at paras. 13 and 40 (S.C.C.)). Similarly, in the leading Ontario Court of Appeal decision, R. v. Tricker (1995), 96 C.C.C. (3d) 198 at 203 (Ont. C.A.), Galligan J.A. stated that “the implied license ends at the door”.  

The Honourable Michael Code said the trial judge erred again when she held that the officer was also justified in stepping further into the unit, and not stepping back outside the door when he was asked to leave, because of concerns about “officer safety”. Weak and speculative concerns about “officer safety” have never been held to justify forcible entry into private premises according to Justice Code. The Supreme Court of Canada’s recent decision in R. v. MacDonald[2014] S.C.J. No. 3 at paras. 41 and 43, allows such entry (pushing the door open a few inches in that case) but only on the basis of a demanding standard of “reasonable grounds to believe that there is an imminent threat to their safety” and not on “the basis of a vague concern for safety”. In that case, the officers had grounds to believe that MacDonald had a weapon in his hand. In the case at bar, the officer’s articulation of his “officer safety” concerns could not possibly meet the standard set out in R. v. MacDonald, supra. He explained that there were eight to ten men and women inside the unit, and one man outside in the hallway, and he testified that “I didn’t know what was going to come at me afterwards”, if he was to step back and allow the front door to close. This kind of speculative fear of the unknown, when there is a gathering of people in a dwelling, could apply to any dinner party or house party and it would effectively allow the police to remain, uninvited, at any such gathering. This would amount to an extraordinary expansion of police powers said Justice Code.

For all these reasons, the defence’s appeal was allowed, the conviction was set aside, and an acquittal was entered.



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Section 10(b) of the Charter does not require as a matter of law that police provide internet to arrested drinking drivers.

R. v. McKay 2014 ABQB 70 – for those of you following the internet access dilemma as part of s. 10(b) of the Charter that is happening in Alberta, the ABQB has ruled that s. 10(b) of Charter does not require, as a matter of law, that police provide internet access to arrested drinking drivers.  The ABQB said the court essentially agreed with the sentiments expressed by the Trial Judge in R. v. McKay 2013 ABPC 13 that it is time for the police to modify their procedures; however, the facts of this case did not, in the court’s view, justify the Court expanding the duties of the police in the manner chosen by the Trial Judge.

Mr. Justice S.J. LoVecchio said “it is not for lower court judges to “reassess social and technical conditions and change the law accordingly” in the face of binding precedent. By purporting to expand the resources police must provide to all detainees, absent a sufficient factual basis for doing so, the Trial Judge committed a reversible error.”

Further, Justice S.J. LoVecchio of the ABQB said:

In conclusion, I agree with the Trial Judge that it is time for the police to adjust their practices in accordance with changes to the way Canadians access information; however, this case lacks an adequate factual foundation to expand the duties of the police under section 10(b) in this manner. … Section 10(b) must develop to reflect the realities of modern life. In the 21st Century, this includes the Internet.”

In this case, Mr. McKay never requested Internet access, nor did he express to the officer any difficulties contacting counsel with the resources that were provided to him. Instead, Mr. McKay spoke with Legal Aid and informed the officer when he was finished. The officer was therefore entitled to assume Mr. McKay received satisfactory legal advice. Mr. McKay’s ignorance regarding 411 and his preference to use the Internet did not, without more said the ABQB, establish that Mr. McKay was deprived of a reasonable opportunity to contact counsel in this case.

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Breath sample evidence excluded for s. 10(b) Charter violation occasioned by failure to give “Prosper Warning”

R. v. Delaney 2014 ONCJ 83 – following the A.S.D. demand and subsequent test, a “F” reading resulted and a demand was made for breath samples and rights to counsel were provided. Initially, the accused made no response to the usual questions about counsel, but prior to arriving at the police station he had advised that he wished to consult a lawyer and at the station he advised he wanted to speak to a specific lawyer and gave the officer the name. The officer proceeded to make an online search of the name and determined that the lawyer requested was an estate lawyer. The officer gave evidence that he advised the accused that the lawyer he had chosen was not a criminal lawyer and asked “how he would like to proceed with contacting counsel”. The accused indicated that he wished to call the lawyer he requested and the officer stated he called the number listed on the website and left a call back message at 1:45 a.m. He then called the emergency number, which was not answered. He did have not any notes as to whether he left a message on the emergency line. At 1:48, he advised the accused that there was no answer at either number and that he had left a voicemail. The officer then asked if he wished to speak to any other counsel “and the indication was that he did not”. He stated he again asked, “You do not wish to talk any other lawyer?” — to which the accused indicated that was “Correct”. No return call was received from the lawyer by the time the officer reported off duty at 7:00 a.m.

