Monthly Archives: December 2014

Section 10(b) Charter – Rights to Counsel – the Implementational Facet

Two cases out of the Ontario Courts have again examined whether the police complied with the implementational facet of s. 10(b) of the Charter:

R. v. Anikhovskiy 2014 ONCJ 664 – following a “Fail” of the ASD, the accused was arrested for driving while his ability to do so was impaired by alcohol. The officer read him his rights to counsel, which he understood, and advised “No” to wanting to speak with a lawyer. The officer in charge effectively repeated the defendant’s right to counsel. For the first time, the defendant indicated that he wished to speak to a lawyer. The defendant told the officer of a “friend” who he thought was a lawyer; he seemed uncertain. The officer retrieved the defendant’s cell phone from his jacket and wrote the number and the friend’s name, “Harvey”, in her notebook when the defendant located it. She stepped out of the interview room and dialed the number. She reached a generic voicemail message, in a male voice, advising that she had reached the dialed number and inviting her to leave a message. The recorded message did not identify a law firm or provide an alternative or referral number. To the officer, it seemed more like a personal than a business voicemail. She left a message explaining that the defendant was at Traffic Services, along with the station’s front desk phone number.

The officer then returned to the interview room. In direct examination, she indicated that she briefed the defendant about what had occurred and informed him that she would put him in touch with “Harvey” if he called back. Within the same 1-2 minutes, she asked the defendant if he would like her to call duty counsel; he did. The officer immediately placed the call. Duty counsel called back and engaged in a private conversation with the defendant for about 4 minutes. The officer then escorted the defendant to the breath room. The defendant did not express any dissatisfaction with his conversation with duty counsel. The officer did not recall the defendant subsequently asking about or otherwise referring to “Harvey”. She never advised the defendant that he could not speak to anyone else because he had spoken to duty counsel. The defendant provided two suitable samples of breath and failed.

Persons detained by the police must be informed forthwith of their right to consult a lawyer and, if they elect to do so, promptly afforded such opportunity (R. v. Willier, [2010] 2 S.C.R. 429). As cited in R. v. Kumarasamy (2002), 22 M.V.R. (4th) 234 (Ont. S.C.J.), at para. 25:

In the vast majority of cases, once the detainee has expressed a desire to contact counsel, police must facilitate the detainee’s efforts to do so: R. v. Brydges (1990), 53 C.C.C. (3d) 330 (S.C.C.). This obligation includes facilitating contact with counsel of choice where a request has been made to speak to a specific counsel. This is so whether the person has counsel’s number available or not. It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice.

Justice Melvyn Green excluded the defendant’s breath test readings following the Grant test, citing that the officer tried too hard to back-fill the increasingly apparent gaps in a narrative of compliance with s. 10(b)-implementational obligations. At paras 18-19:

What remains is [the officer] telling the defendant she left a callback number on Harvey’s voicemail and, within the same minute, asking the defendant if he wished to call duty counsel, an offer he accepted. There was nothing urgent about the circumstances, yet [the officer] made no inquiry as to whether the defendant wished to try and contact someone else. She did not convey her doubts about whether the number he provided connected to a lawyer. She made no effort to confirm that she had recorded the number accurately. She did not endeavour to reverse-search the number. She did not place or even offer to place a second call. She did not positively inform the defendant that he had a right to a reasonable opportunity for the callback or to a further out-call, to Harvey or someone else. She could not even recall if the defendant had requested waiting for a callback from Harvey before she proposed contacting duty counsel. In short, the defendant, dependent on [the officer] to facilitate his access to counsel of choice, was deprived of the knowledge he required to make an informed decision whether to continue to pursue his effort to reach personal counsel or accept the public alternative.

As said in R. v. Taylor, supra, at para. 33, “Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel” (emphasis in original). Those “proactive steps” were not here taken. They were replaced by a perfunctory nod to the obligations imposed by s. 10(b). “The availability of duty counsel 24 hours a day cannot”, as put in R. v. Kumarasamy, supra, at para. 21, “be used to trump a detainee’s right to counsel of choice”. The defendant’s s. 10(b) rights were infringed.

