Category Archives: Search and Seizure

Are Text Messages Between Drug Dealers Private, Requiring Prior Judicial Authorization to Access?

In R. v. Campbell 2022 ONCA 666, he was found guilty of trafficking in fentanyl and possession of fentanyl for the purpose of trafficking, as well as trafficking in heroin and possession of heroin for the purpose of trafficking, contrary to ss. 5(1) and 5(2) of the Controlled Drugs and Substances Act (14.33 grams of heroin mixed with fentanyl). He received a global sentence of five years and eight months of imprisonment. He appealed his convictions and sentence.

There were three main players in this scenario: (a) Kyle Gammie, the person whose phone the police took possession of; (b) a person known as “Dew”, another drug dealer who gave the appellant a phone to use to communicate with Gammie; and (c) the appellant, who thought he was communicating with Gammie while using “Dew’s” phone. The events unfolded in the afternoon when five members of the Guelph Police Service Drug Unit executed a search warrant at Gammie’s residence. Gammie was a known drug dealer. The police were acting on a confidential tip. Gammie and a female were arrested as they left the residence and attempted to get into a car. In the course of the arrest, Gammie threw two cellphones onto the passenger seat of the car. Two officers handcuffed and searched Gammie, locating cash and cocaine on his person. One officer searched the car incident to the arrest and seized the two phones. He handed them over to another officer, the exhibits officer, who placed the phones on a table inside Gammie’s apartment. Minutes later, one of the phones lit up with incoming text messages. Four messages from “Dew” were visible on the locked screen.

Officers thought the messages revealed a drug transaction in progress – specifically, a transaction for heroin, which would likely be laced with fentanyl. The phrase “1250 for this half” was consistent with a transaction for “cheap” heroin (i.e., heroin mixed with fentanyl). The officers were concerned that if they did not follow through and gain control of these drugs, fentanyl might find its way onto the street. They considered this a public safety issue. It was decided to respond to the messages with the aim of having “Dew” deliver the drugs to the residence. An officer exchanged 35 messages with “Dew” over the next couple hours. The messages advised “Dew” where to go. “Dew” gave updates as to his location. Sometime later, the appellant arrived at Gammie’s apartment in accordance with the arrangements made with the officer. Upon seeing the police, he took off down the hallway but was shortly taken to the ground by police and placed under arrest. The police found a phone on the appellant – the one used to communicate with the Gammie phone. The screen of this phone was photographed to capture the text messages with the Gammie phone. The police also seized $40 in cash and 14.33 grams of heroin mixed with fentanyl.

At trial, the appellant brought a motion under ss. 8 and 24(2) of the Charter. He claimed that his rights were violated by the actions of the police in: (1) using Gammie’s phone to communicate with him and then seizing the messages sent and received during this exchange; and (2) by seizing and examining the same set of messages on the phone given to him by “Dew”. The ONCA said this case was about the search of a text message conversation. It started as a dialogue between two individuals, but the police decided to continue the exchange by surreptitiously assuming the identity of one of them. Although there are some differences between the facts of this case and the facts in R. v. Marakah 2017 SCC 59 (a previous post of mine, worth a read for its reasoning), they are not legally significant. Based on the holding in Marakah, the ONCA found that the trial judge should have found that the appellant had a reasonable expectation of privacy in his communications, and that a reasonable expectation of privacy does not simply rest on the concept of control – i.e., the risk that, once a text message is sent, the recipient of that message may disclose them to others. In Marakah, McLachlin C.J. recognized that “control, ownership, possession, and historical use are relevant to determining the reasonableness of an expectation of privacy. However, it is just one factor to be considered, and a person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it, …he or she may yet reasonably expect that information to remain safe from state scrutiny.”

However, in this particular case, the ONCA found that although the appellant had standing to assert his rights under s. 8 of the Charter, his claim must ultimately fail because the actions of the police were justified by exigent circumstances, focused on public safety: had this drug transaction, already in progress, not been rerouted in the manner they chose, the appellant would have aborted the operation. The drugs would have been outside the reach of the police and sold to someone else at another time, ultimately reaching users on the street. This, combined with the notoriously harmful nature of fentanyl, amounted to exigent circumstances, those circumstances rendered it “impracticable to obtain a warrant” in this case, but police must remember that mere convenience is not sufficient to proceed without a warrant, immediate action must be required.

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An arrest based upon a mistake of law is unlawful and contrary to Section 9 of the Charter

Firstly, it took me a while to wrap my brain around this one to make sure I had the decision clear before posting. In the same interaction, police conducted both an unlawful search, but later a lawful search of the same individual. Let’s start with the facts in brevity (R. v. Tim 2022 SCC 12):

A member of the public called 9-1-1 to report a single-vehicle collision on Memorial Drive in Calgary. The driver’s car had veered off the road, hit a roadside sign, and continued for about a kilometer before it became disabled. Fire, medical, and police services rushed to the scene. The driver (and lone occupant) was standing at the side of the road talking to a firefighter when a police officer arrived. The officer, suspecting that the driver had fled the scene of the collision, approached him and asked if he had been involved in an accident. The driver acknowledged that he had hit the sign, but he claimed that he could not stop. The officer asked the driver for his driver’s licence, vehicle registration, and proof of insurance. The driver said he would get the documents from his car. The officer followed him as he did so. When the driver opened the driver-side door, the officer saw a small ziplock bag containing a single yellow pill near the window controls in the door area. The driver’s eyes motioned to the pill, and he quickly swiped it to the ground outside of the car, as if he were trying to hide it. The officer recognized the pill as gabapentin, which he had seen trafficked on the street with illegal drugs such as fentanyl and methamphetamine. Because the officer believed that gabapentin was a controlled drug under the CDSA, he immediately arrested the driver for possession of a controlled substance. After the driver was arrested, the police conducted four searches:

