The Wild West

R v West, 2020 ONCA 473

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The Issue

What is the standard for issuance of a Production Order pursuant to s487.014; and where that standard is not properly articulated and met what are the consequences.

The Answer

Section 487.014 requires reasonable grounds to believe (not a reasonable suspicion). Where the Informant asserts only a reasonable suspicion in the ITO and the issuing justice authorizes the Production Order, there will be a violation of section 8 and likely exclusion of evidence under section 24(2), as there was here.

The Fine Print

Section 487.014(2) explicitly requires that the issuing justice or judge be “satisfied by information on oath in Form 5.004 that there are reasonable grounds to believe…”. In the ITO in this case the officer asserted only “grounds to suspect”. This lower standard did not support issuance. The issuing judge erred, as did the trial judge who found the ITO to be valid. The proper interpretation of s487.014 was recently set out in R v Vice Media Canada Inc, 2017 ONCA 231 at para 28 (aff’d 2018 SCC 53):

A production order under s. 487.014 of the Criminal Code is a means by which the police can obtain documents, including electronic documents, from individuals who are not under investigation. The section empowers the justice or judge to make a production order if satisfied, by the information placed before her, that there are reasonable grounds to believe that: (i) an offence has been or will be committed; (ii) the document or data is in the person’s possession or control; and (iii) it will afford evidence of the commission of the named offence. If those three conditions exist, the justice or judge can exercise her discretion in favour of granting the production order. [Emphasis added.]

In this case, the result of this error, which had no valid explanation, was the exclusion of evidence under section 24(2): see paras 30-42.

MCL Nugget: Shaikh ONCA

R v Shaikh, 2019 ONCA 895

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This case deals with the complicated issue of unreasonable delay in the context of an 11(b) application and exhibits the importance of obtaining a waiver of 11(b). It also exposes some of the pressures on the legal system with the lack of courtroom space and the necessity of taking measures to expedite proceedings.

This case deals with the complicated issue of unreasonable delay in the context of an 11(b) application and exhibits the importance of obtaining a waiver of 11(b). It also exposes some of the pressures on the legal system with the lack of courtroom space and the necessity of taking measures to expedite proceedings.

This case deals with the complicated issue of unreasonable delay in the context of an 11(b) application and exhibits the importance of obtaining a waiver of 11(b). It also exposes some of the pressures on the legal system with the lack of courtroom space and the necessity of taking measures to expedite proceedings.

FACTS

On October 6, 2014, the appellant and his former common law partner, Ms. Amer, were charged with uttering death threats, carrying a concealed handgun and pointing a firearm. They were both released on bail and Ms. Amer absconded by leaving the jurisdiction.

Several attempts to have a preliminary inquiry were made but were impeded for various reasons. On the first date of the preliminary hearing, October 4, 2016, Ms. Amer’s charges were withdrawn by the Crown. The preliminary inquiry could not proceed as the court could not accommodate the matter at that time.

On October 6, 2016, the Appellant’s counsel brought an application to get off the record for lack of communication and breakdown in the lawyer-client relationship. The application was denied and the preliminary inquiry judge put the matter over to the next day to deal with unexpected changes, specifically the Crown’s withdrawal of charges against Ms. Amer and the expressed intention to call her as a witness at the trial.

On October 7, 2016, the appellant’s counsel informed the court that he and his co-counsel needed to withdraw for ethical reasons. This was accepted by the preliminary inquiry judge and the counsel were removed from the record. The matter was remanded to November 1, 2016 and then to November 22, 2016 for new counsel to be retained.

On November 22, 2016, new counsel appeared for the appellant and indicated that the appellant wished to re-elect to be tried before the Ontario Court of Justice. On November 28, 2016, the re-election was consented to by the Crown. However, no waiver of 11(b) was obtained by the Crown or offered by the appellant.

On November 30, 2016, the appellant’s counsel expressed intent to bring a section 11(b) application in advance of the trial. On March 3, 2017, an application judge heard the 11(b) motion and the matter was adjourned to the first date set for trial which was March 27, 2017. In her March 29, 2017 reasons, the application judge quantified the total delay from the charge on October 6, 2014 to the scheduled beginning of the trial (March 27, 2017) to be 2 years, 5 months and 21 days. She also noted that since the matter would have to be continued and would not end on March 31st, 2017 as originally anticipated. Based on courtroom availability, the realistic conclusion was determined to be April 12, 2017. In that case, the total delay would be 919 days or 30.2 months.