In R. v. Swaine 2014 ONSC 7049, the Trial Judge convicted the driver of operating a motor vehicle having consumed alcohol in such quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) of the Criminal Code. He appealed that conviction on the basis that he did not give a clear and unequivocal waiver to counsel rights. The ONSC allowed the appeal and ordered a new trial.

The driver registered a “Fail” of the ASD and was subsequently arrested and taken back to the police station for breath tests.  The arresting officer testified that he had provided rights to counsel to the accused at the roadside after arresting him and that the accused indicated that he understood and did not wish to call a lawyer. The focus then turned to the officer’s dashpad notes. They had entries “RTC” and “lawyer”. Then, there was something scratched out, with “no” on top of it. The officer said that he had scratched out the word “no”. He had asked the driver if he wanted to speak to a lawyer, but could not explain why the original “no” was scratched out. The arresting officer turned the driver over to a qualified technician. Among other things, the arresting officer advised the tech that the driver did not wish to speak to duty counsel or a lawyer. Notwithstanding this, before beginning the breath testing, the tech addressed the driver’s rights to counsel again. The driver’s response, according to the tech, was, “(h)e began to say to me something about possibly wanting it and then he paused and said, and I quoted it, wrote it down immediately, he said, “You know what? … fuck it””. The tech indicated he took that to mean that the driver was initially “waffling” like he was unsure, but that it became clear that the driver did not want to speak to a lawyer. He proceeded with the breath tests.

The accused’s evidence was that he had wanted to speak to a lawyer and had made that known to police as soon as the arresting officer read him his rights. Specifically, he had wanted to call his wife, who was a lawyer, and did not need duty counsel. He was denied the use of his cell phone for this at the roadside and again later. After the tech had advised him of his rights to counsel and asked, the driver had indicated that he had better (make a call). However, the tech had continued with the test preparations. As the accused said, “… we just kept going on with the, you know, all the instructions and whatnot of the breathalyzer and I just, I was frustrated. I just, fuck it, you know? Nobody is paying attention to me here, obviously”. He testified that he had never told police that he did not want to talk to a lawyer.

“Once a detainee has indicated a desire to exercise his rights to counsel, the state is required to provide him with a reasonable opportunity in which to do so. In addition, state agents must refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel.” (R. v. Prosper, [1994] 3 S.C.R. 236, at paragraph 34. See also R. v. Willier, [2010] 2 S.C.R. 429). The standard for waiver of one’s right to counsel is very high. Furthermore, where a detainee has asserted right to counsel, but then indicates a change of mind, further information, known as a “Prosper warning” must be given by the police. The burden of proof of that change of mind and an unequivocal waiver is on the Crown (R. v. Prosper paragraphs 43 and 44, R. v. Willier paragraphs 29 through 35).

At para 19, Justice J.A.S. Wilcox stated:

The Crown submitted in the alternative that, if a waiver was in fact necessary, there was a clear and unequivocal one. Again, with respect, I disagree. Instead, I agree with the defence that the expression “fuck it” is equivocal and capable of supporting many interpretations. In the circumstances, and given the importance of the right at stake, I think it was incumbent on the police to explore the matter further to get clarification following the utterance of the impugned phrase and to give a Prosper warning. This would also follow, in theory, from the trial judge’s adverse inference against the Crown, but [the tech] would have had no way of knowing that at the time. With respect, I find that it was an error to find there was a waiver of the right to counsel prior to the breath tests being taken.

Justice Wilcox said the phrase was not an expression of waiver, but rather one of frustration, or even of resignation. The appeal was allowed and the matter was remitted to the Ontario Court of Justice for a new trial.

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Filed under Impaired Driving, Section 10 Charter

Police searches of cellphones incident to arrest permitted

R. v. Fearon 2014 SCC 77 – in a 4-3 decision, the Supreme Court of Canada has held that the common law power to search incident to a lawful arrest permits the search of cell phones and similar devices found on the suspect, although some modification of the existing common law framework is necessary because the search of a cell phone has the potential to be a much more significant invasion of privacy than the typical search incident to arrest.