  • In the first search, the officer conducted a pat-down search of the driver incident to arrest. This search revealed live ammunition for a .22 calibre rifle and a .45 calibre handgun, five fentanyl pills, two pills later identified as hydromorphone (an opioid and controlled substance under the CDSA), two pills later identified as alprazolam (a tranquillizer and controlled substance under the CDSA), another gabapentin pill, three cell phones, and $480 in cash.
  • In the second search, another police officer, who arrived moments before the arresting officer placed the driver under arrest, searched the driver’s car incident to arrest. He found a folded serrated knife, a canister of bear spray, four fentanyl pills, and two pills later identified as alprazolam.
  • In the third search, the arresting officer searched the driver again because he became concerned that the first search might have missed some items. His suspicions were aroused because the driver was walking strangely while being taken to the patrol car: he was limping and shaking his leg, as if he had something hidden in his pants or falling down his pant leg. The officer then saw .22 calibre ammunition fall from the leg of the driver’s pants. While searching his person, the officer touched the outside of the driver’s pants in his groin area and felt a metal object. A double-barrelled handgun immediately fell from his pants. The gun was loaded with two live rounds, one in each barrel.
  • In the fourth search, the driver was strip searched at the police station. He was asked to strip down to his underwear and an officer searched around his waistband to see if he had hidden anything else. No more contraband or weapons , etc. were found.

Section 9 of the Charter provides that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” Consistent with this purpose, a lawful arrest or detention is not arbitrary, and does not infringe s. 9 of the Charter, unless the law authorizing the arrest or detention is itself arbitrary. By way of reminder for this post, Sections 495(1)(a) and (b) of the Criminal Code provide that a peace officer may arrest without warrant “a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence” or “a person whom he finds committing a criminal offence”. Unfortunately, the officer arrested the driver for possession of gabapentin specifically. The officer knew the facts — he correctly identified the pill as gabapentin at the time he saw it — but mistakenly concluded that possession of gabapentin was an offence, when, in law, it was not, because that drug is not a controlled substance under the CDSA. Justice Mahmud Jamal, writing for the majority, said the court is not suggesting that the police must see and correctly identify a specific drug from the hundreds of controlled substances under the CDSA before they may lawfully arrest a suspected drug offender. Police routinely arrest suspected drug offenders for potential infractions of the CDSA, even when they do not see or identify specific drugs. Courts routinely uphold the legality of such arrests, if they conclude that there were reasonable grounds to arrest, but in this specific case, “If the offence that the police officer believes has been committed simply does not exist, the officer does not have the power to … arrest the person…”.

Turning now to the four searches, this is where things were muddied, but I believe I have it figured out (here’s hoping):

  • The first two searches — the initial pat-down search of the driver and the search of the driver’s car on discovering the gabapentin — were purportedly conducted incident to arrest, which must meet three conditions: (1) the person searched is lawfully arrested; (2) the search is “truly incidental” to the arrest, i.e., for a valid law enforcement purpose related to the reasons for the arrest; and (3) the search is conducted reasonably. Here, the initial pat-down search of the driver and the search of his car incident to arrest falter on the first condition: he was not lawfully arrested. Thus, the first two searches necessarily breached s. 8 of the Charter.
  • The third search was purportedly undertaken incident to an investigative detention. How you ask? Well, the police’s interaction with the driver was at first a traffic collision investigation. The arresting officer testified that he came to where the driver’s damaged car had stopped and approached him because he suspected that he had fled the scene of a collision with a roadside sign. In doing so, the officer was properly exercising investigatory powers under Ontario provincial traffic law (I won’t expand on this authority in this post) and the Criminal Code (under s. 320.16(1) of the Criminal Code, it is an offence, in certain circumstances, to fail to stop after a traffic accident). R. v. Mann 2004 SCC 52 recognized that the police have a common law power to search incident to investigative detention under certain circumstances. Speaking for the majority in Mann, Iacobucci J. stated that “police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary” (para. 45). He added that a police officer “may engage in a protective pat-down search of the detained individual” when the officer “has reasonable grounds to believe that his or her safety or that of others is at risk” (para. 45). In addition, both the investigative detention and the pat-down search “must be conducted in a reasonable manner” (para. 45; see also R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at paras. 20 and 29-31). Speaking for the majority in Tim, Justice Jamal read the officer’s evidence in context as expressing concern for whether he might have “missed some items” that would pose a safety risk to himself or to others. The officer had just found bullets on the driver during a pat-down search, and then he saw more bullets falling from his pants. The driver was “limping and shaking his leg”, as if he had “something concealed in his pants”. The obvious “something” was a gun, said the court. When there are concealed bullets, there may be a concealed gun. The further pat-down search of the driver, in which the officer dislodged a loaded handgun by merely touching the outside of the his pants, was also conducted reasonably. This search did not breach s. 8 of the Charter.
  • The fourth search, the strip search (although nothing further was found), was also ruled to be lawful: reasonable grounds exist to justify a strip search “where there is some evidence suggesting the possibility of concealment of weapons or other evidence related to the reason for the arrest” (R. v. Ali 2022 SCC 1, at para. 2; see also R. v. Golden 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 94 and 111). The strip search must also be conducted reasonably, in a manner that “interferes with the privacy and dignity of the person being searched as little as possible” (Golden, at para. 104). Here, the driver was lawfully arrested for the weapons offences after the ammunition and the handgun fell from his pants. The officer testified that, following the third search, he “seized the items that fell onto the ground out of [the driver’s] pant leg … and then [he] placed the [driver] in [his] vehicle, where he was chartered and cautioned”. The strip search at the police station was incident to this weapons arrest, because it was for the purpose of discovering concealed weapons or evidence related to the offence for which the driver was lawfully arrested, it was minimally intrusive as it was conducted reasonably, in a manner consistent with the SCC’s guidelines for strip searches (see Golden, at paras. 101-2). It was performed at the police station, it was limited to the driver’s underwear waistband, and the driver wore his underwear throughout the search. It therefore did not infringe s. 8 of the Charter.

So, to sum up, the majority of the SCC found that the initial pat-down search of the driver and the search of his car infringed s. 8 of the Charter (because he was arrested, and his car search, incident to an unlawful arrest for a drug not controlled under the CDSA), but the further pat-down search and the strip search did not as it was incident to an investigative detention (e.g., 320.16(1) CC) for a traffic collision investigation, the officer had concerns for his safety given that he had just found bullets on the driver during a pat-down search, and then he saw more bullets falling from his pants. The driver was “limping and shaking his leg”, as if he had “something concealed in his pants”. This lead to an arrest for weapons offences and a subsequent strip search.