The net delay was considered secondly which included three periods of ‘defence delay’ between February 24, 2015 and May 2, 2015 (66 days); January 18, 2016 to March 7, 2016 (49 days) and October 6, 2016 to March 27, 2017 (172 days). With the defence delay concessions, the net delay was calculated to be 287 days. The Crown asked the court to treat 7 months of the delay which was caused by the complainant’s travel plans as a discrete event. This was refused as the dates had been set for 10 months down the road and no evidence was presented as to when the airplane tickets were booked, the purpose of the trip or Crown efforts to ascertain the availability of the complainant.

Notwithstanding the appellant’s re-election, the judge applied the 18-month presumptive ceiling and thus the 20-month net delay was identified as presumptively unreasonable. The presumption was rebutted as this was a transitional exceptional circumstance case, this was a busy jurisdiction lacking institutional resources, the matter was moderately complex, the charges were serious and the Crown withdrew charges on the co-accused to expedite matters.

The matter concluded on April 12, 2017 as predicted and the decision was delivered on May 17, 2017. He was convicted of the charges of making a death threat and carrying a concealed weapon but the charge of pointing a firearm was withdrawn.

The appellant renewed his 11(b) application arguing that the time taken to reach a decision should be included in the delay. This was dismissed by the trial judge on July 20, 2017 finding that deliberation delay is not included in calculating periods of delay under Jordan.

ISSUES

The appellant appealed on both 11(b) rulings, arguing that the net delay was mischaracterized and miscalculated. Further, he argued that the deliberation period should be included in calculating delay.

The Crown argued that the appellant initially elected to have a preliminary inquiry and then re-elected to proceed in the ONCJ, thus, the presumptive ceiling which should apply is 30 months.

WHICH PRESUMPTIVE CEILING APPLIES?

At para 46 of Jordan, there court states:

At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry). [Emphasis added].

And then at para 49:

We note the 30-month ceiling would also apply to cases going to trial in the provincial court after a preliminary inquiry.

And in footnote three of the majority decision:

While most proceedings with a preliminary inquiry are eventually tried in the superior court, this is not always the case. For example, a case may go to trial in the provincial court after a preliminary inquiry if the province in which the trial takes place offers this as an option (such as Quebec), or if the accused re-elects a trial in the provincial court following a preliminary inquiry. In either case, the 30-month ceiling would apply.

In the matter at hand, the re-election did not occur after a preliminary inquiry but instead before it had commenced. The court made note of the case of D.M.S. v R, 2016 NBCA 71 where on the date of the preliminary inquiry, the accused waived the hearing and re-elected to be heard in provincial court. The parties agreed the ceiling was 30 months and Quigg J.A. accepted the position at para 17:

In my view, when an accused makes an election and requires the Provincial Court to schedule a preliminary inquiry, barring exceptional circumstances such as a very early re-election to be tried by a Provincial Court judge, the case should be treated as one that included a preliminary inquiry even if the preliminary inquiry is eventually waived.

The court noted that this decision was based primarily on the parties’ joint agreement to proceed with the 30-month ceiling. There was no such agreement here and thus the court found the appropriate ceiling was 18 months.

WAS THE DELAY PROPERLY CALCULATED BY THE APPLICATION JUDGE?

The court determined that the period between February 24, 2015 to May 1, 2015 was misclassified as defence delay. Jordan established at paras 61 to 63 that such delay has two components: periods waived by the accused and periods of delay solely caused by the defence. Upon review, this period was not waived and was not attributable solely to the accused.

The period of delay resulting from the appellant’s counsel’s application to get off the record was treated as a discrete exceptional circumstance. In reclassifying the delay, the court found that at the very least, the delay amounted to 697 days or nearly 23 months.

DID THE APPLICATION JUDGE ERR BY MISAPPLYING THE TRANSITIONAL EXCEPTION?

The court noted that the transitional exception is dependent upon whether the Crown relied on the Morin framework which was pre-Jordan. If the Crown has not, it cannot state that it relied reasonably with respect to delay on the law as it previously existed. The court found that the transitional exception should not have been applied. The delay was presumptively unreasonable by a significant margin that exceeded the Jordan guidelines and that the Morin guidelines, which suggested 8 to 10 months for cases in the OCJ, were exceeded substantially. The court found there was no meaningful demonstration that the Crown had been mindful of its 11(b) obligations, even as they existed prior to Jordan and that the seriousness of the charges and the finality of a stay cannot fairly outweigh those considerations.

CONCLUSION

The appeal was allowed, the convictions set aside and the charges were stayed against the appellant.

