Category Archives: Search and Seizure

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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Is there a reasonable expectation of privacy in a Facebook page?

A judge of the Ontario Superior Court of Justice doesn’t believe there is.  In R. v. Patterson 2018 ONSC 4467, the accused used Facebook Messenger to lure a 15-year-old boy for the purpose of committing a sexual offence [luring]. The victim of the alleged offence provided investigators with his Facebook password and gave them permission to download his communications with the accused. The Toronto Police Service then made a request to the US seeking an order from an American court requiring Facebook to provide the complete record of the accused’s Facebook communications from its servers in Texas. The request was granted and Facebook sent all of the requested records directly to the officer in charge of this investigation.

Patterson applied to exclude the evidence obtained both from the alleged victim and from Facebook based on a violation of his rights under section 8 of the Charter. It was the position of the defence that Patterson has a privacy interest in those messages and that investigators were obliged to obtain warrants from a Canadian judicial officer prior to reviewing the Facebook page or opening the records forwarded by U.S. law enforcement officers.

The defence position is premised on the decision of the Supreme Court of Canada in R.v. Marakah 2017 SCC 59 (a case I posted about earlier). As backdrop, in Marakah the court found that the accused had a reasonable expectation of privacy in text messages which had been seized from his co-accused’s cellphone. Defence in Patterson argued that Marakah is good authority for the proposition that Patterson retains a reasonable expectation of privacy in electronic messages that he sent and received over Facebook despite the fact that those records were saved in the victim’s own Facebook account as well as the Facebook servers in Texas.

In Marakah, it was clear that the applicant had a direct interest in the communications because he was a participant in the text conversations and the author of the messages which were introduced as evidence against him. Patterson’s Facebook activities included several different types of communication: text based conversations with the victim which constitute the actus reus of the offence of child luring; images and text received by Patterson as a member of a Facebook group where members would exchange images of child pornography and fantasize about the sexual abuse of children; the Facebook profiles, background images, and subscriber information which Patterson used to create the Jim Jay, Josh Jay, and Ric Patterson Facebook accounts.

The judge found that Patterson has no direct interest in the first category of communications (the text messages which he sent to the victim). Those messages constitute the actus reus of the offence of child luring. The constitutional rights which protect our privacy have never gone so far as to permit an accused to claim privacy in respect of his own criminal offences, ruled the judge.  As for the second category, the judge said that when a Facebook user joins such a group, he implicitly consents to receiving any communication sent to the group by another member and also consents to his own messages being distributed to every other member. The members of the group have very limited means of confirming the identity of other members and they have no means of preventing members from distributing their communications outside of the group. Patterson arguably has a direct interest in his own contributions to the group but it would be very difficult to find that he has a direct interest in the entire group’s conversation simply because he was a member of it.

The judge said Patterson does have a direct interest in the third category of his Facebook communications (the account details and profile pages for his three Facebook accounts). Bearing in mind that these communications were deliberately left open to any Facebook user to read, the expectation of privacy may be almost negligible but at least it can be said that Patterson has a direct interest in the content.

The judge said in Marakah, text messaging is a narrow, targeted form of communication. Facebook is a broadcast. Depending on the user’s privacy settings, a Facebook page can be read by anyone in the world who is connected to the Internet. Patterson deliberately fashioned the Josh Jay and Jim Jay accounts in order to draw a particular type of Facebook user to his page. He was trolling for young gay males. The female officer was able to navigate to the profile page for both accounts and read the posted biographical information without any need to be accepted as a “friend”. She was able to see the profile pictures that Patterson selected for Jim and Josh Jay, read their biographical information, and see the profiles of those who had befriended them on Facebook. A significant portion of what Patterson sought to exclude is information which he previously invited the world to see.

Thus, said the judge, Patterson’s claim to a reasonable expectation of privacy in his Facebook records dies here. No reasonable person would expect that communications such as these would remain private. Patterson was messaging with a 15 year old boy who had given him no assurance of confidentiality. The communications were conducted over Facebook messenger, a medium which seemingly keeps an indelible record of supposedly private communications. All of the messaging took place over the Internet with snippets and artifacts of the conversation being captured on devices, servers, and systems at every juncture of the communication. As the judge said, a reasonable Internet user might hope that such communications would remain private but no one with even a modicum of understanding of information technology would expect it.

 

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Search warrants and typographical errors

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

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

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

The error?

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

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

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

At para. 36 in Campbell:

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

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

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Checking on child welfare does not necessarily permit warrantless police searches

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Assistance order pursuant to s. 487.02 of the Criminal Code forcing accused to unlock his cell phone by providing the swipe password violates the Charter.

