Monthly Archives: June 2014

Trial Judge’s decision not to exclude breath samples upon Grant analysis following a s. 10(b) Charter breach overturned and a new trial was ordered.

Surprisingly, I am still getting questions regarding the “Prosper Warning” from experienced officers in the field when this has been law and practice since 1994. I am not sure if there has been an issue with training in previous years during recruit training or agency training, or misinformation circulating due to the practice of not even having the “Supplemental-Warning” on the pre-printed Charter/Caution cards given to us by some of our agencies and officers not taking it upon themselves to ensure they have one.  Whatever the issue, in my role, I can only assist with the educational, training, and informational aspect of it, and I have no control over the latter (warning not included in the pre-printed cards). In the end, as officers, we are ultimately responsible for our legal knowledge and ensuring we have this “Supplemental-Warning”, for example, to use.  After-all, we are the ones on the witness-stand testifying, having to articulate and justify our actions on a daily basis, and being scrutinized by the courts in the process.  It’s not easy by no means, so if I can help IN ANY WAY, I will do my best when asked.

Hopefully, no one has been offended by my statements above, but I feel passionate about educating officers on such issues so that we don’t lose cases on cross-examination (or appeal) when a good defence counsel calls us on our actions, or non-actions, when maybe it could of been avoided if we had the training and information given to us to draw upon…..that’s now within my role and hopefully I can live up to the expectations. On to the case that coincidentally was decided just as I’ve been getting questions about this issue that will hopefully reaffirm why I feel this information needs to get out there to each of us. This is by no means meant to make anyone look bad or offend anyone, but rather for educational purposes and information like all my blog posts.

R. v. Deleersnyder 2014 ONSC 3207 – in this summary conviction appeal, the appellant appealed his conviction on a charge of having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood while operating a motor vehicle, contrary to s. 253(1)(b) of the Criminal Code, made by the Ontario Court of Justice.

On February 19, 2009 at 2:28 a.m. the appellant was stopped by an officer with the Sarnia Police Services. The appellant at the time was operating his motor vehicle. As a result of information received by the officer from the appellant, a demand was made pursuant to which the appellant provided a sample of his breath into an approved screening device. The analysis of the sample registered as a “failure” and at 2:35 a.m., and the officer arrested the appellant for operating a motor vehicle while the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. Following his arrest, the appellant was advised of his rights to counsel at 2:37 a.m. The appellant indicated that he understood the rights given and that he did not wish to contact a lawyer. The arresting officer made a demand for samples of the appellant’s breath for the purposes of analysis and the appellant was taken to the Sarnia Police Headquarters at 2:43 a.m., arriving at 2:49 a.m.

On his arrival at the police station, the appellant was paraded by the arresting officer before the supervisor, a Staff Sergeant, at 2:55 a.m. The arresting officer advised the Staff Sergeant as to the time and reason for the appellant’s arrest, that the appellant had been given his rights to counsel, and that the appellant had declined a lawyer. The arresting officer conceded during cross-examination that he had heard the Staff Sergeant ask the appellant if the appellant wished to call a lawyer, to which both officers heard the appellant’s response of “not yet”. Neither officer asked the appellant anything about contacting a lawyer or to clarify the words spoken by the appellant in response to the question from the Staff Sergeant, nor did either officer advise the appellant that the police were required to hold off attempting to obtain evidence from the appellant until the appellant had had an opportunity of contacting counsel (Prosper-Warning).

The arresting officer turned the appellant over to the breath technician at 3:04 a.m. The arresting officer advised the breath technician in the presence of the appellant as to the time and reasons for the appellant’s arrest and that the appellant had been given his rights to counsel and that the appellant had declined a lawyer. The arresting officer did not advise the breath technician that the appellant had replied “not yet” to the Staff Sergeant’s question about contacting a lawyer.

It was the Staff Sergeant’s evidence that in accordance with the usual procedure, he advised the appellant of his rights to counsel and he asked the appellant if he understood his rights to counsel to which the appellant answered that he did. He asked the appellant if he wished to contact a lawyer and the appellant replied “not yet” to him. It was the Staff Sergeant’s evidence that he took this to mean that the appellant did not want to speak to a lawyer, but perhaps he did later. The Staff Sergeant did not seek any clarification from the appellant as to the words “not yet”. Further, the Staff Sergeant did not discuss the appellant’s response “not yet” with the arresting officer, who was present. Further still, the Staff Sergeant did not relay this response to the breath technician. The Staff Sergeant admitted that the appellant’s answer “not yet”, was something that should be given to the technician who was doing the breath test. Having admitted that he should have advised the technician about the appellant’s answer, the Staff Sergeant did not explain why he did not inform the breath technician about the appellant’s answer “not yet”.

It was the arresting officer’s evidence that the testing procedure conducted by the breath technician took until 3:31 a.m. During this time, the arresting officer remained in the breath room, within earshot of the appellant and the breath technician, and during that time the arresting officer did not hear anything from the appellant about contacting a lawyer.

It was the breath technician’s evidence that after he took custody of the appellant, he gave the appellant his rights to counsel. The appellant stated that he understood the rights given to him and that in response to a question from the breath technician as to whether he wished to call a lawyer, the appellant stated that he did not wish to call a lawyer. It was also his evidence that at no time while the appellant was in his custody did the appellant ask for a lawyer. Although the breath technician conceded that he did not have a note as to the precise words spoken by the appellant in response to the question as to whether the appellant wished to speak to counsel, he was clear that the appellant would have been given an opportunity to contact counsel had the appellant requested to do so.

It was the appellant’s evidence that he was reasonably confident that he had told the breath technician that he did not have a lawyer rather than telling the breath techncian that he did not wish to call a lawyer. The evidence of the breath technician contradicted the appellant; it was the breath technician’s evidence that the appellant had indicated that he did not wish to call a lawyer. Further, it was the appellant’s evidence that he had not been told by the breath technician that there was a 1-800 number available to call duty counsel. In his evidence, the appellant conceded that he had not asked the police to assist him in contacting counsel. The appellant testified that he had been treated decently throughout this process. The appellant agreed that he could have had a private call to a lawyer if he wished to contact somebody, but that he had refrained from doing so because he was nervous and upset and he did not want to say anything because he did not know what to do.

The certificate of analysis as to the appellant’s breath samples, as completed by the breath technician, indicated results of 120 milligrams of alcohol in 100 millilitres of blood for both breath samples.

The main issue on appeal related to the first of the Grant factors: the seriousness of the Charter – infringing state conduct. The central argument advanced by the appellant was that both the Staff Sergeant and the arresting officer were aware of the appellant’s “not yet” response given to the Staff Sergeant in response to the question as to whether the appellant wished to contact a lawyer now. The appellant submits that the “not yet” response did not constitute a waiver by the appellant of his rights to counsel, and created an obligation on both officers to “hold off” on the process of obtaining breath samples until the appellant had an opportunity to contact a lawyer. Further, the appellant submits that neither officer informed the breath technician as to the “not yet” response; but rather the arresting officer had indicated instead that the appellant had waived his right to counsel (referring to the appellant’s response while at the roadside).