MCL Nugget: Goddard BCCA

R v Goddard, 2019 BCCA 164

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 The Issue

Were certain conditions attached to the appellant’s probation vague, overbroad and unreasonable because there was an insufficient nexus between the conditions and the protection of the public and the appellant’s rehabilitation?

The Answer

Of the 23 conditions imposed by the sentencing judge, the British Columbia Court of Appeal struck conditions 17 and 18 as a violation of the Appellant’s rights under the Charter.

The Fine Print

This was a complicated case where the 29-year-old Appellant pleaded guilty to breaching several conditions of his sentence. His criminal record dated back to 2010 and the offences included sexual offences against minors where the internet was used to contact the young victims.

This matter related to a breach of probation where the Appellant pleaded guilty to possessing a mobile phone capable of accessing the internet contrary to section 733.1(1) of the Code. He was sentenced to 1 day in jail followed by 3 years of probation which included 23 conditions. The defence contended that some of the conditions imposed should not be enforceable as they were unauthorized by government legislation and infringed the Appellant’s Charter rights.

At para 19, the BCCA noted the sentencing judge’s wide discretion in determining conditions on probation and that the appellate court will only intervene should there be an error in principle or a condition that is clearly unreasonable/manifestly inappropriate/renders the sentence unfit.

Under section 732.1(3)(h) of the Code, the sentencing judge is able to impose reasonable probation conditions that are considered desirable for “protecting society and facilitating the offender’s successful reintegration into society.” Along with these purposes, the conditions must also be reasonable and compliant with other provincial and federal legislation, including the Charter. “Reasonable conditions” will generally be linked to the particular offence but that is not an absolute requirement. What is required is a nexus between the offender, the protection of the community and the offender’s reintegration into the community: R v Duguay, 2019 BCCA 53 at para 65. R v Proulx, 2000 SCC 5 also held at para 32 that probation has typically been viewed as a rehabilitative sentencing tool and while it may have punitive aspects of effects, punishment will not be the primary purpose of its imposition.

The impugned conditions read as follows (at paras 33 and 34):

Condition 17: You shall, upon your consent, allow any peace officer and/or probation officer to examine any device in your possession and permit any peace officer to bring any device in your possession to the police department to verify compliance with this order. You shall provide any peace officer and/or probation officer any passwords, access codes and manuals associated to any device in your possession to enable examination of the device. If you do not consent, you shall forthwith report to your probation officer and thereafter report daily to him or her until the probation officer decides that daily reporting is not necessary [Emphasis added].

Condition 18: You shall, upon your consent, allow any peace officer and/or probation officer to access your residence to confirm your compliance with the conditions of this order. If you do not consent to allow a peace officer and/or probation officer access to your residence to confirm compliance with conditions of this order, you shall forthwith report to your probation officer and thereafter report daily to him or her until the probation officer determines that daily reporting is no longer necessary [Emphasis added].

The Court noted at para 41 that, “[the Appellant] can refuse to provide consent to these searches. Significantly, however, his refusal comes at the price of daily reporting to his probation officer for as long as the probation officer deems necessary.” The Court found that the threat of daily reporting, should the Appellant not consent to a search, to be extraneous to the purpose of preventing him from using the internet to prey upon children. At para 48, the Court noted about the condition, “[…] it is, in its effect, a retaliatory and punitive measure that appears to be designed to pressure the appellant to waive his constitutional right.”

As noted at para 49, “[f]or a waiver of constitutional rights to be valid it must, among other things, be voluntary, meaning that the individual can choose one course of conduct over another, free from coercion.” The Court stated at para 53 that without the daily reporting provisio, the conditions would likely be acceptable. However, the conditions would simply state that the Appellant could consent to a search and this was unnecessary. Both of the conditions were struck from the Appellant’s probationary order.

MCLNugget: McGuigan ONCA

York (Regional Municipality) v McGuigan, 2018 ONCA 1062

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The Issue

Are the excerpts of a user manual related to the “testing and operation” of a speed measuring device subject to disclosure under the first party regime or production under the third party regime – as well as the related issue of relevance of such records.

The Answer

The “testing and operation” instructions contained in the user manual for speed measuring devices are subject to disclosure under the first party regime. While they are not fruits of the investigation, they are “obviously relevant” and thus disclosable.