R.v. Talbot 2017 ONCJ 814 – Talbot was arrested for second degree murder and a cellphone was located on his person. The police obtained a search warrant authorizing them to seize and forensically examine the cellphone. However, the phone was locked using a swipe pattern and the attempts to bypass the security had failed. The only other possible method to enter the phone offered no guarantees and risked causing permanent loss of the data and potential evidence from the cellphone. The Crown sought an order pursuant to section 487.02 of the Criminal Code, requiring Talbot to assist the police in accessing his cellphone by providing the screen lock passcodes or PIN codes.

The Defence took the position that the mere act of compelling an accused to assist the police would be in violation of the accused’s section 7 Charter rights. The Defence submitted that the assistance order would compel Talbot to be used as an instrument of the state in order to obtain potentially incriminating evidence to bolster the case against him. The Defence further submitted that the swipe pattern was a product of Talbot’s thought process and provided the gateway to stored information which was intensely personal and would reveal intimate details about Talbot’s life.

Section 487.02 of the Criminal Code states:

“If an authorization is given under section 184.2, 184.3, 186 or 188 or a warrant is issued under this Act, the judge or justice who gives the authorization or issues the warrant may order a person to provide assistance, if the person’s assistance may reasonably be considered to be required to give effect to the authorization or warrant.”

The word “person” is not defined in the Criminal Code. After carefully considering Canadian jurisprudence in this area of law, the ONCJ was not prepared to find that accused persons were specifically excluded from being a “person” in section 487.02 of the Criminal Code. Parliament could have specifically excluded targets of investigations or accused persons, but chose not to do so. Simply because the section had traditionally been used for third parties or non-targets did not automatically exclude an accused person from consideration. However, compelling Talbot to assist the police by providing his swipe password infringed his section 7 Charter rights. An assistance order would breach his right to choose whether to remain silent or communicate with the police. Both the compelled participation and the ramifications for failing to comply would have a significant impact on Talbot’s life, liberty, and security of the person.

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Investigative detention and searching a vehicle

R. v. Lee 2017 ONCA 654 – officers on general patrol in their scout car. At 8:23:10 p.m. they received a call from dispatch that there was a male of Asian descent possibly armed with a gun in the parking lot near the liquor store. This was the dispatch information (computer):

WL2 SCARBOROUGH WIND-MOBILE ADDRESS AVAILABLE BY THE LIQUOR STORE IN A WHITE VEH -BKND714 [the licence plate number]

COMP SAYS HE SAW A LARGE BAG

IT WAS IN THE TRUNK OPEN

COMP BELIEVES HE SAW A GUN – 1M/A.SIAN-30-40’S

COMP SAYS HE JUST DROVE BY A CAR AND BELIEVES HE SAW A GUN

THINKS THIS MALE IS DEALING DRUGS

COMP IS IN A CAR AND DROVE BY THE SUSP VEH-ITS DARK INSIDE THE CAR AND BELIEVES HE SAW IT IN THE MALE’S POCKET

SAYS THE MALE WAS BY HIMSELF AND IN THE DRIVER’S SEAT

VEH COMES BACK AS RENTAL CAR

TRIED TO FIND OUT HOW HE SAW THE GUN IN THE DARK DRIVING BY-CHANGES HIS MIND

BELIEVES HE SAW IT

MALE ALSO HAS A BRN HAT ON

COMP COULD NOT EXPLAIN/CLARIFY EXACTLY WHERE THE GUN MAY BE

The officers then received oral information from dispatch that the vehicle was a white four-door 2009 Toyota. They drove to the liquor store, arriving at 8:24:53, but did not see the vehicle. They exited the parking lot and drove along a nearby road where, a few minutes later, they saw a vehicle pulled over with the engine running matching dispatch’s description of the car and the licence plate. The car had a single male occupant — the appellant — who was Asian and wearing a brown hat. The officers stopped behind the vehicle.

The officers approached the appellant, ordered him to show his hands, opened the car door, and removed him from the driver’s seat. One officer told the appellant he was under investigative detention following the 911 gun call. The appellant looked shocked and said, “No! No!”, in response to mention of the word “gun”. The officer did not immediately inform the appellant of his right to counsel. He did a pat-down search for weapons and found none. The appellant was detained but not handcuffed. The second officer performed a search of the passenger cabin of the appellant’s vehicle and did not find a gun.