A female merchant was operating a jewellery stall at a flea market in the Downsview area of Toronto. At the end of the day (about 6:15 p.m.) as she was packing her merchandise into her car, she was robbed by two men (Kevin Fearon and Junior Chapman). One of the men pointed a handgun at her and ordered her to open the trunk of her car. The other man stood by. The two men then grabbed the jewellery and other objects and fled to a waiting car. The estimated value of the stolen jewellery was between $10,000 and $40,000.  The merchant described the gun as an inch and a half in diameter, mostly silver, but dark grey toward the handle. She said that the two men drove off in a black two-door automobile, which was located within 25 minutes of the robbery by virtue of a licence plate number given to the police by an eyewitness. The car was left less than a kilometre from the flea market. The car was registered to the co-accused, Chapman. Eyewitnesses at the scene gave descriptions of the robbers, which included that the robber with the gun was wearing an oversized red “hoodie”. When the car was located, the police observed a red sweater on the front passenger seat. The car was sealed in anticipation of obtaining a search warrant. Based on the description provided by the merchant to police, an officer suspected that Fearon, who lived in the area, may have been involved in the robbery. The officer was also advised that the owner of the getaway car had previously been arrested with Fearon.

The officer drove to the apartment building where Fearon lived. When he entered the lobby of the building, he saw Fearon and Chapman leave; the officer then detained Fearon and Chapman. Fearon initially lied about his identity. He was arrested for obstructing justice. When two officers from the holdup squad arrived, both men were arrested for robbery with a firearm, cautioned and advised of their rights to counsel. A pat down search of Fearon followed. This resulted in the discovery of the cell phone containing the photographs of a gun and cash as well as the incriminating text message. The text message read: “We did it were the jewlery at nigga burrrrrrrrr”.

In order to access the photographs and the text message in the cell phone, an officer had to operate the keyboard on the phone. The cell phone was turned “on” and there is no evidence that it was password protected or otherwise “locked” to users other than Fearon. The photographs and the text message were not in plain view and it was necessary to manipulate the key pad in order to move the phone into its different modes. When an officer returned to the police station, he gave the phone to another officer who attempted to determine whether the incriminating text message had been sent to anyone. The officer determined that the message was a draft and therefore had not yet been sent to anyone. He hit the “save” button in order not to lose the text message. After about two minutes, the phone was returned to the original officer who was told to look through it for recent calls or contacts. In the course of the night and next morning, as the investigation progressed, officers made additional checks of the phone. At trial, however, the only data from the phone relied upon by the Crown were the photos and the text message. A day and a half later, when police had a warrant to search the vehicle, they recovered the handgun used in the robbery and depicted in the photo.  Months later, police applied for and were granted a warrant to search the contents of the phone. No new evidence was discovered.

On a voir dire, the trial judge found that the search of the cell phone incident to arrest had not breached s. 8  of the Charter. She admitted the photos and text message and convicted Fearon of robbery with a firearm and related offences. The Ontario Court of Appeal unanimously dismissed Fearon’s appeal. The court affirmed the trial judge’s conclusion that the search incident to arrest had not violated Fearon’s s. 8 Charter rights. The appeal to the SCC raised two main questions: was the search incident to arrest unreasonable and therefore contrary to s. 8 of the Charter, and if so, should the evidence be excluded under s. 24(2) of the Charter?

The analytical framework cited by the SCC included the familiar cases of R. v. Collins, [1987] 1 S.C.R. 265, R. v. Caslake, [1998] 1 S.C.R. 51, Cloutier v. Langlois, [1990] 1 S.C.R. 158, R. v. Debot, [1989] 2 S.C.R. 1140, R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, R. v. Beare, [1988] 2 S.C.R. 387, R. v. Dyment, [1988] 2 S.C.R. 417, R. v. Pohorestsky, [1987] 1 S.C.R. 945, R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, R. v. Morelli, [2010] 1 S.C.R. 253, R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, and a couple of others that every officer in the field should be familiar with by now (if not, I suggest that you do so).