In relation to credibility, the trial judge concluded that the appellant’s evidence on the voir dire was vague, lacking in detail and not reliable. The trial judge found that the evidence of all three police officers was consistent and the trial judge accepted their evidence. The ONSC ruled there was no basis in this appeal to disturb those findings. The trial judge found that the appellant’s response of “not yet” to the Staff Sergeant’s question as to whether he wished to contact a lawyer now, was ambiguous and did not constitute a waiver by the appellant as to his s. 10(b) right to counsel. This led to the trial judge’s further findings that: the Staff Sergeant ought to have cleared up the ambiguity and he did not; that although the primary responsibility to clean up this ambiguity fell to the Staff Sergeant, that the arresting officer should have cleared up the ambiguity and he did not do so. The trial judge accepted what the arresting officer told the breath technician about the appellant’s arrest, including him advising the breath technician that the appellant had declined his right to counsel at the roadside. In examining the fact that although the breath technician was not made aware of the “not yet” response by the appellant to the Staff Sergeant, the trial judge considered the fact that the breath technician independently advised the appellant of his right to counsel and that the appellant declined. Specifically, the trial judge considered whether the appellant’s response to the breath technician constituted a waiver of his right to counsel. The trial judge concluded that there was no waiver by the appellant stating as follows:

… While in other circumstances Mr. Deleersnyder’s response to [the breath technician] would constitute a waiver of the right to counsel, it cannot here. [The arresting officer and the Staff Sargent] had an obligation to advise the accused of their obligation to hold off on the next step in the investigation. This is the law according to Regina v. Prosper, a decision of the Supreme Court of Canada which creates three duties on the police:

(a) the duty to inform of the right of counsel,

(b) the duty to give a reasonable opportunity to consult counsel, and

(c) the duty to hold off in eliciting further evidence from an accused who has expressed a desire to consult counsel until such times as they have had that opportunity.

As an aspect of this latter duty, there is an additional component where an accused asserts the right to counsel and then indicates the change in that position. As stated by Mr. Justice Lamer in Prosper, and I quote:

At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity.

The trial judge then considered the failure of the police to hold off on further investigation, as follows:

… After advising Mr. Deleersnyder of his right to counsel, [the breath technician] received what appeared to him to be a clear waiver of the right to counsel. Since there was no clear waiver in response to the [Staff Sergeant’s] question, Mr. Deleersnyder should have been told by [the breath technician], or by someone, of the obligation on the police to hold off in the next step of the investigation. …

The trial judge found that the failure of the police to notify the appellant of this additional obligation to hold off was a violation of the appellant’s s. 10(b) right based on R. v. Prosper, [1994] 3 S.C.R. 236 (S.C.C.). Having found a violation of the appellant’s s. 10(b) right to counsel, the trial judge relied on the fact that the appellant waived his right to counsel at the roadside, and that the police had therefore complied with the appellant’s Charter-protected right to counsel. The trial judge reached this conclusion by finding that the Staff Sergeant, and also the breath technician, had no obligation to advise the appellant as to his right to counsel. The trial judge viewed the steps taken by the Staff Sergeant in advising the appellant of his right to counsel only “as a precautionary measure”. The trial judge reasoned that this step was indicative of a respect for the Charter-protected right of the appellant. The trial judge characterized the failure of the Staff Sergeant and the arresting officer to clarify what the appellant meant by “not yet”, as more indicative of inadvertence rather than an act showing “flagrant disregard” for the appellant’s rights.

The ONSC said with respect to a detainee’s waiver, once a detainee asserts a right to counsel, there must be a clear indication that the detainee has changed his or her mind and the Crown bears the burden of establishing an unequivocal waiver: R. v. Prosper, at para.45. With respect, Justice V. Mitrow J. of the ONSC found that the trial judge’s conclusion that the police conduct was inadvertent and on the lower end of the spectrum of seriousness to be unreasonable. According to Justice Mitrow, the trial judge focused on the informational aspect of the state’s obligation towards the appellant’s s. 10(b) right to counsel. This occurred when the trial judge considered that after declining his right to counsel at the roadside, the appellant was later advised of that same right by both the Staff Sergeant and the breath technician even though there was no obligation to do so. The trial judge, in effect, found that this conduct mitigated the failure of the police to properly respond to the “not yet” statement by the appellant, leading the trial judge to find that the police conduct was inadvertent. The trial judge, in emphasising the informational component of the appellant’s right to counsel, gave insufficient or no consideration to the breach of the state’s obligation regarding the implementational component of the appellant’s s. 10(b) right.

Justice Mitrow said the trial judge’s finding “… that there was no need for any further advice by the police with respect to the Charter of Rights” was unreasonable given the failure of the Staff Sergeant and the arresting officer to properly respond to the appellant’s “not yet” response, and their failure to tell the appellant of the police obligation to “hold off”. In R. v. Grant, [2009] S.C.J. No. 32 , at para. 74, it was noted that state conduct resulting in Charter violations varies in seriousness from “inadvertent or minor violations” at one end of the spectrum to wilful or reckless disregard of Charter rights at the other end of the spectrum. Justice Mitrow said the totality of the aforementioned conduct, at least on the part of the Staff Sergeant and the arresting officer, was far more indicative as a minimum of negligence, not mere inadvertence. The trial judge’s reasons, as a whole, suggested that the police were viewed as acting in good faith, which Justice Mitrow found to be unreasonable based on the record and the trial judge’s findings of fact. Ignorance of Charter standards must not be rewarded, or encouraged, and negligence or wilful blindness cannot be equated with good faith: R. v. Grant, supra at para.75.

In view of the conclusion reached on the ground of appeal in relation to the seriousness of the police conduct, Justice Mitrow found that the appeal should be allowed and the conviction quashed, and a new trial was ordered before a different judge in the Ontario Court of Justice at Sarnia.

Advertisements

Leave a comment

Filed under APA Cadets, Impaired Driving, Recent Case Law, Section 10 Charter, Worthy of a Review

Arrest after vehicle stop based solely on the odour of burnt marihuana violated s. 9 of the Charter and the search incident to arrest violated s. 8. The resulting blood-alcohol readings were excluded.

R. v. Konior 2014 ONCJ 279 – this case involved an arrest for possession of a controlled substance and subsequently, an arrest for operating a motor vehicle after having consumed alcohol in excess of the legal limit following a failed roadside screening test.

The defendant was driving his pickup truck at 9:15 PM and he was stopped for using his cell phone. When speaking to Mr. Konior as he sat in his truck with the driver’s window down, the officer noticed a strong odour of burnt marihuana coming from inside the truck. He was asked if he had been smoking marihuana and he said: “Yes, at a friend’s house.” The officer formed reasonable and probable grounds to arrest him for possession of a controlled substance. Mr. Konior was asked to exit his vehicle and as he did, with his back to the officer, took something from his pocket and moved it to the front of his body. A male officer was called for assistance and he found a plastic baggie with marihuana inside the front of the shorts of the defendant. He was then handcuffed from behind.

In view of the small quantity of drug involved, and the fact that he had no criminal record, the officer decided not to charge Mr. Konior for possession, but told him that he would receive a ticket for using his cell phone while driving. As he was being released from inside the officer’s cruiser at 9:42pm, a strong odour of alcohol was detected, and despite denying consuming alcohol, the officer formed a reasonable suspicion that he had been driving with alcohol in his body. He was given a roadside screening test and failed, and was arrested for operating a motor vehicle after having consumed alcohol in excess of the legal limit. At the police station, his blood alcohol readings were 130 and 110 milligrams of alcohol in 100 millilitres of blood.