The Fine Print

The issue came to the Court of Appeal via an appeal from a certiorari decision – of interest is that in a footnote in the ruling the court commented that the “writ of certiorari is no longer issued We use the phrase the “certiorari order” as shorthand for the more cumbersome “order in lieu of certiorari” [footnote 2]. The Justice of the Peace [JP] had ordered disclosure. The Crown succeeded in quashing that order on the review. The Court of Appeal reinstated the initial order. The notable points include:

First, here the JP had the jurisdiction to “determine disclosure issues and to grant or deny disclosure order…[and] to determine whether the disclosure sought fell within the first party or third party disclosure regime” [para 63].

Second, on the issue of the availability of certiorari, the court noted that s141(4) of the Provincial Offences Act limits such a review to cases where there is a “substantial wrong or miscarriage of justice” [para 58]. Properly considered, certiorari should not have been granted.

Third, the manual related to operation and testing is “obviously relevant” and falls under first party disclosure in line with the principles of R v McNeil, 2009 SCC 3.

MCLNugget: Prystay ABQB

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R v Prystay, 2019 ABQB 8

The Issue

Prystay was charged with a number of offences including possess of a loaded firearm and failing to stop for police. Following his arrest he was detained in custody for 28.5 months. During this period of time he assaulted another inmate. He was consequently placed in administrative segregation – remaining there for 13.5 months. The issues for the court on sentencing were:

1. Did the segregation amount to a violation of sections 7 or 12

2. If so, what remedy – a stay or a sentence reduction via enhanced credit beyond 1.5:1 – is appropriate

The Answer

The placement of Prystay in administrative segregation amounted to a violation of s12. It was not the clearest of cases, however, and a stay was not warranted. As an alternative remedy, the court granted enhanced credit beyond 1.5:1 at a rate of 3.75:1.

The Fine Print

In coming to this conclusion the court touched on a number of points related to detention conditions. First, the court noted the general recognition that pre-sentence custody time is more onerous than sentencing time:

It has long been recognized that time served in remand or pre-trial custody is more onerous than time served in a penitentiary after sentencing.  Not only is the environment harsher, with limited access to programs, but pre-trial custody does not count toward parole eligibility or statutory release: R v Sooch, 2008 ABCA 186 at para 11, 433 AR 270; R v Summers, 2014 SCC 26 at para 26, [2014] 1 SCR 575; R v Adams, 2016 ABQB 648 at para 29, [2017] 4 WWR 741. [Para 19].

Second, with respect to segregation, the court arrived at the following conclusions:

Inmates in either form of segregation are confined to their cell for 23 hours a day. Most are in single cells.  They have two half-hour blocks outside of their cell during each 24 hour period. If an inmate is designated a cleaner for the unit, they may have an additional one to two hours outside their cell. Movement is strictly controlled. ERC staff are separated from the inmates by a steel and glass wall. 

[…]

Arguably, it is the lack of meaningful human contact that is the most pernicious consequence of placement in segregation. Human beings are not meant to be isolated, particularly for extended periods. The longer a person is isolated, the more challenging it is to relate to others in an acceptable way and to form any type of meaningful relationship. [Paras 28, 39]

Third, the court discussed limits and expectations regarding the length of segregation:

To reiterate, Prystay does not challenge his initial placement in AS. His conduct against a fellow inmate warranted this action. The legitimate penal aim in placing Prystay in AS was to ensure the safety and security of other inmates and staff. As outlined below, placement in AS for 13 ½ months went well beyond what was necessary to achieve this legitimate aim. 

Of note, an inmate cannot be placed in DS for more than 14 days at a time: Correctional Institute Regulation, Alta Reg 205/2001, s 46. In contrast, neither the Corrections and Conditional Release Act, s 1992, c 20 (CCRA), nor its regulations, mandate any limit on placement in AS. [Paras 48-49].

Fourth, the court commented on the impact of the “indefinite” placement in segregation on Prystay:

I accept Prystay’s evidence that while in AS, he suffered from auditory hallucinations, paranoia, difficulties sleeping, anxiety and chest pain, feelings of hopelessness, increased antisocial feelings. Given his pre-existing mental health issues and the sheer length of time spent in AS, I conclude he was at increased risk of suffering some degree of permanent impact.   

Despite Prystay not having demonstrated permanent psychological injury caused by his stay in AS, I have no hesitation in concluding that while in AS, he suffered mental injury and physical symptoms and his placement put him at significant risk of permanent psychological injury. 

Finally, I conclude that Prystay’s placement was devoid of procedural fairness and appropriate oversight, and on the evidence, his ongoing placement was not justified. [Paras 82-84].