Justice Cromwell, speaking for the majority at para 58, said:

…the general common law framework for searches incident to arrest needs to be modified in the case of cell phone searches incident to arrest. In particular, the law needs to provide the suspect with further protection against the risk of wholesale invasion of privacy which may occur if the search of a cell phone is constrained only by the requirements that the arrest be lawful and that the search be truly incidental to arrest and reasonably conducted. The case law suggests that there are three main approaches to making this sort of modification: a categorical prohibition, the introduction of a reasonable and probable grounds requirement, or a limitation of searches to exigent circumstances…

Consequently, Justice Cromwell said four conditions must be met in order for the search of a cell phone or similar device incidental to arrest to comply with s. 8 of the Charter:

  • First, the arrest must be lawful;
  • Second, the search must be truly incidental to the arrest. This requirement should be strictly applied to permit searches that must be done promptly upon arrest in order to effectively serve the law enforcement purposes. In this context, those purposes are protecting the police, the accused or the public; preserving evidence; and, if the investigation will be stymied or significantly hampered absent the ability to promptly conduct the search, discovering evidence (to paraphrase Caslake, the police must be able to explain, within the permitted purposes, what they searched and why);
  • Third, the nature and the extent of the search must be tailored to its purpose. In practice, this will mean that only recently sent or drafted emails, texts, photos and the call log will, generally, be available, although other searches may, in some circumstances, be justified;
  • Finally, the police must take detailed notes of what they have examined on the device and how they examined it. The notes should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. The record‑keeping requirement is important to the effectiveness of after‑the‑fact judicial review. It will also help police officers to focus on whether what they are doing in relation to the phone falls squarely within the parameters of a lawful search incident to arrest.

Justice Cromwell, at para 84, said:

In setting out these requirements for the common law police power, I do not suggest that these measures represent the only way to make searches of cell phones incident to arrest constitutionally compliant. This may be an area, as the Court concluded was the case in Golden, in which legislation may well be desirable. The law enforcement and privacy concerns may be balanced in many ways and my reasons are not intended to restrict the acceptable options.

With regards to the password-protection issue, at para 53 Justice Cromwell said:

I pause here for a moment to note that some courts have suggested that the protection s. 8 affords to individuals in the context of cell phone searches varies depending on whether an individual’s phone is password-protected…I would not give this factor very much weight in assessing either an individual’s subjective expectation of privacy or whether that expectation is reasonable. An individual’s decision not to passwordprotect his or her cell phone does not indicate any sort of abandonment of the significant privacy interests one generally will have in the contents of the phone…Cell phones — locked or unlocked — engage significant privacy interests. But we must also keep this point in perspective.

Applying all these factors to the case at hand, the initial search of the cell phone, which disclosed all of the cell phone evidence tendered by the Crown at trial, was found to breach Fearon’s s. 8 Charter rights. Although they were truly incidental to Fearon’s arrest for robbery, were for valid law enforcement objectives, and were appropriately linked to the offence for which Fearon had been lawfully arrested, detailed evidence about precisely what was searched, how and why, was lacking (the 4th condition that now has to be met, moving forward). Despite that breach, the majority ruled the evidence should not be excluded.

The minority, dissenting reasons given by Justice Karakatsanis (concurred in by LeBel and Abella JJ.), at paras 105-106 said:

The intensely personal and uniquely pervasive sphere of privacy in our personal computers requires protection that is clear, practical and effective. An overly complicated template, such as the one proposed by the majority, does not ensure sufficient protection. Only judicial pre-authorization can provide the effective and impartial balancing of the state’s law enforcement objectives with the privacy interests in our personal computers. Thus, I conclude that the police must obtain a warrant before they can search an arrested person’s phone or other personal digital communications device. Our common law already provides flexibility where there are exigent circumstances ― when the safety of the officer or the public is at stake, or when a search is necessary to prevent the destruction of evidence.

In this case, the appellant was arrested in connection with an armed robbery. Upon arrest, the police searched his cell phone and discovered incriminating evidence. The police had no grounds to suspect there was an imminent threat to safety and no grounds to believe there was an imminent risk of the destruction of evidence. Consequently, I conclude that the search was unreasonable and unconstitutional. The police were required to obtain a warrant before searching the phone, although they were entitled to seize the phone pending an application for a warrant. I would exclude the evidence so obtained.

Luckily for us as police, the majority ruled in such a way to give us clearer guidelines to apply SITA in a time of profound technological change and innovation so as to comply with the requirements of s. 8 of the Charter in these matters.

A couple of final points to be taken from this case: at para 79, Justice Cromwell said:

The law enforcement objectives served by searches incident to arrest will generally be most compelling in the course of the investigation of crimes that involve, for example, violence or threats of violence, or that in some other way put public safety at risk, such as the robbery in this case, or serious property offences that involve readily disposable property, or drug trafficking. Generally speaking, these types of crimes are most likely to justify some limited search of a cell phone incident to arrest, given the law enforcement objectives. Conversely, a search of a cell phone incident to arrest will generally not be justified in relation to minor offences.