At 2:00 a.m., the accused was taken into the breath room and at 2:08 the first breath test was completed. The officer testified that after the first breath test, he again offered the accused the opportunity to speak with a “lawyer or someone else” to which there was no response, after which “he fell asleep immediately”. Under cross-examination, the officer agreed that he waited 14 minutes between 1:46 and 2:00 a.m. for counsel to return the call before ushering the accused into the breath technician’s office. He also agreed that he was not aware of the “Prosper” [1994] 3 S.C.R. 236 obligation to hold off from trying to obtain incriminating evidence while an accused person is waiting for an opportunity to contact counsel. As well, the officer agreed that he had not given the accused the “Prosper caution” — in other words, informed him that the police have the obligation to give him a reasonable opportunity to speak with counsel of choice and they should hold off eliciting evidence until such time as “you have an opportunity to consult with your counsel”. The officer gave evidence that he did not know “that legal privilege”.

Defence asserted that the accused’s 10(b) rights were violated as a result of the officer’s failure to give a “Prosper warning” and establish an unequivocal waiver of his right to counsel. The Crown took the position that the defendant was not being reasonably diligent in the exercise of his right to counsel having turned down the offer to contact another lawyer when his lawyer of choice could not be reached, and accordingly, the correlative duties of the police were suspended and there was no impediment to the continuation of the investigation and the request for a breath sample.

The Judge said that one very troubling feature of this case was the fact that the officer candidly admitted that he did not know it was the law in Canada that he was under an obligation to provide a “Prosper warning” or obtain an informed, unequivocal waiver of the right to counsel before taking the next investigative step:

Q. An additional informational obligation on police is triggered once a detainee who has previously asserted the right to counsel indicates a change of mind and no longer wants legal advice. The police must at that point tell the detainee of the right to a reasonable opportunity to contact counsel and that the obligation on the part of the police to hold off during that period. Any indication of a change of mind must be clear and the burden of establishing an unequivocal waiver is on the Crown.

Were you aware that was the status of the law on December sixth, 2013?

A. Not specifically, no.

The Judge said applying the facts to all of the evidence, it was clear that the accused indicated that he wished to consult with counsel of choice and he was as diligent as he could be in doing so. He requested a named counsel and did what was expected by waiting from the time a message was left at 1:46 a.m. It was clear, according to the Judge, that the officer intended to terminate the waiting at 2:00 a.m., fourteen minutes later and offer the accused an alternative opportunity to consult with counsel, but in the absence of any note-taking (another issue brought up by the Judge) as to the questions asked, it was impossible to know precisely what the defendant responses meant or what he elected to do. The officer was of the belief that the accused was declining the offer to “speak to duty counsel or any other counsel.” There was no alternative but to accept the officer’s version of what transpired, but it was clear that he did not think the questions and answers regarding rights to counsel were important enough to memorialize in his notebook said the Judge.

The point is — that if, as the officer says the defendant in fact declined an offer to speak with duty counsel or any other counsel, the logic of the two bedrock decisions noted above (Prosper and R. v. Brydges [1990] 1 S.C.R. 190) is that when the police cannot reach counsel of choice, and the defendant indicates he has changed his mind and no longer wants legal advice, the “Prosper duties” must be complied with and an unequivocal waiver obtained — and only then will a defendant’s failure to avail himself of duty counsel amount to a failure to exercise reasonable diligence. In my view, ‘reasonable diligence’ on the part of the defendant never comes into play in this case.