Finally, in terms of remedy, the court found a stay was not appropriate:

Similarly, while I find the evidence here to be shocking and deeply disturbing, these circumstances fall short of the “clearest of cases,” especially since a reduction in sentence can be fashioned so as to provide an appropriate remedy. [Para 162].

Expecting Privacy?

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Frederic Dwayne Wilson was convicted of five drug related offences. The offences arose out of police surveillance of a rented suite in Vancouver. The police believed it to be a stash house. The trial judge ultimately agreed. After five months of investigation the police arrested Nguyen, co-accused to Wilson, as he left the suite.

A search incident to arrest of Nguyen revealed four kilograms of cocaine and a loaded handgun. This information was used to obtain a warrant to search the suite and Wilson’s home in Surrey. The fruits of those searches provided the evidence that supported the conviction of Wilson. Wilson appealed. The British Columbia Court of Appeal dismissed the appeal: 2017 BCCA 327.

On appeal Wilson argued, inter alia, that:

…the trial judge erred in ruling that Mr. Wilson did not have a reasonable expectation of privacy in the common areas of the condominium complex in which the suite was located or in the video surveillance footage of those common areas. He submits the judge therefore erred in concluding the warrant and the seizure of the video surveillance footage by the police was not a search or seizure within the meaning of s. 8 of the Charter. [@3].

The trial judge dismissed this ground (and the other ones raised). The Court of Appeal agreed with the trial judge that Wilson did not have a reasonable expectation of privacy that was infringed by the police in the common areas. Further, access to the video surveillance footage of these areas did not infringe s8.

In coming to this conclusion the Court of Appeal noted that the trial judge permitted Wilson to argue, in another ground of appeal, that the arrest of Nguyen was unlawful. Citing conflicting authorities in BC on the issue of standing (R v Brown, 2014 BCSC 1872 and R v Todd, 2015 BCSC 680) the trial judge chose the path of “least mischief” and permitted the argument. The Court of Appeal chose not to resolve this issue.

Wilson has filed an application for leave to the Supreme Court: 2018 CanLII 30063. If granted, this case presents two important opportunities for the SCC. First, it presents the Court an opportunity to address the standing issue – an issue which, since R v Marakah, 2017 SCC 59 has left many uncertain about the issue and the scope of standing in Charter litigation.

Second, it presents the Court with an opportunity to add some clarity and certainty to the law in relation to reasonable expectation of privacy in common areas. Since the Ontario Court of Appeal in R v White, 2015 ONCA 508 this issue has been debated and dissected. The law in this area is somewhat fractured. There is undoubtedly well reasoned and principle rulings that support the conclusion that reasonable expectation in common areas is far from certain and in many situations, there is no such expectation – the route to this conclusion, however, remains fluid (see for example R v Wawrykiewicz, 2017 ONSC 569; R v Barton, 2016 ONSC 8003; and R v Douale, 2016 ONSC 3912; R v Dhaliwal, 2017 BCSC 2510 – see also Mack’s Criminal Law Bulletin, issue 2017.08) and the SCC will hopefully take the opportunity to add some concrete footings to the issue.

DM

Holding back the hands of Jordan

John Baron was charged with 28 counts of fraud. He was convicted and sentenced to 6 years jail. Prior to trial Baron brought an application to stay the proceedings based on a violation of s11(b), unreasonable delay. The trial judge dismissed the application. Baron appealed. His appeal was dismissed: 2017 ONCA 772.

Baron was charged with two others, McGill and Houle. In all 59.5 months passed before the conclusion of their trial. The trial judge found no waiver nor any delay attributable to the Crown. The total institutional delay was 18.5 months (8 months in OCJ and 10.5 months in SCJ). The remainder, bulk of the delay, was almost entirely neutral time under Morin – 6 months was attributed to defence delay.

In reviewing the ruling and impugned delay the Court of Appeal agreed with the trial judge that there was no violation of s11(b). A few points are particularly notable.

First, the court agreed that time arising from the removal of counsel was attributable to defence delay. The court further did not entirely reject the position of the Crown that the delay from the removal of counsel to the start of the second dates for the preliminary inquiry should be defence delay – a position which might in other circumstances be accepted. The court explained:

I would allocate the entire time between the date set for the start of the first preliminary inquiry (August 2, 2011) and the date set for the commencement of the second preliminary inquiry (February 13, 2012), that is 6 ½ months, as defence delay. This delay was caused by the removal of counsel from the record and was the responsibility of all three accused. On appeal, counsel for the Crown submits that the entire period of time from counsel’s removal (April 13, 2011) until the second preliminary inquiry (February 13, 2012), namely 10 months, should be deducted. While this position is not unreasonable, I would apply only 6 ½ months because the possibility of proceeding on the original dates might also be said to have been frustrated by other factors. [@48].