No defence evidence was called, but the defence had previously filed a Charter application alleging, in addition to other grounds, breaches of sections 8 and 9, and requesting an exclusion of all of the evidence obtained after the arrest of Mr. Konior.

For background information and to serve as a reminder to the cadet recruits, the onus is on the defence to establish a breach of sections 8 and 9 of the Charter on a balance of probabilities. However, if a search was conducted without a warrant, the Crown must prove, on a balance of probabilities, that the search was reasonable: R. v. Collins, [1987] 1 S.C.R. 265. If the search was unreasonable and a breach of section 8, the defence has the burden of establishing that the impugned evidence, if admitted, would bring the administration of justice into disrepute. On the trial proper, the Crown must prove the essential elements of the charges beyond a reasonable doubt.

The officer had no power to arrest the defendant for using his cell phone while driving. The Ontario Highway Traffic Act does not authorize a general power of arrest without warrant, except for those offences designated in section 217(2). Section 78.1, the provision concerning cell phones, is not included therein. The issue then is whether or not the officer had reasonable and proper grounds to arrest the defendant for possession of a controlled substance, based solely on the strong odour of burnt marihuana. The officer subjectively felt she had reasonable grounds to arrest Mr. Konior for possession of marihuana.

Concerning the objective grounds, the only basis for the arrest was the strong odour of burnt marihuana coming from the truck. The officer did not have to believe the explanation of having smoked some at a friend’s house, but there was no admission of present possession, nor was there evidence of drugs or drug paraphernalia in plain view. The area where Mr. Konior was stopped was not described as a known drug area. The ONCJ cited R. v. Polashek, [1999] O.J. No. 968 (C.A.), in which a police officer stopped a vehicle and smelled a strong odour of marihuana coming from inside the vehicle. There was no smoke and the officer could not tell if the odour was from fresh or burnt marihuana. When the officer told the driver he smelled this, he said “No you don’t.” The officer’s grounds for arrest were based on the smell, the driver’s verbal response, the area of Mississauga in which the stop took place, and the time of night. In paragraph 18, Rosenberg J.A., for the court, said as follows:

Thus, absent an error in principle, an appellate court is not entitled to interfere with the trial judge’s finding of reasonable grounds, unless that finding is unreasonable. If the trial judge’s reasons could be interpreted as finding reasonable and probable grounds solely on the basis of the odour of marijuana I would consider this an error in principle. However, as the excerpted passages from the evidence show, the officer did not rely solely upon the smell of marijuana and it would have been unreasonable for the trial judge to ignore that evidence in reaching his conclusion on both the objective and subjective grounds.

(See also R. v. Janvier, (2007), 227 C.C.C. (3d) 294 (Sask. C.A.)).

In the case at bar, Justice A.D. Cooper J. said it was very clear that the reasonable and probable grounds were based solely on the strong odour of burnt marihuana coming from inside the truck. In these circumstances, there was no objective basis to conclude that Mr. Konior was in possession of the drug in his truck said the judge. Therefore, since the search was executed without a warrant, the Crown must prove on a balance of probabilities that the search was reasonable. The judge found as a fact that the Crown had not shown the search to be reasonable, and there was a breach of section 8 of the Charter.

The ONCJ turned to determining whether the arresting officer had reasonable grounds to arrest Mr. Konior for impaired operation.  In doing so, it cited R. v. Khan, [2010] O.J. No. 3861 (O.C.J.), which reviewed the relevant legal principles that were recently summarized by Durno J., sitting ad hoc, in the Ontario Court of Appeal decision in R. v. Bush, 2010 ONCA 554 at paras. 36-40:

Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol in his or her body, the standard for an Approved Screening Device (roadside) demand pursuant to s. 254(2) of the Criminal Code. At the other end of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator’s ability to operate a motor vehicle was impaired by the consumption of alcohol or that the driver’s blood alcohol concentration was over the legal limit.

– Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds. Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer “has reasonable and probable grounds to believe that a person is committing or at any time within the preceding three hours has committed” the offence of impaired operation or driving ‘over 80.’ (emphasis added) Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima face case: see Censoni at para. 31 and R. v. Shepherd 2009 SCC 35 at para. 23.

– Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw, [1995] 1 S.C.R. 254 at para. 51. The officer’s belief must be supported by objective facts: R. v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241 at p. 250.

– In Storrey v. The Queen, supra at 323, Cory J. articulated the overarching context of drinking/driving investigations – the need for reasonable balance between the individual’s rights to liberty and the need for society to be protected from the menace of impaired drivers. Every year, drunk driving leaves a terrible trail of death, injury, and destruction: The Queen v. Bernshaw, supra at 204; Regina v. Saunders (1988), 41 C.C.C. (3d) 532 (Ont. C.A.) at 537, 539, 541 per Cory J.A. (as he then was). [emphasis added]

– In Storrey, Cory J. addressed the importance of the requirement that officers have reasonable grounds as follows at p. 249-250:

  • The importance of this requirement to citizens of a democracy is self-evident. Yet society also needs protection from crime. This need requires that there be a reasonable balance achieved between the individual’s right to liberty and the need for society to be protected.

– The determination of whether reasonable and probable grounds exist is a fact-based exercise dependant on all circumstances in a case. As well, the court should not lose sight of the fact that police officers in drinking and driving cases are involved in making quick and, hopefully, informed decisions as to whether there are reasonable grounds.

The defence requested the court to exclude all evidence obtained after arrest of the defendant. Since Mr. Konior was not charged with possession of a controlled substance, it was the blood-alcohol readings which were sought to be excluded. The ONCJ said the Polashek case was decided in 1999, and the law has been clear since then that the mere odour of marihuana, without anything else, is not sufficient to constitute reasonable and probable grounds to arrest someone. The judge said it is important for police officers to know what the law is and for the court to ensure that the law is followed. In all the circumstances, the judge found that the Charter-infringing state conduct was serious.

The police officers in this matter placed Mr. Konior under arrest and required him to take a roadside screening device test. He then was transported to a police station and compelled to submit to more breath testing. He was then given a 90 day administrative licence suspension and required to attend court, including attendance at this trial. It was the judge’s finding that the arrest and detention of Mr. Konior had a serious impact on his Charter-Protected Interests. Balancing all of the factors, the judge ruled that to admit any of the evidence obtained by the police after the unlawful arrest of the defendant, would bring the administration of justice into disrepute.

There had been a breach of sections 8 and 9 of the Charter of Rights and Freedoms and the blood-alcohol readings were excluded under section 24 (2) of the Charter. Because this evidence was excluded, the defendant was found not guilty of having operated a motor vehicle after having consumed alcohol in excess of the legal limit.

Leave a comment

Filed under Arbitrary Arrest or Detention, Impaired Driving, Recent Case Law, Search and Seizure

An odour of alcohol, bloodshot eyes, and slurred speech are grounds for a screening device demand, but not the breath demand.

R. v. Rideout [2013] N.J. No. 458 – a Newfoundland and Labrador Provincial Court Judge has ruled that while the officer had grounds to make an ASD demand, his grounds to give the breath demand were objectively deficient. The certificate of the qualified breath technician was therefore excluded as there was no evidence that the accused’s ability to operate a motor vehicle was impaired, even to a slight degree. The charge was dismissed. As a reminder, this is a Provincial Court decision, so it has no binding effect, but I have included it in the blog post for informational purposes on the continuing technical nature of impaired driving investigations.