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Search incident to arrest considered in detail and modified in relation to residential arrests.

It appears this is the first time that the Supreme Court of Canada has pointedly considered the search incident to arrest power applied inside a home. In R. v. Stairs 2022 SCC 11, a call was placed to 9-1-1 to report a man repeatedly hitting a woman in a car. Police officers located the car parked in the driveway of a house. They knocked on the front door and loudly announced their presence, but no one answered. Fearing for the woman’s safety, they entered the house. A woman with fresh injuries to her face came up a flight of stairs leading from the basement. The accused then ran past the bottom of the staircase and barricaded himself in the basement laundry room, where he was arrested a short time later. After the arrest, the police conducted a visual clearing search of the basement living room area, from which the accused and the woman had just emerged. During the search, the police saw a clear container and a plastic bag in plain view containing methamphetamine (over 90 grams). The accused was charged with possession of a controlled substance for the purpose of trafficking, assault, and breach of probation.

The accused brought a pre-trial application alleging, among other things, violations of his right against unreasonable search and seizure protected by s. 8 of the Charter. The trial judge found no breach of s. 8 and no basis to exclude the methamphetamine. She held that it was reasonable for the officers to do a quick scan of the basement living room after the accused was arrested, that the search had a valid objective, and that the search and resulting seizure were lawful. The accused was convicted of all charges. He appealed his conviction for the drug offence on the basis that the drug evidence was improperly admitted. A majority of the Court of Appeal upheld the conviction, holding that the search and subsequent seizure of the methamphetamine did not breach the accused’s s. 8 Charter rights. The majority was of the view that the search was a search incident to a lawful arrest, that the common law standard for search incident to arrest applied, and that the search of the basement living room met this standard. The accused’s appeal was dismissed by a 5-4 SCC majority on the reasonable suspicion standard for searches incident to arrest inside a home.

The SCC discussed that the baseline common law standard for search incident to arrest requires that the individual searched has been lawfully arrested, that the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose connected to the arrest, and that the search is conducted reasonably (R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at paras. 21 and 27). In the past, the SCC has tailored this standard in several contexts to comply with s. 8 of the Charter. The search incident to arrest power has been eliminated for the seizure of bodily samples (R. v. Stillman, [1997] 1 S.C.R. 607), and the standard has been modified in other situations presenting a heightened privacy interest in the subject matter of the search, such as strip searches, penile swabs, and cell phone searches (R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518; Fearon).

In the present case, the appeal to the SCC raised two issues: (1) whether the search of the basement living room incident to arrest was unreasonable, contrary to s. 8 of the Charter; and (2) if so, whether the methamphetamine seized by the police should be excluded under s. 24(2) of the Charter. This post will focus on the 1st issue.

In short, the SCC has enunciated a two-part analytical approach for determining whether the common law standard for search incident to arrest should be modified to comply with s. 8 of the Charter …:

(1) Stage One: Determine whether the search satisfies the common law standard for search incident to arrest.
(2) Stage Two: If so, determine whether the standard must be modified to comply with s. 8 of the Charter, given the particular privacy interests and law enforcement objectives at stake.

The SCC said that the common law standard of search incident to arrest should be modified — and made stricter — to reflect an accused’s heightened privacy interest in their home, depending on whether the area searched is within or outside the physical control of the arrested person. Where the area searched is within the arrested person’s physical control, the common law standard continues to apply. However, where the area is outside their physical control, but it is still sufficiently proximate to the arrest, a search of a home incident to arrest for safety purposes will be valid only if:

  • the police have reason to suspect that there is a safety risk to the police, the accused, or the public which would be addressed by a search; and
  • the search is conducted in a reasonable manner, tailored to the heightened privacy interests in a home (as a general rule, the police cannot use the search incident to arrest power to justify searching every nook and cranny of the house. A search incident to arrest remains an exception to the general rule that a warrant is required to justify intrusion into the home. The search should be no more intrusive than is necessary to resolve the police’s reasonable suspicion. Further, it would be good practice for the police to take detailed notes after searching a home incident to arrest. They should keep track of the places searched, the extent of the search, the time of the search, its purpose, and its duration).

In Stairs, the dynamic before and during the arrest and the nature of the offence for which the accused was arrested were factors that figured prominently in the reason-to-suspect analysis. The situation was volatile and rapidly changing, and the arrest was for domestic assault. In domestic violence cases, the police are not only concerned with the privacy and autonomy of the person arrested; they must also be alert to the safety of all members of the household, including both known and potential victims, said the majority. In addition, the search was conducted reasonably. It took place right after the arrest and the police merely conducted a visual scan of the living room area to ensure that no one else was present and that there were no weapons or hazards. The spatial scope of the search was appropriate: the living room was part of the surrounding area of the arrest, it appeared to be a common living room space, and the police engaged in the most cursory of searches, which was the least invasive possible. The search of the living room incident to arrest did not violate the accused’s s. 8 Charter right, and the evidence from the living room search was therefore properly admitted at trial because.

Given the factual matrix of this case, the SCC mentioned that it was not necessary to decide whether reasonable suspicion also applies to investigation-related purposes, such as evidence preservation and evidence discovery. They left that issue for another day.

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Consent – not as clear-cut as it was in the yesteryears…

Reeves (R. v. Reeves 2018 SCC 56) shared a home with Gravelle, his common-law spouse. They were joint titleholders and had lived with their two daughters in this home for ten years. In 2011, Reeves was charged with domestic assault following an altercation with Gravelle and her sister. After this incident, a no-contact order was issued which prohibited Reeves from visiting the family home without Gravelle’s prior, written, and revocable consent. In October 2012, Gravelle contacted Reeves’ probation officer to withdraw her consent. She also reported that she and her sister had found what they believed to be child pornography on the home computer. They had found it in 2011.