The only way that Prosper and all the ‘reasonable diligence’ cases can be reconciled is by giving effect to the case authorities noted above and placing the police duties and the accused’s right to counsel obligations in their natural order. When counsel of choice cannot be reached after a reasonable waiting period, and an accused wishes to speak with alternate counsel, or duty counsel, an accused has to pursue that choice with reasonable diligence. Where an accused indicates that he or she has changed his or her mind and no longer wants legal advice, police must provide constitutionally sufficient information (the Prosper caution) in order to allow him or her to make a fully informed decision. This “additional informational requirement” on police “ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up,” according to R. v. Prosper.

The casual institutional disregard for an individual’s section 10(b) rights in this case suggests a systemic deficiency and a major gap in police training. …

At para. 44, the Judge said:

I can well imagine the pressure to rush through what might seem to be a meaningless ritual to police in order to procure the first breath sample ‘as soon as practicable’ and within the two-hour evidentiary presumption available to the Crown under s. 258(1)(c)(ii) of the Code. The fact is Mr. Delaney was arrested at 1:13 a.m. and at 2:00 a.m. he was taken into the breath technician’s office. The first breath sample was obtained by 2:08 a.m. With more than one hour remaining on the “clock” and the overriding Prosper principle that an accused’s rights to counsel trump the two-hour evidentiary presumption, there was no justification for such a thoughtless, mechanical and hurried response to the defendant’s change of mind about contacting counsel. The significance of an individual’s right to counsel on arrest or detention must be communicated to policing agencies: it is one key feature that differentiates constitutional democracies from regimes in which individuals are detained and held incommunicado for lengthy periods while state agents attempt to procure incriminating evidence.

Accordingly, the breath sample evidence and any statements obtained following the breach of the defendant’s section 10(b) rights were excluded pursuant to section 24(2) of the Charter.

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Police failure to return or report items seized to a Justice of the Peace as soon as practicable constitutes a breach of an accused’s rights under s. 8 of the Charter

For those officers that may feel “knowledge” of the law is not vital to the job or an investigation, here is another example to dispel the myth.

R. v. Garcia-Machado 2014 ONCJ 81 – on August 25, 2012, after attending a party, Mr. Garcia-Machado drove his Volkswagen Golf off the road, where it collided with two trees before coming to a stop. Mr. Garcia-Machado was carrying two passengers: his friend Mr. Carson Cameron sat in the front and Mr. Carson’s friend Ms. Katheryn Alphonso sat in the rear. Able to leave the car under her own steam, Ms. Alphonso ran home to call for help. She sustained a puncture wound to her knee that required stitches. Mr. Cameron sustained a concussion and a serious fracture to his lower right leg which required surgery and a long period of rehabilitation. Mr. Garcia-Machado suffered a broken femur. Both men were knocked unconscious by the impact and had to be extricated from the car by firefighters using the “jaws of life” before being taken to hospital. Using a search warrant, police seized a sample of Mr. Garcia-Machado’s blood and his medical records from the hospital on August 28, 2012. These were submitted to the Centre of Forensic Sciences (“CFS”) and a toxicologist was able to use them to come to the opinion that Mr. Garcia-Machado was “Over 80” at the time of the accident and that his ability to drive would have been impaired by alcohol. On October 26, 2012, Mr. Garcia-Machado was charged with Impaired Driving Causing Bodily Harm and “Over 80” Causing Bodily Harm. On December 17, 2012 and for the first time, police made a report to a Justice of the Peace concerning the items seized from the hospital.

The Ontario Court of Justice ruled that the police failure to return or report the items seized to a Justice of the Peace (in this case) as soon as practicable, contrary to section 487(1)(e) of the Criminal Code, constituted a breach of the accused’s rights under s. 8 of the Charter:

“In this case, the [four-month] delay was caused by the officer’s ignorance of the law and that of his fellow officers (including superiors), and his failure to consult the appropriate section of the Criminal Code. It was also the result of improper training and his decision to prioritize other investigations and to accommodate his shift work.

In this case, based on the authorities and the highly personal and private information at issue, I find that the police failure to report to a justice as soon as practicable rendered the otherwise valid search unlawful and unreasonable, contrary to s. 8 of the Charter.”

The blood sample and hospital records seized in the drinking and driving case were excluded under s. 24(2) where the police conduct was the result of “an apparent systemic and negligent failure to comply with the report and return provisions of the Criminal Code in the face of clear law requiring compliance.”