A sergeant, who had also heard the 911 gun call, arrived shortly after the responding officers, with two other officers. An officer pushed the button releasing the latch to open the trunk of the appellant’s vehicle. A duffle bag came into view once the trunk was open. The sergeant lifted the bag and found it heavy. Thinking there could be guns inside, he unzipped it. The bag contained 23 kilograms of cocaine. No gun was located.

The investigative detention lasted three minutes. By 8:39 p.m., the appellant was arrested for possession of a controlled substance for the purpose of trafficking. At that time, he was informed of his right to counsel. The next day, the police obtained a search warrant to search the appellant’s vehicle and to seize the duffle bag and cocaine.

The trial judge concluded that the search was reasonable and that, in any event, the evidence seized was admissible under s. 24(2).  Two judges of the Ontario Court of Appeal agreed that the police searched the trunk lawfully, while one judge in the Court of Appeal agreed with Lee’s lawyers that this search went too far.

The appellant raised three issues:

  1. Was the search of his trunk authorized by s. 117.02(1) of the Criminal Code?
  2. Was the search of his trunk authorized by the common law?
  3. Should the cocaine be excluded from evidence under s. 24(2) of the Charter?

The ONCA ruled that the police officers all testified that they did not believe they had grounds to obtain a warrant to arrest the appellant at the time of the search, so s. 117.02(1) of the Criminal Code does not apply. Accordingly, s. 117.02(1) did not authorize the search in this case.

Was the search of the trunk authorized at common law? First, a police officer must have reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. Second, the police officer is entitled to search the individual detained for a weapon where the officer has a reasonable belief that his safety “or the safety of others…is at risk”. The decision to search cannot be premised on hunches, mere intuition, or a vague or non-existent concern for safety, rather, the officer, “is required to act on reasonable and specific inferences drawn from the known facts of the situation”. The search must also be confined in scope to an intrusion reasonably designed to locate weapons. Third, the search must be conducted in a reasonable manner. Fourth, the investigative detention should be brief and the individual detained is not obliged to answer questions.

How did the ONCA decide? First, the investigative detention was necessary. Based on the 911 call, “[the officers] were discharging their common law duty to preserve the peace, prevent crime, and protect life and property”. As a result of confirmation of the specific information in the call, description of the car, licence plate, and description of the individual driving it, the police had reasonable grounds to suspect that the appellant was connected to a particular crime, possession of an illegal weapon, a gun, and his investigative detention was necessary.

Second, the police had reasonable grounds to believe that their safety and the safety of the public was engaged and they were entitled to conduct a protective pat-down search of the appellant and in the particular circumstances, they were also entitled to search the cabin of the car.

Third, the appellant did not submit that the manner in which the search was conducted was unreasonable.

Fourth, there was also no issue that the investigative detention was brief. Here, after receiving the 911 call from dispatch at 8:23:10 p.m., the police were at the liquor store parking lot by 8:24:53 p.m., and they located the appellant only a few minutes later. The appellant was under arrest within sixteen minutes from the time of the 911 call.

The trial judge found the officers reasonably believed the person driving the car was probably the person who had closed the trunk. At para. 28 of her reasons she held:

I find that the officers reasonably believed that the person driving the car was probably the person who closed the trunk as there was no other individual involved. I find that they reasonably inferred that there could have been one or more guns in the car and that the gun that the caller believed he saw could have been moved to the pocket of the Asian male from the trunk or from the pocket to the trunk.

Although two of the ONCA judges agreed, at para. 65 of the decision:

Importantly, this decision must not be read as condoning an unlimited search of a car for police or public safety purposes whenever there is an investigative detention. The jurisprudence makes it clear that it is the totality of the circumstances that must be considered in every case. It is a very factually-driven analysis.

The third judge ruled that the search in this case was not authorized by law and therefore infringed the appellant’s right to be free from unreasonable search and seizure. However, the judge agreed with the majority that the evidence obtained from the search should be admitted under s. 24(2) of the Charter. The third judge went further to say that once no weapon was found on the appellant’s person or inside the cabin of his vehicle within his accessible reach, no further immediate safety hazard existed; the appellant had no immediate access to his trunk and had no means to immediately retrieve anything from the trunk or from the luggage in the trunk that could pose such as hazard. …

The take home? Don’t go into the trunk UNLESS you have specific reasons pointing at a live risk to police or the public (and you are able to articulate that). In the specific facts of this case, the importance of preventing serious injury or death to members of the public in not allowing the appellant to drive away until that threat was dispelled clearly outweighed the additional interference with the appellant’s liberty and privacy interests.  The same may not be in the result in our situation; we must tread carefully.

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