A five year member of the Royal Newfoundland Constabulary noticed a vehicle being operated without tail lights at 02310 hours, so he stopped the vehicle. He approached the driver’s side window, which was down. He noted a smell of alcohol coming from the inside of the vehicle. As he got down lower, he determined that there was a strong smell of alcohol coming from the driver. He indicated the driver’s eyes were bloodshot and his speech was slurred when the driver was looking for his licence, but his speech was not slurred during any other conversation. The driver also had difficulty locating the registration. As a result of these observations, he asked the driver to go to the police vehicle.

He placed the driver in the rear of the police car and noticed a stronger smell of alcohol coming from the driver. He decided to dispense with a demand for an ASD and made a breath demand instead. He stated that his grounds for doing so were: (1) strong smell of alcohol; (2) bloodshot eyes; and (3) slurred speech. The officer could not recall what he said to the driver re: accompanying him back to the police vehicle. He also did not comment about the nature of the driver’s driving. Under cross examination, he was questioned about his “Impaired Driver’s Investigative Notes.” He noted extreme bloodshot eyes; slurred speech (checked as “stuttering”). He observed that the driver was cooperative and polite. He was neither stumbling, nor staggering. His face was flushed. The driver stated that he had approximately four beer.

The defence argued that there were no subjective grounds and no objective grounds for the demand. She argued that the totality of the circumstances did not indicate that Mr. Rideout’s ability to drive was impaired by drugs or alcohol. There was nothing in his pattern of driving to indicate impairment. She cited in support of her argument R. v. Bernshaw, [1995] 1 S.C.R. 254, par. 24; R. v. Foley, [2010] N.J. No. 136 (NLPC), per Skanes P.C.J.; R. v. Rose, [2003] N.J. No. 215 (NLPC), per Gorman P.C.J.; and R. v. White, [2004] N.J. No. 21 (NLSCTD), per Leblanc J. She argued that it might be arguable that subjective grounds to give the breath demand may have existed. However, objectively, the grounds were clearly not there. The officer had no recollection of what he said to Mr. Rideout as the reasons for going back to the police vehicle. There was no entry in his notes with respect to this. She argued that the officer violated the principles outlined in R. v. Mann, [2004] S.C.J. No. 49 for investigative detention; that the purpose for placing Mr. Rideout in the police vehicle was to further the investigation. Therefore, Mr. Rideout’s rights pursuant to s. 9 and s. 10 (a) were violated.

The Crown argued that there were indeed reasonable grounds to give the breath demand. He cited in support the Supreme Court of Canada decisions in R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, R. v. Aucoin, 2012 S.C.C. 66, [2012] 3 S.C.R. 408, R. v. Orbanski, [2005] 2 S.C.R. 3, R. v. Shepherd, 2009 SCC 35, along with the Ontario Court of Appeal decision in R. v. Bush, [2010] O.J. No. 3453. He said that the officer clearly had subjective grounds to give the breath demand. He said there was a strong smell of alcohol which became stronger when Mr. Rideout was placed in the police vehicle. He also cited that Mr. Rideout had “extreme bloodshot eyes.” The Crown acknowledged that there was no erratic driving. He was relatively silent with respect to the discussion about slurred speech. He made no comment about Mr. Rideout’s ability to walk as he went back to the police vehicle.

Whether reasonable and probable grounds exist for the breath demand is a fact-based exercise dependent upon all the circumstances of the case. The totality of the circumstances must be considered. (See R. v. Shepherd, supra, at par. 21). At par. 23, McLachlin C.J. and Charron J. for the court, said:

…the officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence of impaired driving or driving “over 80” before making the demand. He need not demonstrate a prima facie case for conviction before pursuing his investigation.

The Provincial Court judge ruled that an assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driving scorecard with the list of all the usual signs of impairment and counsel noting which ones are present or absent. (See R. v. Bush, [2010] O.J. No. 3453, par. 56; R. v. Costello (2002), 22 M.V.R. (4th) 165 (ONCA); R. v. Censoni, [2001] O.J. 5189 (ONSupCtJus)). Reasonable grounds in the content of a s. 254 (3) breath demand is not an onerous threshold. It must not be inflated to the content of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom (R. v. Censoni, supra, at par. 43). The test is whether, objectively, there were reasonable and probable grounds to believe the suspect’s ability to drive was even slightly impaired by the consumption of alcohol. (R. v. Stellato, 1993 CanLII 3375 (ONCA) affirmed [1994] 2 S.C.R 478).

Judge J.G. Walsh said it is important to distinguish between operating a motor vehicle after consuming some alcohol and operating a motor vehicle after consuming alcohol such that one’s ability to operate a motor vehicle is impaired. (R. v. Stellato, supra). The indicia noted by the officer unquestionably gave him grounds to make an ASD demand. However, the indicia that he noted for giving the breath demand fall short of meeting the objective standard. He indicated that he observed a smell of alcohol that got stronger when Mr. Rideout was placed in the rear of the police vehicle. He also said that Mr. Rideout’s eyes were bloodshot. The references to slurred speech were limited by the officer to the short discussion about the request for his driver’s licence. It was noteworthy, said the judge, that the discussion about the tail lights being off did not lead to any notice of slurred speech.

Therefore, the judge concluded that the officer’s grounds for giving the breath demand were only sufficient to have made an ASD demand and were, objectively, insufficient to have gone directly to the breath demand. There was no notice of erratic driving. There was no notice of any difficulty in walking or coordination. There was only a very brief reference to slurred speech. There was no reference to Mr. Rideout’s eyes being glossy in addition to bloodshot. There was no reference to Mr. Rideout’s face being flushed. Objectively, while the “checklist” approach has been rejected by a number of courts, as noted earlier, the judge said he would have expected more indicia of impairment than offered by the officer in his evidence.

As a result, the judge concluded that there were insufficient grounds to make the breath demand. Therefore, the certificate of the certified breath technician was inadmissible. Finally, with respect to the s. 253(1)(a) offence, the judge was not satisfied on the evidence that Mr. Rideout’s ability to operate a motor vehicle was impaired even to a slight degree and he was left with more than a reasonable doubt. That charge was dismissed.

Leave a comment

Filed under Impaired Driving, Recent Case Law

Police are not entitled to search a blackberry incident to arrest.

R. v. Mann 2014 BCCA 231 – this was an appeal from a conviction by a judge without a jury of multiple charges related to a kidnapping. The appellant was charged as the third kidnapper in a kidnapping that occurred in 2006. He appealed his conviction on three grounds (ground two is what I will be discussing in this blog post). The appellant claimed the trial judge erred in finding the searches of two BlackBerry devices seized during his arrests were valid under the common law power of search incident to arrest. The police downloaded the full contents of the BlackBerrys without obtaining a search warrant. The appellant argued these warrantless searches violated his right to be free from unreasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms.