And at para 80:

The discovery of evidence, in the context of a cell phone search incident to arrest, will only be a valid law enforcement objective when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. Only in those types of situations does the law enforcement objective in relation to the discovery of evidence clearly outweigh the potentially significant intrusion on privacy. For example, if, as in this case, there is reason to think that there is another perpetrator who has not been located, the search of a cell phone for that purpose will be truly incidental to the arrest of the other suspects. As Det. Nicol testified, there were matters that needed to be followed up immediately in this case. If, on the other hand, all suspects are in custody and any firearms and stolen property have been recovered, it is hard to see how police could show that the prompt search of a suspect’s cell phone could be considered truly incidental to the arrest as it serves no immediate investigative purpose. This will mean, in practice, that cell phone searches are not routinely permitted simply for the purpose of discovering additional evidence. The search power must be used with great circumspection. It also means, in practice, that the police will have to be prepared to explain why it was not practical (and I emphasize that this does not mean impossible), in all the circumstances of the investigation, to postpone the search until they could obtain a warrant.

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Filed under Recent Case Law, Search and Seizure

Police required a wiretap authorization before observing a suspect’s text messages displayed on his blackberry screen via high-powered casino CCTV cameras

R. v. Ley 2014 BCSC 2108 – members of the Vancouver Police Department followed the applicant into the Edgewater Casino in Vancouver. The police attended the video monitoring area of the casino to continue the surveillance of the applicant. That area is used by casino staff to monitor the casino premises, except the washrooms, using a number of cameras placed throughout the facility, some of which have pan, tilt, and zoom capabilities. The resulting images are viewed on screens in the room and recorded for future reference.

The officer testified that he directed a camera operator to follow the applicant. He testified that he observed the applicant sending and receiving multiple text messages on his Blackberry. On two of those occasions, the officer directed the operator to zoom in on the Blackberry and was able to read the words on the screen. He said that he did this to gather “intel” by seeing what the applicant was saying on his phone. He also said that he observed text on the screen from someone responding to the applicant. He said that he could not have seen the readable text messages without the use of the zoom feature on the cameras. The applicant was specifically targeted by a camera operator under the direction of the police for a period of about five hours. Other members of the Vancouver Police Department subsequently obtained the footage containing the recorded images of the applicant and the Blackberry from the casino.

The evidence showed that a high level of security is necessary in a casino to detect cheating, theft, money laundering, loan sharking, threats to public safety, abandoned children, self-excluded gamblers and “undesirable patrons”. A sign is posted at the entrance to the casino that patrons are subject to 24 hour video surveillance. Camera domes are also visible throughout the facility. There is no sign indicating that handheld devices or text messages may be observed in the casino. The evidence was that the primary purpose of the video surveillance was to detect cheating by patrons in the casino.

Justice T.W. Bowden at para 27-28:

“…I do not consider that the applicant had an expectation of privacy in the casino with regard to his personal appearance including such things as his visage, his posture, his gait and the clothing that he wore. Nor did he have an expectation of privacy in relation to his actions while participating in a game.

the surveillance in this case was not to obtain a likeness of the applicant. Nor was it to determine if he was cheating at a game. Rather, it was to observe any text messages that he might send or receive on his Blackberry.

Justice Bowden said rather than seeking a disclosure of the messages sent by the applicant from the service provider, the police chose to read them in the process of being sent with the use of a camera. That, in the judge’s view, was substantially equivalent to an intercept under Part VI. Since R. v. Telus Communications Co., 2013 SCC 16, Justice Bowden said an authorization under Part VI of the Code was required because the actions of the police amounted to an interception of the applicant’s text messages in this case. By instead choosing to photograph the applicant’s messages and retain the recorded footage, the police bypassed the authorization requirement that, in Justice Bowden’s view, would otherwise have been necessary.

Decisions such as this (and R. v. Croft 2013 ABQB 640 that I posted earlier on my blog), dictate that you will now need a Part IV authorization for any text message content; past, present, or future.

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Filed under Search and Seizure