Later that day, a police officer arrived at the family home without a warrant. Gravelle allowed the officer to enter. Gravelle signed a consent form authorizing the officer to take the home computer, which was located in the basement, a shared space in the home. The officer testified that he sought Gravelle’s consent because he did not believe he had reasonable grounds to obtain a warrant to search the home and seize the computer. The computer was owned and used by both spouses. Reeves was in custody on unrelated charges when the computer was taken by the police.

The police detained the computer without a warrant for more than four months, but did not search it during this time. They failed to report the seizure of the computer to a justice, as required by s. 489.1 of the Criminal Code, during this period. In February 2013, the police finally obtained a warrant to search the computer and executed it two days later. The police found 140 images and 22 videos of child pornography on the computer. Reeves was charged with possessing and accessing child pornography.

Reeves succeeded on a pre-trial application to exclude evidence based on a breach of his s. 8 Charter rights. The application judge found that Reeves had a reasonable expectation of privacy both in his home and its contents, including the computer. He found that Reeves’s rights were violated through the warrantless search and seizure of the computer from the home because he did not consent, by retaining the computer for four months without reporting the seizure to a justice and that the ITO relied upon to secure the warrant to search the computer was insufficient, so the warrant should have been denied. The judge found that the Charter-infringing conduct was serious as was the impact on Reeves’s Charter-protected interests and ordered that the evidence be excluded. As a result of the exclusion of evidence, the Crown’s case was gutted and an acquittal was entered. The ONCA found that while Reeves was a joint owner of the home, he had a minimal reasonable expectation of privacy in it as he could not access the home without his partner’s consent, she had revoked her consent, and he was in custody at the time. Seizing the computer did not interfere with Reeves’s heightened expectation of privacy in it or imperil any of his legitimate interests. Reeves’s partner could consent and her consent was valid as it was voluntary and informed. As a result, the evidence was admissible and a new trial was ordered.

Before I get into the SCC’s decision here, recall for a moment the R. v. Vu 2013 SCC 60 decision, which essentially ruled that:

[i]f, in the course of a warranted search, police come across a computer that may contain material for which they are authorized to search but the warrant does not give them specific, prior authorization to search computers, they may seize the device but must obtain further authorization before it is searched (para. 3; see also para. 49).

So, part of the issue here was no statutory or common law authority could have justified the computer seizure in this case. If the police had had a warrant to search the home, Vu would have justified the seizure — but not the search — of the computer. The key issue in this case, then, was whether the police officer could rely on the consent of Reeves’s spouse to take the shared computer from their home?  To a lesser degree, whether the police infringed Reeves’s Charter rights by (1) entering the shared home without a warrant; and (2) taking the shared computer without a warrant.

The SCC said that, in short, the issue of whether police entry into a shared home with the consent of one resident violates the Charter raises complex questions that require a considered response, and they would be best answered in a case that directly turns on this issue, with the benefit of full submissions. Therefore, in this case, the legality of the police entry did not affect the legality of the taking of the computer.

At para. 47:

“…in light of the deeply intimate nature of information that can be found on a personal computer, Reeves’s subjective expectation of privacy was objectively reasonable. His spouse’s consent could not nullify his reasonable expectation of privacy in the computer data. Indeed, both the Crown and the Court of Appeal appear to have recognized that Reeves had a reasonable (although diminished) expectation of privacy. While Reeves’s reasonable expectation of privacy in the computer was limited, given that he shared control over the computer with his spouse, it still suffices to trigger the protection of s. 8 of the Charter …. Indeed, “[a] reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter” ….

The SCC then turned to the alternative proposition that underlied the Crown’s argument — that Reeves’ Charter rights were waived by Gravelle’s consent. The presumptive warrant requirement for seizures captured by s. 8 of the Charter is not triggered if Reeves’s Charter rights were waived. The Crown’s argument that there was no seizure within the meaning of the Charter when a party with an equal and overlapping privacy interest provides consent would effectively permit the consenting party to waive the privacy rights of the other parties. This would be inconsistent with the Court’s decision in R. v. Cole 2012 SCC 53, said the SCC (the third-party consent doctrine – although a person may not have exclusive control over the home and computer, control does not need to be exclusive to support a reasonable expectation of privacy. By assuming the reasonable risks of shared living, a person does not assume the risk that the police can enter a shared home and seize its contents at the sole discretion of a co-resident).

According to the SCC, Reeves had a reasonable expectation of privacy in the shared computer, and his rights had not been waived. Accordingly, the taking of the computer by the police constituted a seizure within the meaning of s. 8 of the Charter. This warrantless seizure was not reasonable because it was not authorized by any law. The seizure therefore violated Reeves’s rights under s. 8 of the Charter. Given the seriousness of the state conduct and of its impact on Reeves’s Charter-protected interests, the application judge was correct in concluding that the admission of the evidence would bring the administration of justice into disrepute. The evidence was excluded and the acquittal restored.

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Godoy – 20 years later – misunderstood or misapplied?

Uniformed officers in R. v. Pireh 2018 ABPC 291 responded to a complaint from a person who resided in a condo complex. The complainant heard what sounded like people were being thrown around and there was yelling, banging, and thrashing going on in the unit; it sounded like they were throwing each other around, but the complainant wasn’t sure if it was fighting or playing. Other information obtained was a smell of marihuana coming from the place. The complainant also believed that there were four people living in that suite. No children that they knew of lived there, and the occupants that lived there were adult males in their early 20’s.

On arrival, police had a conversation with the complainant, whom the police had to contact to gain access to the condo complex. At that time, the complainant indicated that it sounded like the males were fighting in the suite. It sounded like they were being thrown up against the walls. The complainant identified the exact suite where the sound was coming from.

As police approached the door to the suite, it was silent. There were no sounds coming from the suite. Contrary to the information provided by the complainant that there was a smell of marihuana coming from the suite, when the police arrived, they did not smell marihuana coming from the suite. Police knocked at the condo door, and it answered by Pireh, but he simply cracked the door open just enough for him to poke his head out. The officer wasn’t able to see inside the suite. He identified himself and advised Pireh that due to a concerned neighbour that heard what sounded like a physical confrontation in his suite, that they were there to check on the welfare of everyone in the suite.