During the police investigation of the kidnapping, the appellant was arrested twice; on June 8 and June 28, 2006. During each of the arrests, a BlackBerry device was seized by police. BlackBerry #1 was submitted for analysis at the RCMP’s Technological Crime Unit in Ottawa on June 13, 2006. The cell phone could not be analyzed because it was password protected. It was submitted for analysis again in July 2008. Data extraction was completed by August 6, 2008. The recovered user data included the text of 72 messages received or sent on June 27 and 28, 2006, 22 of which the Crown relied on in its case against the appellant. BlackBerry #2 was submitted for analysis on July 4, 2006. Data was extracted on August 26, 2006. The data recovered included the text of 269 messages received or sent by the user, 81 of which the Crown relied on in its case against the appellant. No search warrant was sought or obtained with respect to the searches of the two BlackBerry devices.

The defence challenged the lawfulness of the warrantless searches of the contents of the BlackBerry devices. The appellant argued, as he did on appeal, that the common law power of the police to perform a search incident to arrest does not extend to a “highly intrusive” search that risks the collection of private information stored in a mobile communications device such as a BlackBerry. He claimed further that the searches were unreasonable because in the course of extracting data from BlackBerry #1, it was physically destroyed, and because the searches of the BlackBerrys were temporally disconnected from the arrests. The trial judge followed the decision in R. v. Giles, 2007 BCSC 1147, in finding the warrantless searches were lawful searches incident to the arrests. Giles also dealt with a warrantless search of a BlackBerry device seized during the arrest of the accused. In Giles, Madam Justice MacKenzie (as she then was) held that the search did not fall outside the scope of a search incident to the arrest of the accused on serious drug charges. She found the search of the BlackBerry was “akin to looking inside a logbook, diary, or notebook found in the same circumstances” (at para. 56), and “[t]he capacity of this BlackBerry to potentially store volumes of information does not, in my view, change the character of the search from being lawful as incident to the arrest, into a search that required a warrant” (at para. 63).

The appeal to the BCCA started with an analysis that generally requires prior authorization in the form of a warrant, as warrrantless searches are presumed to be unreasonable: Hunter v. Southam, [1984] 2 S.C.R. 145 at 160-161. Where a search is carried out without a warrant, the Crown has the burden of showing, on a balance of probabilities, that the search was reasonable. A warrantless search will be reasonable if it is authorized by law, if the law itself is reasonable, and the manner in which the search was carried out is reasonable: R. v. Collins, [1987] 1 S.C.R. 265 at 278. The power to search incident to arrest without a warrant is a well-established exception to the requirement for prior judicial authorization for a valid search. The Supreme Court of Canada described the principles underlying the power in Cloutier v. Langlois, [1990] 1 S.C.R. 158 and explained them further in R. v. Caslake, [1998] 1 S.C.R. 51.

In applying these principles to the search of smartphones, the courts have considered the individual’s privacy interest in the information contained in such devices, the purpose for the search, and the connection of the search to the arrest in time and distance. Giles was an early case that considered the scope of the power to search incident to arrest in relation to the search and seizure of smartphones. Two years later, in R. v. Polius, [2009] O.J. No. 3074 (S.C.J.), police seized the accused’s cell phone on his arrest, searched the cell phone to find its number, and used that information to obtain a production order under s. 487.012 of the Code to acquire his cell phone records. Justice Trafford of the Ontario Superior Court held that the seizure of the accused’s cell phone on his arrest for counselling murder was not lawful because the arresting officer did not have a reasonable basis to believe that the cell phone may contain evidence of the alleged offence. Justice Trafford went on to consider the scope of the power to search an item seized incident to an arrest. He expressed the view (at para. 41) that a search warrant was required to examine an item beyond a cursory examination. In particular, he found that the deeply personal nature of the information in a cell phone, computer or other electronic device implicated a range of privacy interests protected by s. 8 of the Charter.

The following year, in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (which did not concern a search incident to arrest), the Supreme Court of Canada noted the high degree of privacy afforded to the information in an individual’s computer, stating (at para. 2): “It is difficult to imagine a search more intrusive, or invasive of one’s privacy than the search and seizure of a personal computer.” Next chronologically, the Ontario Court of Appeal considered the scope of a search incident to arrest in relation to cell phones in R. v. Manley, 2011 ONCA 128 and R. v. Fearon, 2013 ONCA 106. In both cases, the Court considered, but neither adopted nor rejected, Trafford J.’s views expressed in Polius on the necessity of a warrant to conduct more than a cursory search of a cell phone. These cases were decided after the trial judge’s ruling in this case. R. v. Fearon2013 ONCA 106, raised similar issues. In that case, police arrested the accused for armed robbery and seized a cell phone. The arresting officer examined the contents of the cell phone (which was not password protected) and found incriminating photographs and a text message. The cell phone was searched further during the night and the next morning as the investigation continued, but no more evidence was found. Months later, the police obtained a search warrant to search the phone again. The trial judge held the police reasonably believed the examination of the cell phone contents would yield relevant evidence, and concluded there had been no breach of the accused’s s. 8 Charter right. On appeal, Justice Armstrong upheld the trial judge’s conclusion that the cursory search of the cell phone immediately following the arrest was a lawful search incident to arrest (at para. 57). He had more difficulty with the later examinations of the contents of the cell phone at the police station, and expressed the view that police should have obtained a warrant for these further searches. He deferred to the trial judge’s findings, however, that the examination of the cell phone’s contents at the police station was connected to the search at the scene of the arrest (at para. 58).

All of these cases were thoroughly canvassed in R. v. Hiscoe, 2013 NSCA 48, where Justice Oland commented (at para. 59):

In the result, the decisions of the Ontario Court of Appeal in Manley and Fearon neither approved – nor rejected – the approach in Polius. When the judge here gave his voir dire decision, there were two main lines of authority: one based on the British Columbia decision in Giles which upheld a full search of cell phone contents without a warrant, and one based on the obiter dicta in the Ontario decision in Polius which supported only a cursory search before a full search, if warranted. There were no decisions of any Canadian appellate court of persuasive authority.

The trial judge held that police violated the accused’s s. 8 Charter right. He determined that police were authorized to conduct a cursory review of the appellant’s text messages upon arrest and later that day, but concluded the full content download or “data dump” was beyond the scope of a search incident to arrest. The trial judge found that the month delay between the seizure of the phone and the full data retrieval “reduces any connection with the arrest” (Hiscoe at para. 63 quoting R. v. Hiscoe, 2011 NSPC 84 at para. 86). The Court of Appeal upheld the trial judge’s ruling. Justice Oland for the Court emphasized the individual’s interest in the protection of his or her right to privacy from “unjustified state intrusions” (at para. 69), with particular reference to the impact of changing technology (at para. 70).

In R. v. Vu2013 SCC 60, [2013] 3 S.C.R. 657, released after Hiscoe, the Supreme Court of Canada reiterated the heightened privacy interests individuals have in the contents of computers and cell phones, echoing Morelli (at paras. 39-44), and held (at para. 45):

The animating assumption of the traditional rule — that if the search of a place is justified, so is the search of receptacles found within it — simply cannot apply with respect to computer searches.