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Searching Digital Evidence

Currently, there is a “SUBMISSIONS REGARDING SEARCH OF DIGITAL EVIDENCE; APPLICATION FOR LEAVE TO INTERVENE,” by Alan D. Gold before the Court of Appeal for Ontario (Side Note – Alan D. Gold is a certified specialist in criminal litigation and has appeared as counsel in many leading criminal cases).  The Submission stems from R. v. Yu 2011 ONSC 7507 (and R. v. Liew 2012 ONSC 2990, the co-accused) in which Yu was committed to stand trial on two counts of importing cocaine and two counts of conspiracy to import cocaine.  The case against Yu was entirely circumstantial. The charges arose out of a controlled delivery of a shipment of wood that contained cocaine. The evidence at the preliminary inquiry included calls made to Yu’s cell phone, the presence of his vehicle in the vicinity of the controlled delivery, and documents related to the delivery found in Yu’s home.  The Submission can be summarized that the learned trial judge erred in the instant case when it was concluded that the warrantless search of a phone seized incident to arrest was not reasonable, save in exigent circumstances.  Since the matter is still before the court, I can only discuss portions of the Submission and update the blog once the decision is made.

At para. 29 of the Submission, Gold states:

The paradigm of a search incident to arrest involves a search limited in both time and place by temporal and proximity limitations. Consequently the potential invasion of privacy is inherently limited. Only so much can be carried on or about the person to be searched and found in the permissible time and proximate area incident to an arrest. Searches involving digital devices will be completely unbounded in both aspects. A search measured in minutes could potentially reveal private information of unlimited scope from data potentially stored anywhere in the world, or “cloud”. In today’s rapidly advancing technological world, a smartphone now holds or can access an enormous amount of information and data which far exceeds the limits of the physical world and which can be accessed far faster than any physical search. Smartphones and other personal data-capturing and storage devices represent an unprecedented new frontier in which the common law principles regarding search incident to arrest must be judicially reassessed. Trying to protect privacy in the digital world with concepts developed in the physical world will bring it to the brink of extinction, if not send it over.

Gold submitted that in the context of smartphones and personal digital devices generally, the search incident to arrest common law rule has now become unreasonable, and a search of such devices requires a search warrant. He argues that digital evidence can be immediately protected and secured by the simple expedient of wrapping it in aluminum foil or, more “officially”, putting it in a “Faraday bag” (i.e., a bag in which to preserve the data contained in the device and protect it against the possibility of being erased from an external source). Then a warrant could be sought to search the contents of the phone. This approach, said Gold, would not only be simpler, but safer, from the standpoint of not only the accused, but the officer as well. Not only would the data be preserved, eliminating the risk of an officer accidentally destroying evidence, but the officer would not need to worry that the scope of the search undertaken indeed exceeded the scope of a “cursory search”, with each press of a button and each swipe of a screen.  Interestingly, one published online law enforcement community that Gold referred to actually recommends to police officers not to attempt to look through the phone on scene, and suggests that “by navigating through the phone, you are also altering evidence”. The same source sets out the proper handling of such devices, including placing it in a Faraday bag, aluminum foil, or other signal-blocking container.

At para. 52, Gold argues:

Rather than have an officer make the judgment call at the time of arrest as to the search of a person’s phone – a device now recognized to be complex and to contain data and information far beyond whatever else might be carried around on an individual’s person or in the “immediate surrounding area” – it would be more prudent to simply seize the phone, preserve the data immediately, and have a judicial officer review the Information on oath and decide whether a warrant to search the device ought to be issued. The judicial officer could then not only decide whether or not reasonable and probable grounds to issue a warrant exists, but, as important, if reasonable and probable grounds for a warrant existed, impose such circumstances or conditions for the device search, thereby giving the police the appropriate amount of access to the device, while still protecting the individual’s privacy interests. The search of a device can be limited or compartmentalized to those areas which are deemed to be of potential relevance to the investigation. In the case of digital devices, the interceding judicial officer contemplated by Southam is of the greatest significance possible.