Pireh was not forthcoming with information and didn’t want police to have access to the suite. Pireh stated that he was just playing around with his cousin, but didn’t want police to come in. The officer advised him that due to the complaint of sounds of people being thrown around into walls and thumping and banging, they were there to check on the welfare of everyone in the suite to ensure nobody was in any medical distress or injured. Again, Pireh didn’t want to let them into the suite. The officer then advised Pireh that they were coming into the suite based on their common law duty to ensure nobody in the suite was in any kind of medical distress or in need of any assistance. At that point, Pireh opened the door and officers entered the suite.

As soon as officers entered the suite, they identified a male as Pireh’s cousin, Eskandar, standing in the hallway. Pireh went into the living room area. An officer followed Pireh into the living room area to discuss what was going on, and to ensure no one was in any kind of need. Both Pireh and Eskandar “appeared sober, calm, no injuries.”

Pireh stood next to the couch and white coffee table in the living room area. Almost immediately, an officer noticed what appeared to be a black handgun on the white coffee table. At that time, the officer grabbed the gun to secure it and verify it was a real firearm. When he picked the gun up, he was able to verify it was a real firearm. He ejected the magazine and found 7 rounds of 9mm ammunition in the magazine. He then worked the action to eject any live round from the chamber. No live round was ejected. He then made the firearm “safe.” There was no trigger lock on the gun and it was not secured in any kind of container. The handgun was a 9mm Smith and Wesson. The serial number was defaced. After making the gun safe, he placed it on the kitchen counter.

After telling his partners that he had found a live handgun, officers arrested Pireh. After Pireh was arrested, and having been informed that 4 males lived in the suite, officers carried on searching the suite to ensure there were no other people that may be injured were there. Officers then searched the laundry room, and then entered a bedroom. No other people were found. The bedroom was messy with piles of clothes everywhere. On exiting the bedroom, an officer noticed a dresser against a wall with some of the dresser drawers partially opened. Inside one of the drawers he noticed a bundle of money wrapped in a rubber band and two clear plastic bags containing what appeared to be crack cocaine (one of the plastic bags was later determined to contain 24.3 grams of crack cocaine. The other bag contained 7 grams. The combined weight was 31.3 grams). Police applied for and later returned to the suite to execute a CDSA search warrant – less than 30 grams of marihuana was also found, and some documents in the name of the other tenants of the condo. Pireh was charged with 11 offences relating to the handgun, readily accessible ammunition, and drugs.

The judge examined that emergency calls can originate from a number of different sources. In many cases, there is evidence of a 911 call, or 911 hang-up call, that may relate to both domestic and non-domestic situations, originating from complainants both inside and outside a private residence. Absent there being a 911 call, the police agency in question had created a list of priority calls, categorized in terms of seriousness and immediacy, as priority # 1, # 2 and # 3 calls. Again, these calls may relate to both domestic and non-domestic situations, and originate from complainants both inside and outside a private residence. Finally, according to the evidence adduced in this case, the agency had created a list of codes to identify a particular situation (i.e., code 1014 – causing a disturbance) that may or may not be ongoing, and may relate to domestic and non-domestic situations, originating from complainants both inside and outside a private residence.

In terms of applicable legal principles, the trial judge drew no distinction between a 911 call and a priority # 1 dispatch call. In the circumstances of this case, the police treated them in the same way as requiring an immediate response to an emergency situation. As well, in terms of applicable legal principles, the judge drew no distinction between a call to the police originating from inside a private residence and a call originating from outside the residence. As the judge cited, an informed caller from outside the apartment describing the nature of the emergency is a more reliable justification for a concern about the health and safety of the occupant of the apartment than is a disconnected telephone call. In the judge’s view, the  analysis relating to 911 calls, and analogous 911 calls, was equally applicable to the police responding to an outside complaint of a code 1014 – causing a disturbance call. In determining if an immediate police response to an emergency situation was required, the court had to examine all the surrounding circumstances, including the context of the complaint, and the situation at the residence on arrival by police.

The judge found that the complaint received by the police in this case was not a 911 emergency call, or a priority # 1 complaint or a domestic situation. Police were not certain that it was, and when viewed along with the totality of the evidence, evidence in this regard was not reliable. The complaint in this case was a police response to an outside, code 1014 – causing a disturbance call, placed by a neighbour who lived in the same building as the accused. Based on the totality of the evidence, the judge accepted that the police had an honest belief that they were entitled to enter the accused’s suite to ensure the safety of everyone that may have been in the suite.

At paras. 136-137:

“The difficulty in this case is that the police only had limited information as to what an outside third party said she heard going on in the suite. The credibility and reliability of the complainant could not be tested because she did not testify in the voir dire. When the police attended at the building and approached the door to the accused’s suite, it was silent. There were no sounds coming from the accused’s suite. Contrary to the information provided by the complainant that there was a smell of marihuana coming from the suite, when the police arrived, they did not smell marihuana coming from the suite. When the accused answered the door, the police described both him and Eskandar… “appeared sober, calm, no injuries. Although the police could not see into the suite, there is no evidence that anything was going on in the suite at the time.”

“When viewed objectively, the limited information available to the police as to what may have been going on in the accused’s suite, what they saw at the scene, and their conversation with the accused at the door, did not give rise to an emergency situation that would entitle this Court to view the code 1014 – causing a disturbance call as analogous to a 911 call. This case boils down to a complaint made by a disgruntled neighbour about sounds… “people being thrown around, yelling, thumping and banging, isn’t sure if it’s fighting or playing…” coming from the suite occupied by the accused and three other males in their 20’s, no women or children or anyone being in distress mentioned.”

The judge ruled that the Crown had failed to satisfy the court on the balance of probabilities that the police had reasonable grounds to enter the accused’s suite pursuant to their common law duty to ensure the safety of everyone that may have been in the suite. Therefore, the entry by police into the accused’s suite and search was not authorized by law and violated section 8 of the Charter.