Vu did not deal with a search incident to arrest. Justice Cromwell limited his reasons to the scope of the appeal, stating (at para. 63):

… I do not, by way of these reasons, intend to disturb the law that applies when a computer or cellular telephone is searched incident to arrest or where exigent circumstances justify a warrantless search. Rather, these reasons relate to those situations where a warrant is issued for the search of a place and police want to search a computer within that place that they reasonably believe will contain the things for which the search was authorized …

In R. v. Vye2014 BCSC 93, released in January of this year, Mr. Justice Thompson did not follow Giles, Mann and R. v. Dhillon, 2013 BCSC 869 , but, based on the findings in Vu concerning the heightened privacy in computers and cell phones, concluded (at para. 29):

Accordingly, the foundational pillars of the reasoning in Giles–that is, the notion of a cellular phone search being of a lesser order of invasiveness than other highly invasive types of searches, the conclusion that a cellular phone ought not to be treated differently than traditional receptacles, and the assertion of the pointlessness of allowing the police to seize a cellular phone without an accompanying power to search–have been overtaken by the reasoning in the unanimous Supreme Court of Canada judgment in Vu.

The police in Vye searched the accused’s “iPhone 4” three times without a warrant, removing it from the accused’s pocket, doing a cursory search of the device the same day, and conducting a software-aided forensic examination nearly one year later. The accused did not contest the validity of the first two searches, but submitted his s. 8 Charter rights were breached by the software-aided forensic search. The trial judge agreed, finding the search was beyond the power to search incident to arrest because the police had not turned their minds to the permissible scope of the search before it was conducted; the search was unreasonable because it was overbroad; and, based on the reasoning in Hiscoe and Vu concerning the highly invasive nature of the search, the Crown required a warrant to conduct the forensic search of the content of the phone (at para. 8). The trial judge referred (at para. 37) to the ten-month delay between the arrest and the search as showing an absence of exigent circumstances and supporting his conclusion that prior authorization was required. The trial judge said: “[As] prior authorization was feasible … I can see no principled reason not to require the police to obtain a search warrant before conducting such a potentially invasive search as the download of contents of a smartphone seized upon arrest” (at para. 37). He quoted, in further support of his conclusion, the reasons of Justice Dickson (as he then was) in Hunter v. Southam Inc. (at 161): “[W]here it is feasible to obtain prior authorization, I would hold that such authorization is a precondition for a valid search and seizure”.

Back to the case at hand, at the time the trial judge made his ruling in this case, Giles represented the law in British Columbia. No Canadian appellate court had suggested or found that a search of a smartphone incident to arrest, without a warrant, violated s. 8 of the Charter. Since then, the Supreme Court of Canada has recognized the highly invasive nature of searches of cell phones and computers because of the quantity and quality of personal information contained on these devices. Based on these judgments, one appellate court, the Nova Scotia Court of Appeal, and a British Columbia trial judge, have rejected the approach in Giles. Justice R.E. Levine said it seems that downloading the entire contents of a cell phone or smartphone, like the BlackBerrys in this case, seized on the arrest of the accused, after some delay, without a search warrant, can no longer be considered valid under s. 8 of the Charter as a reasonable warrantless search. The highly invasive nature of these searches exceeds the permissible scope for a warrantless search authorized under the common law as a search incident to arrest.

The interest of the state in law enforcement does not justify such a warrantless search. In this case, the searches were carried out more than two years after the appellant’s arrests. The delay itself demonstrates that none of the purposes that justify a warrantless search incident to arrest were relevant. Obtaining a warrant could not have interfered with preserving the evidence or with officer safety. In fact, there is no explanation for not obtaining a warrant except that the nature of the object searched had previously been likened to other objects – logbooks, diaries, notebooks – that had not been considered to give rise to a serious invasion of the accused’s right to privacy.

It now seems obvious that the individual’s privacy interest in the contents of a device such as a BlackBerry outweighs the state’s interest in law enforcement, and a warrantless search of those contents is unreasonable according to the test set out in Collins.

In summary, Justice R.E. Levine said the law as it stands today no longer permits police to conduct warrantless searches of the entire contents of an individual’s cell phone. The BCCA offered no comment on the permissible grounds of a “cursory” search, or other difficult questions pertaining to search incident to arrest and cell phones, as they were not before this Court.

Leave a comment

Filed under Recent Case Law, Search and Seizure

Where a driver admits to having consumed alcohol, even though there is no clarification of quantity or timing of consumption, the admission of alcohol consumption is sufficient to ground reasonable suspicion

R. v. Flight 2014 ABCA 185After playing in a golf tournament, where he consumed alcohol, the accused went for a drive. While driving on a paved rural road, the accused accelerated his vehicle, causing it to fishtail out of control and cross the centre line where it collided with the victims’ vehicle. The driver of the victims’ vehicle died at the scene and the passenger was admitted to hospital. The accused’s vehicle’s Onstar service reported the collision to police. When the police spoke with the accused at the scene, he did not notice anything unusual about the accused’s motor skills or speech and he did not detect an odour of alcohol. After the accused admitted that he had a couple of drinks, the officer made a roadside approved screening device (ASD) demand. Once the accused was in the police car, the officer noted an odour of alcohol. The ASD registered a “fail” and the accused was arrested for impaired driving. At the police station, the accused spontaneously stated that he was driving too fast. He also indicated that he had his last drink some three or four hours earlier. After speaking with two lawyers, the accused provided breath samples that gave readings of .10 and .09. At trial, the Crown called Ms. Patricia Lehmann, a toxicology expert, to provide evidence about the appellant’s blood alcohol concentration at the time of the crash and about the effects of alcohol on driving ability. She estimated a blood alcohol concentration level over the legal limit: between 99 and 147 mg% at the time of the crash.

Among the issues on the appeal was whether an admission of alcohol consumption was sufficient grounds for an ASD demand or whether the officer had to obtain drinking times and calculate or estimate whether there would be alcohol in the system as some Alberta cases had held. The ABCA holds that in most cases, a simple admission of consumption is sufficient (Note that this case also considered the impact of R. v. Chehil [2013] S.C.J. No. 49 which was not a drinking and driving case, but provides important instruction on the reasonable suspicion standard).

Section 254 of the Criminal Code sets out a two-stage scheme to address the dangers of impaired driving: R. v. Woods, 2005 SCC 42 at paras 6 and 30, [2005] 2 SCR 205; see also R. v. Bernshaw, [1995] 1 SCR 254 at paras 20-21, 35 CR (4th) 201. The first stage is set out in section 254(2). This section authorizes a peace officer to demand a roadside ASD sample if the peace officer has a reasonable suspicion that the driver has alcohol in his body. An ASD will show a pass, a warning, or a fail result. This serves an important investigatory, screening function, and permits a peace officer to determine whether further, more conclusive, testing is warranted: Bernshaw at para 20. In normal circumstances, a “fail” result from an ASD is sufficient to provide a peace officer with the requisite reasonable and probable grounds to proceed to the second stage: Bernshaw at para 49. The second stage is set out in section 254(3). It authorizes a peace officer who has reasonable grounds to believe that a driver has committed an impaired driving offence to demand samples for a breathalyzer test. A breathalyzer is a more precise instrument. It permits peace officers to determine the alcohol concentration in a person’s blood, and determine whether the driver’s alcohol level exceeds the limit prescribed by law: Woods at para 3. Because a breathalyzer test is more intrusive, the grounds required to make such a demand are higher.

 The reasonable suspicion standard has both subjective and objective elements. The Supreme Court clarified the reasonable suspicion standard in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 and R. v. MacKenzie, [2013] S.C.J. No. 50, 2013 SCC 50, [2013] 3 S.C.R. 250.