At para. 53:

It is the Respondent’s position that, even under the present law, the search of the cell phone violated [Liew]’s (and by extension, Mr. Yu’s) section 8 Charter rights against unreasonable search and seizure, as found by the learned trial judge. In the alternative, it is respectfully submitted that the time has now come to declare a bright line rule: while cell phones and other digital data devices may be seized upon arrest, they may not be searched unless and until a search warrant for the device itself is granted. This is easily facilitated by the rudimentary technology (in the form of Faraday bags or simple aluminum foil) required to preserve the evidence, and to rapidly obtain judicial authorization (in the form of telewarrants). This would come at no cost to legitimate police interests or the public interest. The only cost will be enforcing respect for the fundamental constitutional protection of privacy.

And finally, at para. 54:

Presumptively unreasonable warrantless searches and seizures are lawful only when the public interest implicated outweighs the risk to privacy. It is accepted that physical seizure of a cell phone along with any other personal property of an arrestee is not an issue. The public interest underlying the police wish to search a personal digital device or smartphone is completely respected by a very limited emergency exception in relation to physical safety and simple use of aluminum foil or a Faraday bag to “freeze” the device and its contents pending a search warrant application. On the other hand, the risk to personal privacy having regard to the ever evolving nature of such devices is intolerable if the police can unilaterally control the search decision.

Gold submits that private digital material on a personal digital device, in their highly private, unrestricted nature should not be the subject of access and thereafter permanent availability to the police (even if only in memory) on a warrantless basis, thus never ending the privacy invasion.  Stay tuned for the decision!

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Implementational duty on police pursuant to s. 10(b) of the Charter with respect to internet access considered

R. v. Welty 2014 ABPC 26 – another case out of the Alberta Provincial Court has again considered whether or not the implementation duties of s. 10(b) of the Charter arising from R. v. Bartle, [1994] 3 SCR 173 places an obligation on the police to tell detainees that they have the right to access the internet to facilitate contact with counsel?  For those of you following the blog, the other case in this regard coming out of Alberta was R. v. McKay, 2013 ABPC 13 (that decision was appealed by the Crown, the appeal has been heard, and the decision is on reserve).  The case at hand was another impaired driving case (as was McKay), but I will not go into the facts of the case, but rather focus upon the internet use consideration.

Before I get into the decision, this is a quote from the Judge in this case:

As a trial judge, my function is to adjudicate on the facts of the case before me. As part of that function, I am required to interpret the law and apply it to the facts in the matter before me. In the Provincial Court, any rulings made on the law bind only the parties who are before the Court in the matter being tried. Those rulings may have a persuasive effect in other cases in other Courts, but their ability to influence other Courts is a function solely of the soundness of the reasoning employed in making the ruling. If another judge follows the reasoning of a ruling made in a Provincial Court, it is because the reasoning behind the ruling was found to be compelling, and not because the judge was required by law to follow it.

As part of my duty to interpret the law and apply it in the case at bar, I am required, and have the authority, to determine whether the Charter rights of Mr. Welty were violated, and if so, what remedy, if any, is appropriate. However, if I determine, for example, that the actions of the police officer violated Mr. Welty’s section 10(b) Charter rights, that determination only affects Mr. Welty. It does not mean that, as a matter of law, identical actions taken in some other case by another police officer in respect of an accused in the same position as Mr. Welty must be found to constitute a section 10(b) Charter breach. That will be for determination on another day by the judge hearing that particular matter. Whether that judge reaches the same conclusion which I have reached will entirely be up to that judge at the time he or she hears that case.

The Trial Judge said it is clear that the obligations imposed by section 10(b), including the duties imposed on the police, have evolved since the advent of the Charter. In the early 1990s, significant changes were made to the informational component of section 10(b) in the cases of Brydges, Bartle, and Prosper. When provinces started offering duty counsel and legal aid services, the courts adapted, and held that if such services existed, then the detainee must be informed of them. This was a reasonable change in the law, and one which was a reasonable and logical reflection of the changes in society. The question is whether the role currently played by the Internet in the life of those living in Canada is such that it requires specific recognition in the jurisprudence defining the scope of section 10(b) of the Charter.