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Warrantless tracking or “pinging” of a cell phone…

R. v. Day [2018] N.J. No. 370 – police were engaged in a police chase of a vehicle. The police stopped the chase when it seemed dangerous but determined the owner of the vehicle (Romaine Fudge – no relation). The owner said the vehicle was loaned to Day and Keefe, an individual known to the police and wanted on an arrest warrant. Keefe was known to be the driver of the vehicle. The police obtained Day’s cell phone number from the owner and requested that OCC conduct a cell phone ping to determine Day’s location. The police did not seek a warrant to authorize the search. The police made several pings. The police later located the vehicle at the owner’s residence. Keefe and Day had returned the vehicle and left on foot. There was no evidence that Day was suspected of having committed any offence. Day and Keefe were located and arrested. It was during the arrest of Keefe that Day resisted arrest, assaulted a peace officer, uttered threats to cause death, and breached conditions of an undertaking.

Day argued that her rights under s. 8 of the Charter were violated. The Crown admitted that the pinging of Day’s cellphone was a warrantless search but argued that it was necessary for officer safety because Keefe had a history of violent and unpredictable behavior.  To officers not familiar to this provision of the Code, Section 492.1 sets forth the grounds upon which the police may obtain a warrant for a tracking device such as a cell phone at subsection (2):

A justice or judge who is satisfied by information on oath that there are reasonable grounds to believe that an offence has been or will be committed under this or any other Act of Parliament and that tracking an individual’s movement by identifying the location of a thing that is usually carried or worn by the individual will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain that tracking data by means of a tracking device.

Section 487.11 of the Criminal Code states:

A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

As you can see, Section 487.11 does not reference subsection 492.1(2). The question remains as to whether, in the absence of a warrant and the statutory authority pursuant to section 487.11, the police may rely on a common law authority to conduct a search in exigent circumstances.

This search (“ping”) was not incident to arrest, but any informed officer will know that there does exist a common law authority to conduct a warrantless search even where, as in this case, that authority is not codified. The issue of exigent circumstances appear to rest on two bases: the first basis relates to the risk of imminent loss or destruction of the evidence or contraband before judicial authorization could be obtained; the second basis emerges where there is a concern for public or police safety.

In the case of Day, the Crown did not allege that the exigent circumstances relied upon by the officer were in relation to the loss of evidence but rather that the exigent circumstances involved a danger to people. The trial judge ruled that although there may have been some risk to the police officers and to the public during the high speed pursuit of Keefe which could constitute exigent circumstances, that risk was eliminated once the chase was discontinued by police and certainly once the vehicle was located at the home of the lawful owner. There was no evidence that the officers themselves were in danger and the statement of one officer that “they (Day and Keefe) might break into someone’s home” while evading police was groundless and speculative. The judge was satisfied that the officer chose to disregard the rights of Day to be protected against unreasonable search and seizure based on the convenience of locating Keefe and for fear, not that he might cause harm, but that he may evade the police.

The use of Day’s cellphone to track Keefe was willful and in reckless disregard of her Charter rights and had a serious impact on her reasonable expectation of privacy. Given that the offences occurred when Keefe was arrested, there was no basis to believe that they would have occurred at all if the breaches were not perpetrated. The judge ruled that the admission of evidence obtained by police subsequent to the breach would bring the administration into disrepute.

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Teacher using concealed camera to make surreptitious video recordings of female high school students – voyeurism?

What defines expectation of privacy for the Criminal Code offence of voyeurism? R. v. Jarvis 2019 SCC 10 was largely about a teacher in a high school who used a covert, miniature camera to take videos of young women’s cleavage over more than a year. It was discovered and he was charged under the relatively new voyeurism offence in the Code. Two essential elements of the offence are that there have to be circumstances that give rise to a reasonable expectation of privacy and the recording has to be done for a sexual purpose. In Jarvis, the recording took place in otherwise “public areas” of the school, so not in washrooms or changing rooms. It also has to be “surreptitious”, but the observation itself was not surreptitious. What was being recorded was largely observed in real-time by the teacher. The recording was surreptitious.

While the trial judge found that the students the accused had recorded were in circumstances that give rise to a reasonable expectation of privacy, he acquitted the accused because he was not satisfied that the recordings were made for a sexual purpose (it’s hard to get my head around that, as the teacher had many, many recordings spanning more than a year of students’ cleavage and chest areas. I’m not sure what other purpose he could have had, but what do I know?). The Court of Appeal unanimously concluded that the trial judge had erred in law in failing to find that the accused made the recordings for a sexual purpose. Nevertheless, a majority of the Court of Appeal upheld the accused’s acquittal on the basis that the trial judge had also erred in finding that the students were in circumstances that give rise to a reasonable expectation of privacy (the court was split on the reasonable expectation of privacy in a “public place” where the young women could generally be observed by teachers and other students). 

The SCC ruled that… “Privacy”, as ordinarily understood, is not an all-or-nothing concept, and being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording. Rather, whether observation or recording would generally be regarded as an invasion of privacy depends on a variety of factors, which may include (these are not word for word how the SCC listed them):