In Chehil, Justice Karakatsanis J. emphasized that the reasonable suspicion standard is a lower standard than that of reasonable and probable grounds, as it engages the “reasonable possibility, rather than probability” of crime: para 27. She cautioned that courts should avoid confusing the two standards: Chehil at para 27; see also MacKenzie at para 84. She summarized the proper approach as follows at para 29:

Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience […]. A police officer’s grounds for reasonable suspicion cannot be assessed in isolation [citations omitted].

However, peace officers are not under a duty to undertake further investigation to “seek out exculpatory factors or rule out possible innocent explanations”: Chehil at para 34. The hallmarks of the exercise are “common sense, flexibility, and practical everyday experience”: MacKenzie at para 73.

The reasonable suspicion standard is designed to strike a balance between an individual’s privacy interests and the public interest in enabling law enforcement to investigate crime: Chehil at para 22. Any suspicion must be grounded in “objectively discernable facts, which can then be subjected to independent judicial scrutiny”: Chehil at para 26. The requirement that a peace officer’s suspicion be objectively reasonable provides needed rigour to the standard, and prevents indiscriminate breaches of privacy interests: Chehil at para 25.

The central issue in the case at hand can be framed as follows: where a driver admits to having consumed alcohol, but there is no clarification about the quantity or timing of consumption, is the driver’s admission alone sufficient to ground an objectively justifiable, reasonable suspicion that the driver has alcohol in his body? There are two divergent lines of authority which have developed in Alberta on this very point: the first line of authority stems from R. v. Thomas, [2008] A.J. No. 1121, 2008 ABQB 610, 461 AR 216 and R. v. Dunn; R. v. Bouvier, 2007 ABPC 160, [2007] A.J. No. 664 [Thomas/Dunn]. The second stems from R. v. Hnetka, [2007] A.J. No. 806, 2007 ABPC 197, 426 AR 254. Several decisions have lined up on either side of the issue: see R. v. Nanooch, [2010] A.J. No. 1167, 2010 ABPC 331 at paras 15-29, 37 Alta LR (5th) 259.

The Manitoba Court of Appeal recently considered these divergent approaches in R. v. Mitchell, [2013] M.J. No. 161, 2013 MBCA 44, 291 Man R (2d) 231. Writing for the Court, Monnin JA was not prepared to say that a simple admission of alcohol consumption will always, in and of itself, be sufficient to provide a reasonable suspicion. However, he noted that there will rarely be a need for a peace officer to obtain an alcohol consumption history from a driver before forming a reasonable suspicion.

In the case at hand, the ABCA agreed with the conclusions of the Manitoba Court of Appeal in Mitchell. In most cases, the admission of consumption alone, without further information about the amount and/or timing of consumption, will be sufficient to ground an objectively reasonable suspicion. Police officers should not be required to inquire into alcohol consumption history with a driver at the roadside.

[W]here, as here, the police have arrived to the scene of a serious motor vehicle accident … [i]t should be no surprise to anyone that in such a situation, an investigating officer would inquire about alcohol consumption. If the inquiry had not been made, there may be a suggestion that the police did not conduct a thorough investigation. The appellant responded in an unqualified manner that he had “a couple of drinks.” In these circumstances, it is reasonable to infer that he was referring to alcoholic drinks and that his consumption was relatively recent.

In the view of the ABCA, the wording of section 254(2) suggests that the admission of alcohol alone will, generally, ground an objectively justifiable, reasonable suspicion. That section provides that a peace officer can make a roadside ASD demand where he “has reasonable grounds to suspect that a person has alcohol or a drug in their body and that person has, within the preceding three hours, operated a motor vehicle”. As noted by this same Court in R. v. Gilroy (1987), 79 AR 318, 3 MVR (2d) 123, the test for reasonable suspicion in section 254(2) is based on consumption alone, not its amount or effects.

Where a driver qualifies an admission of consumption temporally, this alone may not be sufficient to ground a reasonable suspicion: see R. v. Kimmel, [2008] A.J. No. 1120, 2008 ABQB 594 at paras 34-35, 459 AR 95. Each case must be assessed on its own facts.

Like Monnin JA at the Manitoba Court of Appeal, however, the ABCA did not go so far as to suggest that an admission of alcohol consumption alone will always be enough to meet the reasonable suspicion threshold. Again, each case must be decided on its own facts and the constellation of relevant factors must be examined in their totality. The police are entitled (and, indeed, required) to react to circumstances as they develop. All of the circumstances known to the officer at the relevant time must be considered together, not in isolation.

In summary, the ABCA concluded that:

“In most cases, admission of consumption alone will be sufficient to ground an objectively reasonable suspicion. Reasonable suspicion is a low standard. Police officers are not required to inquire into an alcohol consumption history with a driver at the roadside. However, each case must be assessed on its own facts. Police officers must respond to information as it unfolds.”

“This conclusion is also grounded in practicalities. To require peace officers to conduct a roadside calculation of likely current impairment based on common elimination rates is unrealistic and does not reflect the practical realities of a roadside stop, nor the two-stage scheme that Parliament has established in section 254: see Dunn at para 15. Parliament created a framework for ready-use in the field. Turning it into a standard difficult to apply would thwart Parliament’s will.”

Leave a comment

Filed under APA Cadets, Impaired Driving, Recent Case Law

The Supreme Court of Canada has ruled that we need a warrant to obtain subscriber information matching to an IP address from an Internet service provider

R. v. Spencer 2014 SCC 43 – Mr. Spencer, who lived with his sister, connected to the Internet through an account registered in his sister’s name. He used the file-sharing program LimeWire on his desktop computer to download child pornography from the Internet. It was Mr. Spencer’s use of the file-sharing software that brought him to the attention of the police and which ultimately led to the search at issue in this case. The Saskatoon Police Service, by using publicly available software, were searching for anyone sharing child pornography. The officer could access whatever another user of the software had in his or her shared folder. In other words, he could “see” what other users of the file sharing software could “see”. He could also obtain two numbers related to a given user: the IP address that corresponds to the particular Internet connection through which a computer accesses the Internet at the time and the globally unique identifier (GUID) number assigned to each computer using particular software. The IP address of the computer from which shared material was obtained was displayed as part of the file-sharing process. There was little information in the record about the nature of IP addresses in general or the IP addresses provided by Shaw to its subscribers.

The officer generated a list of IP addresses for computers that had shared what he believed to be child pornography. He then ran that list of IP addresses against a database which matches IP addresses with approximate locations. He found that one of the IP addresses was suspected to be in Saskatoon, with Shaw as the ISP. The officer then determined that Mr. Spencer’s computer was online and connected to LimeWire. As a result, he (along with any LimeWire user) was able to browse the shared folder. He saw an extensive amount of what he believed to be child pornography. What he lacked was knowledge of where exactly the computer was and who was using it.