The Judge said in relation to the specific information given about the resources which will be made available to arrestee/detainee, the Courts in Alberta have required the police to tell an arrestee/detainee that he or she will have access to a
telephone and telephone directories, and access to Legal Aid duty counsel. Arrestees/detainees have historically been told that they will have access to
telephones and telephone directories because those items have been the usual
resources used by people when they are trying to find a service and an immediate
method of contacting that service. Resort to the Internet’s World Wide Web is at least as important a resource as telephone directories for those seeking information about services and seeking contact with them according to the Judge. Since a section 10(b) Charter violation will usually be found if a arrestee/detainee is prevented from using his or her cellular telephone as he or she exercises the rights guaranteed by section 10(b) of the Charter, the Judge said it follows that one must consider whether it is necessary that a reference to accessing that resource be included in the informational component of the duty imposed on the police by section 10(b).

Accordingly, the Judge was satisfied that an arrestee/detainee who wishes to use his or her cellular telephone (or similar electronic device which has independent
access to the Internet) for the purpose of facilitating his or her exercise of his or her section 10(b) Charter rights should be permitted to do so. If the police were to prohibit such a use, absent urgent and compelling reason, then in the judge’s view, there would be a prima facie violation of the person’s section 10(b) Charter rights. It was shown from the cases discussed, and indeed it was stated by the officer in the case at bar, that most police officers do not prevent an arrestee/detainee from using his or her cellular telephone in the exercise of section 10(b) rights.

Consequently, the Judge said not telling an arrestee/detainee that he or she may have access to his or her cellular telephone or other electronic device sends the erroneous message that access to those resources is unavailable. It is not sufficient, for the purposes of ensuring effective access to a fundamental Charter right, to rely on individuals being bold enough to make inquiries as to whether they may use their cellular telephones or electronic devices. The informational component of section 10(b) should be expanded to include advice to the arrestee/detainee that if he or she has with him or her a cellular telephone or other electronic device which is independently capable of accessing the internet (i.e., can connect to the internet without using some other person’s internet access), the arrestee/detainee may use that device and access the internet for the purpose of exercising his or her right to consult with legal counsel.

The following is an example of how that information could be incorporated into
the currently used section 10(b) advice according to the Judge (bearing in mind the Charter warning currently given in Alberta):

You have the right to retain and instruct a lawyer without delay. This means that before we proceed with our investigation you may call any lawyer you wish or a lawyer from a free legal advice service immediately. If you want to call a lawyer from a free legal advice service, we will provide you with a telephone, and you can call a toll-free number for immediate legal advice. If you wish to contact any other lawyer, a telephone and telephone book will be provided to you. If you have a personal cell phone or electronic device you may use it to contact any lawyer. If your cell phone or electronic device allows you to access the internet, you may use it to access the internet to search for, and contact a lawyer. If you are charged with an offence, you may apply to Legal Aid for assistance.

The Judge said there is currently no binding authority that requires the police to provide to detainees access to the internet in order for the implementational component of section 10(b) to be satisfied. Section 10(b) does not impose a positive constitutional obligation on governments to ensure that detainees have access to free summary legal advice. Nor does it impose on governments a substantive obligation to ensure that duty counsel is available to detainees. By extension, said the Judge, it might be inferred that section 10(b) also does not require that governments provide free internet service to detainees at police detachments/stations.

In this case, the Judge ruled that the implementational duty imposed on the police by section 10(b) of the Charter should be expanded to require the police to provide an arrestee/detainee with the means of accessing the Internet (i.e., the provision of a device which was connected to the Internet). This is a trend which will continue and progressive police forces will endeavour to be ahead of this curve (as cited from R. v. Cornish, 2013 ABPC, at paragraph 10, in this case).

On a finishing note, the Trial Judge ruled that the admission of the Certificate of Analysis as evidence in the trial would not bring the administration of justice into disrepute and the Certificate was admitted into the trial.  The Judge said there is currently no case law explaining to the officer that he was required to provide to the accused the information that he would be able to use his cellular telephone to access the Internet, so the breach was committed in good faith and the Charter-infringing conduct was not serious. “[S]uch a sweeping change in policy should, in my respectful submission, come from a superior court.” (as cited from R. v. Franczak, 2013 ABPC 226).

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