  • a person’s location – the fact that the location was one from which the person had sought to exclude all others, in which she felt confident that she was not being observed, or in which she expected to be observed only by a select group of people may inform whether there was a reasonable expectation of privacy in a particular case.
  • the form of the alleged invasion of privacy – was it an observation or recording? Given that recording is more intrusive on privacy than mere observation, a person’s expectation regarding whether she will be observed may reasonably be different than her expectation regarding whether she will be recorded in any particular situation. 
  • the nature of the observation or recording – relevant considerations may include whether the observation or recording was fleeting or sustained, whether it was aided or enhanced by technology and, if so, what type of technology was used, etc.
  • the activity in which a person is engaged when observed or recorded and the part of a person’s body that is the focus of the recording – relevant considerations may include whether the observation or recording targeted a specific person or persons, what activity the person who was observed or recorded was engaged in at the relevant time, and whether the focus of the observation or recording was on intimate parts of a person’s body.
  • any rules, regulations or policies that governed the observation or recording in question – although formal rules, regulations or policies will not necessarily be determinative, in this case, there was a school board policy in effect at the relevant time that prohibited the type of conduct engaged in by the teacher.
  • the relationship between the person who was observed or recorded and the person who did the observing or recording – relevant considerations may include whether the relationship was one of trust or authority and whether the observation or recording constituted a breach or abuse of the trust or authority that characterized the relationship. This circumstance is relevant because it would be reasonable for a person to expect that another person who is in a position of trust or authority toward her will not abuse this position by engaging in unconsented, unauthorized, unwanted or otherwise inappropriate observation or recording.
  • the purpose for which the observation or recording was done – for example, if a patient disrobes to allow a physician to view her breasts or other sexualized parts of her body for the purpose of receiving a medical diagnosis, the patient cannot complain that the physician has breached any reasonably held expectation of privacy by performing the diagnostic procedure. However, if the diagnostic procedure turns out to be a pretext on which the physician relies in order to view the patient for a non-medical purpose — whether sexual or otherwise — the patient’s privacy will undeniably be violated. The SCC said that sexual purpose, as an element of the offence in s. 162(1)(c), must be established beyond a reasonable doubt for the offence to be proven. In some cases, depending on the entire context, observation or recording may not breach expectations of privacy despite having a sexual purpose. In such cases, the offence in s. 162(1) will not be made out. In other cases, observation or recording may be an obvious breach of privacy regardless of its purpose, and it can ground a conviction under s. 162(1) if the other elements of the offence are made out.
  • the personal attributes of the person who was observed or recorded – considerations such as whether the person was a child or a young person may be relevant in some contexts.

Because Jarvis’ videos were of teenage students, were recorded by their teacher in breach of the relationship of trust and of a formal school board policy, were shot at close range, were of high quality and were focused on the bodies of students, Jarvis acted contrary to the students’ reasonable expectations of privacy. The Court entered a conviction and remitted the matter for sentencing.

I suspect after this case, we will see more court cases and discussions around what is an expectation of privacy in generally public places? We’ll also have to think hard about what role technology plays in privacy, particularly where CCTV cameras are said to be largely equivalent to real-time recordings. This will impact our investigations in the months and years to come. As cited in para. 62 of the Jarvis decsion:

“This is not to say that any person who appears in any public place retains a reasonable expectation that she will not be recorded by anyone for any reason: some types of visual recording in public places are to be expected. Rather, it is to emphasize that there is a fundamental difference between mere observation and recording and that this difference is part of the context that must be considered in analyzing reasonable expectations of privacy.”

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It was just a matter of time – do you recall the Patrick (2017) decision?

“Do you have anything on you?”An all too often posited question by us to an arrestee.

To save readers the time in recalling R. v. Patrick (2017) BCCA 57 (application for leave to appeal dismissed by SCC), the BCCA ruled that an officer’s narrowly tailored questions motivated solely by safety concerns are permissible to a detainee about to be frisk searched (the question must be specific to address safety-based concerns and not an attempt on our part to use the search power conferred by Mann as a subterfuge for evidence gathering). The court went on to say that nothing compels a detainee to answer such a question (see my previous post on this case for more details).

Fast forward, in R. v. Fead [2018] A.J. No. 1573, before the officer proceeded with the search subsequent to the arrest of Fead for officer safety, he made an inquiry of her as to what she might have in her possession. The officer had no memory of what he asked her (he made very few notes and had little memory). He provided various possibilities including, “Do you have anything that would hurt me, poke me, stab me?” “Do you have anything on you?” Do you have anything that I need to be aware of, “Do you have anything on you that you should be concerned about?”

Whatever the officer said to her, she responded by acknowledging she had cocaine and syringes in her shoe. The trial judge answered the question of whether it was a narrowly tailored question as to anything in the possession of the detainee that might cause injury to the officer solely motivated by safety concerns in the officer’s favour.  The ABQB disagreed.

The trial judge found as a fact the officer asked “Do you have anything on you?”, but the ABQB ruled that the court record does not support such a finding; therefore, it was an error on the face of the record. It was impossible to conclude the officer asked a narrowly tailored question with respect to officer safety. The officer did ask something, but in his evidence in chief said he had no specific recollection of the question. He testified as to his normal practice as to “anything that would hurt me, poke me, stab me.” He fairly acknowledged it could have been “Do you have anything on you I should be concerned about?” or as broad as “Do you have anything on you?” Interestingly, the syringes could be a response to a safety inquiry, but the cocaine to an evidence collection inquiry. As the ABQB did not know what the officer said, the reasonableness test in Patrick could not be applied.  

The reasonableness test you ask? Well, would a reasonable person consider the question narrowly tailored as to whether a detainee has possession of anything that might injure the searching officer rather than an inquiry to collect evidence? The ABQB found that the warrantless search was unreasonable and a breach of section 8 of the Charter. The evidence should have been excluded.

Lesson for us?  Keep the question specific to address safety concerns in these types of situations; notes, notes, notes…..and if an officer relies on his or her “common practice” as opposed to notes or memory, be prepared to be asked for more evidence respecting your standard practice to further support the reliability of your evidence in this regard, such as how long and how often you have used this standard practice, and how long you have been a police officer, etc.  If defence can show the unreliability of your evidence of common practice (sometimes you do this, but there are times you do that), it won’t fare well for your testimony.

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Can an assistance order under Section 487.02 of the Criminal Code be used to compel an arrestee to unlock their cell phone so that the police can search it?

A judge with the Ontario Court of Justice ruled it can’t.  In R. v. Shergill 2019 ONCJ 54, he was charged with a variety of sexual and child pornography offences in relation to his alleged interaction with a 15-year-old girl. Police seized his smart phone, a Blackberry Priv, incident to arrest. They then obtained a search warrant under s. 487 of the Criminal Code to search the contents of the device, but were unable to execute that warrant because the device was password-protected. Police applied for an assistance order because police argued that currently no technology would allow them to access the contents without risking their destruction. As a result, the police saught a further s. 487 warrant with an assistance order, which if granted, would compel Shergill to unlock the device so that the police could search it.