To connect the computer usage to a location and potentially a person, investigators made a written “law enforcement request” to Shaw for the subscriber information including the name, address and telephone number of the customer using that IP address. The request, which was purportedly made pursuant to s. 7(3)(c.1)(ii) of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (PIPEDA), indicated that police were investigating an offence under the Criminal Code, R.S.C. 1985, c. C-46, pertaining to child pornography and the Internet and that the subscriber information was being sought as part of an ongoing investigation. Investigators did not have or try to obtain a production order (i.e. the equivalent of a search warrant in this context). Shaw complied with the request and provided the name, address and telephone number of the customer associated with the IP address, Mr. Spencer’s sister. With this information in hand, the police obtained a warrant to search Ms. Spencer’s home (where Mr. Spencer lived) and seize his computer, which they did. The search of Mr. Spencer’s computer revealed hundreds of child pornography images and over a hundred child pornography videos in his shared LimeWire folder. Mr. Spencer was charged with possessing child pornography contrary to s. 163.1(4) of the Criminal Code and making child pornography available over the Internet contrary to s. 163.1(3). There was no dispute that the images found in his shared folder were child pornography.

At trial, Mr. Spencer sought to exclude the evidence found on his computer on the basis that the police actions in obtaining his address from Shaw without prior judicial authorization amounted to an unreasonable search contrary to s. 8 of the Canadian Charter Rights and Freedoms. The trial judge rejected this contention and convicted Mr. Spencer of the possession count. On appeal, the Saskatchewan Court of Appeal upheld the conviction for possession of child pornography, agreeing with the trial judge that obtaining the subscriber information was not a search and holding that even if it were a search, it would have been reasonable. The court, however, set aside the acquittal on the making available charge on the basis that the trial judge had been wrong to require proof of positive facilitation of access by others to the material. A new trial was ordered on this charge.

At the core of the appeal to the SCC was the Acceptable Use Policy (last updated on June 18, 2007) that provided that Shaw was authorized to cooperate with law enforcement authorities in the investigation of criminal violations, including supplying information identifying a subscriber in accordance with its Privacy Policy. The provision reads as follows:

You hereby authorize Shaw to cooperate with (i) law enforcement authorities in the investigation of suspected criminal violations, and/or (ii) system administrators at other Internet service providers or other network or computing facilities in order to enforce this Agreement. Such cooperation may include Shaw providing the username, IP address or other identifying information about a subscriber, in accordance with the guidelines set out in Shaw’s Privacy Policy. [Emphasis added.]

The SCC said that Section 7(3)(c.1)(ii) PIPEDA allows for disclosure without consent to a government institution where that institution has identified its lawful authority to obtain the information. But the issue was whether there was such lawful authority which in turn depends in part on whether there was a reasonable expectation of privacy with respect to the subscriber information. PIPEDA thus cannot be used as a factor to weigh against the existence of a reasonable expectation of privacy since the proper interpretation of the relevant provision itself depends on whether such a reasonable expectation of privacy exists. Given that the purpose of PIPEDA is to establish rules governing, among other things, disclosure “of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information” (s. 3), it would be reasonable for an Internet user to expect that a simple request by police would not trigger an obligation to disclose personal information or defeat PIPEDA‘s general prohibition on the disclosure of personal information without consent.

The identity of a person linked to their use of the Internet had to be recognized as giving rise to a privacy interest beyond that inherent in the person’s name, address and telephone number found in the subscriber information, said the SCC. The police request to link a given IP address to subscriber information was in effect a request to link a specific person to specific online activities (in this case, child pornography). This sort of request engaged the anonymity aspect of the informational privacy interest by attempting to link the suspect with anonymously undertaken online activities, activities which were recognized by the Court in other circumstances as engaging significant privacy interests. In the totality of the circumstances of this case, there was a reasonable expectation of privacy in the subscriber information. The disclosure of this information could amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous. A request by a police officer that an ISP voluntarily disclose such information amounted to a search. Without the subscriber information, the search warrant could not have been obtained and the search of the residence was therefore unlawful.

The intervener, the Director of Public Prosecutions, raised the concern that recognizing a right to online anonymity would carve out a crime-friendly Internet landscape by impeding the effective investigation and prosecution of online crime. In light of the grave nature of the criminal wrongs that can be committed online, this concern cannot be taken lightly. However, in the view of the SCC, recognizing that there may be a privacy interest in anonymity depending on the circumstances failed short of recognizing any “right” to anonymity and did not threaten the effectiveness of law enforcement in relation to offences committed on the Internet. In this case, for example, it seemed clear that the police had ample information to obtain a production order requiring Shaw to release the subscriber information corresponding to the IP address they had obtained.

The SCC concluded that the police request to Shaw for subscriber information corresponding to specifically observed, anonymous Internet activity engaged a high level of informational privacy:

[A] reasonable and informed person concerned about the protection of privacy would expect one’s activities on one’s own computer used in one’s own home would be private … In my judgment, it matters not that the personal attributes of the Disclosed Information pertained to Mr. Spencer’s sister because Mr. Spencer was personally and directly exposed to the consequences of the police conduct in this case. As such, the police conduct prima facie engaged a personal privacy right of Mr. Spencer and, in this respect, his interest in the privacy of the Disclosed Information was direct and personal.

As the SCC ruled in R. v. Plant, [1993] 3 S.C.R. 281, the Court, dealing with informational privacy, stressed the strong claim to privacy in relation to information that is at the “biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state”: p. 293. Importantly, the Court went on to make clear that s. 8 protection is accorded not only to the information which is itself of that nature, but also to “information which tends to reveal intimate details of the lifestyle and personal choices of the individual”.

Section 487.014(1) of the Criminal Code provides that a peace officer does not need a production order “to ask a person to voluntarily provide to the officer documents, data or information that the person is not prohibited by law from disclosing”. PIPEDA prohibits disclosure of the information unless the requirements of the law enforcement provision are met, including that the government institution discloses a lawful authority to obtain, not simply to ask for the information: s. 7(3)(c.1)(ii). On the Crown’s reading of these provisions, PIPEDA‘s protections become virtually meaningless in the face of a police request for personal information: the “lawful authority” was a simple request without power to compel and, because there was a simple request, the institution is no longer prohibited by law from disclosing the information.

The SCC said “lawful authority” in s. 7(3)(c.1)(ii) of PIPEDA must be contrasted with s. 7(3)(c), which provides that personal information may be disclosed without consent where “required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records”. The reference to “lawful authority” in s. 7(3)(c.1)(ii) must mean something other than a “subpoena or [search] warrant”. “Lawful authority” may include several things. It may refer to the common law authority of the police to ask questions relating to matters that are not subject to a reasonable expectation of privacy. It may refer to the authority of police to conduct warrantless searches under exigent circumstances or where authorized by a reasonable law: Collins. As the intervener the Privacy Commissioner of Canada submitted, interpreting “lawful authority” as requiring more than a bare request by law enforcement gives this term a meaningful role to play in the context of s. 7(3) and should be preferred over alternative meanings that do not do so. In short, the SCC said that neither s. 487.014(1) of the Code, nor PIPEDA, creates any police search and seizure powers.

Following the Grant test, given the uncertainty in the lawfulness of the police request before this case was heard here, the SCC dismissed the appeal by defence, affirmed the conviction on the possession count, and upheld the Court of Appeal’s order for a new trial on the making available count. Going forward, after this decision by the SCC, it is clear that short of where the information is required to prevent imminent bodily harm (exigent circumstances), or some other lawful authority, we will need a warrant (production order) to obtain subscriber information matching to an IP address from an Internet service provider.

Leave a comment

Filed under Recent Case Law, Search and Seizure