Shergill argued that the order would be constitutionally prohibited because it would compel him to communicate to the police information currently existing only in his mind for the purpose of assisting them in obtaining potentially incriminating evidence against him. That compulsion, he argued, would be a breach of his s. 7 liberty interests and would not be in accordance with the principles of fundamental justice. Compelling him to participate in his own investigation by revealing information known only to him would violate his right to silence and the protection against self-incrimination, both of which are principles of fundamental justice. In short, Shergill argued that a court order requiring him to communicate his thoughts for the sole purpose of providing access to evidence which may be used to send him to jail would be an unprecedented and unconstitutional use of the assistance order power.

The judge agreed with Shergill.  While the judge accepted that the current digital landscape as it relates to effective law enforcement and the protection of privacy presents many challenges, on his best application of controlling authority, he was simply not persuaded that the order sought can issue without fundamentally breaching Shergill’s s. 7 liberty interests, a breach which would not be in accordance with the principle of fundamental justice which says that he has the right to remain silent in the investigative context. The judge felt that the data on the Blackberry, which the police are only able to access and obtain if Shergill provided his password, is derivative evidence (basically, evidence which comes to light as a result of a compelled disclosure) and must be protected by derivative use immunity in order for the proposed assistance order not to fall foul of section 7 of the Charter.

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Implications Of Bill C-46 – Impaired Driving

The landscape around drinking and driving has changed with the coming into force of new impaired driving laws on December 18, 2018. The Bill charges the wording of the offence to prohibiting a blood alcohol concentration of over .80 within 2 hours of the time of driving. The additional of the 2 hours of the time of driving eliminates the defence of ‘bolus drinking’ where an accused person would argue that they drank a large amount of alcohol just before driving and therefore were not impaired at the time of driving. What is possible here is that, based on the rate of absorption of alcohol into a blood, a person’s behaviour could be criminalized for driving while having alcohol in their system, even if their ability to drive was not actually impaired by the alcohol.

Perhaps the biggest change for us as police officers is that we will now be able to ask for an ASD demand of any lawfully stopped driver, regardless whether we have a reasonable suspicion that they have been drinking. Prior to this change, we needed at least a reasonable suspicion that someone had been drinking. This threshold was a relatively low one to meet: the admission of consumption of alcohol, often coupled with any indicia of impairment, such as glossy eyes or an odour of alcohol, etc. would be enough to give us grounds for an ASD demand. The ability to ask for a demand absent any suspicion of impairment has attracted much criticism from lawyers for violating the right to be free from search and seizure, and will very likely be the subject of a constitutional challenge in the courts.

In addition, Parliament created an offence of having too much drug in your blood. The judge doesn’t have to find that it impaired you, only that the concentration of the drug exceeded the legal limit. Here is the link: https://www.canlii.org/en/ca/laws/regu/sor-2018-148/latest/sor-2018-148.html

Marihuana is looked at differently: if the driver has between 2 and 5 ng/ml of Tetrahydrocannabinol (THC) in his or her blood, then it’s a criminal offence, but it has a lower penalty than regular impaired driving. If the driver has 5ng/ml or more of THC in his or her blood, then it’s punishable by the same penalty as impaired driving or over 80mg% of alcohol. As well, driving with a combination of 50mg% of alcohol and 2.5ng of THC in the blood also carries the same penalty as impaired driving. Although this table is not exhaustive, I’ve attempted to summarize the important changes for officers (I apologize for the table format – WordPress is not user-friendly for creating tables!):

Offence (CC) Old (CC) New (CC) Changes
Dangerous
Driving
249 320.13(1) No substantive change but simplified as
conveyance (new) rather than separate
paragraph offences for motor vehicle, vessel, aircraft, etc. (old).
 
Impaired
Driving
253(1)(a) 320.14(1)(a) No substantive change but now specifies
impairment to any degree.
       
.08 or Over 253(1)(b) 320.14(1)(b) The offence
changes from
having too
much alcohol
in your blood
while driving to having too
much alcohol
in your blood
in the 2 hours
after driving. 
Also, old was
“exceeds 80mg%” – new is
“equal to or
exceeds
80mg%”. Note – the exceptions are given in
subsection (5).
 
Over Drug
Limit
253(3)(a) 320.14(1)(c) The offence is
committed in
the 2 hours 
after driving.
For THC
(marihuana)
there are two
limits: 2ng/mL and 5ng/mL
Note – the
exceptions are given in
subsection (6).
 
Lower
Marihuana
Limit
253(3)(b) 320.14(4) Lower
penalties for 
2ng/mL of THC (marihuana).
 
Over Limit for Alcohol & Drug Combined 253(3)(c) 320.14(1)(d) 50mg% alcohol + 2.5ng/mL of
THC.
 
Refusal 254(5) 320.15(1) Wording added “knowing that a demand has
been made”
and added
separate
offences of 
liability
regarding 
respecting
injury or death at time demand made.
 
Failure to Stop/Remain 252 320.16(1) Old offence was a specific intent offence – “with intent to escape civil or
criminal
liability”. New
offence is a
general intent
offence – the
Crown need not prove any
purpose for the flight. 
Reputable
presumption – “without
reasonable
excuse”
 
Flight from
Police
249.1 320.17 Simpler
language but
repealed bodily harm and
death offences.  As well, only
mentions
“motor vehicle or vessel”, not
conveyance as
the other new
provisions have
 
Driving While
Prohibited
259(4) 320.18(1) Change of
language from
“disqualified”
to “prohibited” – no substantive change.

 

I expect a lot of constitutional arguments in the months and years to come, especially since the new legislation now allows, where legislation compels drivers to report accidents (e.g. provincial Motor Vehicle / Highway Traffic Acts), police to use that information to form grounds for demands.  I’ve made several posts over the years on courts ruling that “statutory compelled statements/reports” are inadmissible when pursuing a simultaneous criminal investigation, so this one will be interesting. Also, because the drug screening equipment isn’t perfect, and gives false positives, defence will argue it’s unconstitutional to use it for sure.  One final note for this post: because of the changes in the presumption sections, breath technicians will need new certificates which detail the results of blank and standard alcohol tests. If you’re a breath technician, you’ll have to start using these new ones now.

 

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