Second, delay occasioned by the co-accused was treated as neutral by the applicaton judge under the transitional exception and thus justified delay beyond the ceiling. The Court of Appeal agreed:

Operating within the Morin framework, the application judge was correct to treat the delay caused by the co-accused as neutral time: see Whylie, at para. 24; and L.G., at paras. 62-63. He also recognized the importance in trying co-accused together, a principle that was recently endorsed by this court in R. v. Zvolensky, 2017 ONCA 273 (CanLII), 135 O.R. (3d) 401, per Watt J.A., at paras. 245-255.

This case is not like R. v. Vassell, 2016 SCC 26 (CanLII), [2016] 1 S.C.R. 625, in which Mr. Vassell’s persistent and proactive efforts to have a trial as soon as possible were thwarted by the delay caused by his six co-accused.

Here, the appellant was content with the pace of the proceedings, never raising the issue of severance. Severance was not appropriate in any event, given the complexity of the case, the nature of the allegations, and the evidence common to all three accused. [@62-64].

Third, on the issue of complexity the Court of Appeal rejected the notion that because the trial only took 8 days it was not complex – this approach to complexity is mistaken and has been rejected:

In gauging the complexity of the case, it is an error to focus exclusively on the end product – the trial. Case complexity must be evaluated over the course of the entire proceedings. As Rouleau J.A. held in Picard, at para. 62:

A case can be complex in the earlier stages and require extensive disclosure, the compiling of expert evidence and numerous witness statements, only to be made simpler and more straightforward when it comes time for trial…. These kinds of complexity in the early stages may result in inevitable delays due to extensive disclosure, a lengthy preliminary inquiry and so on, although the case is simple by the time of trial.

[@71].

Fourth, the court noted that the transitional exception was created to avoid the very result sought by Baron – a stay relying on a new regime where the parties were proceeding reasonably under the law that existed before Jordan. In support the Court of Appeal cited the following passage from Pyrek, 2017 ONCA 476 @32:

Finally, in Jordan itself, at para. 98, the court categorized the kind of transitional case in which the delay would warrant a stay, and the present case is far removed from that categorization. The court said: "if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework." The present case was not "simple". The delay did not "vastly" exceed the ceiling. And the delay was [not] caused by… "repeated mistakes or missteps".

Baron is another case in a recent string of cases where the Court of Appeal has rejected s11(b) claims in transitional cases. It is a welcome and principled approach to Jordan.

DM

Milling around in the World of Internet Privacy

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Sean Mills was chatting online. He thought he was chatting to a young girl. He was, in fact, chatting with a police officer. The officer had created an online profile portraying himself as a 14 year old girl. Mills contacted him and then began to chat. Eventually a meeting was set up. Mills was arrested at the meeting. The police had captured the chats between Mills and the officer. The trial judge explained this process.

[6]        …  In order to ensure that he had captured all the information on the screen, Constable Hobbs employed a program called “Snagit” which allows the computer user to capture and copy the information on the screen.  Snagit is a screen shot program that captures video display and audio output.  Constable Hobbs employed the Snagit program on each of his communications with Mr. Mills. 

[7]        The “Snagit” program is a program that is available to the public and commonly used.

Mills was convicted after trial and appealed: 2017 NLCA 12. On appeal to the Newfoundland Court of Appeal the court considered (i) whether Mills had a reasonable expectation of privacy [REP] and (ii) whether there was an "interception" within the meaning of Part VI of the Criminal Code.

With respect to the REP issue, the court rejected the notion that Mills had an objectively reasonable expectation of privacy:

In this case, the analysis focuses on the third and fourth headings identified in Spencer; that is, Mr. Mills’ subjective expectation of privacy in his communications with “Leann” and whether that subjective expectation was objectively reasonable in the circumstances.  Mr. Mills was using electronic social media to communicate and share information with a person he did not know and whose identity he could not confirm.  On an objective analysis, as the sender of such communications, Mr. Mills must have known that he lost control over any expectation of confidentiality that he appears to have hoped would be exercised by the recipient of the messages.  He took a risk when he voluntarily communicated with someone he did not know, a person he was not in a position to trust.  Any subjective expectation of privacy Mr. Mills may have had was not objectively reasonable.  In the absence of a reasonable expectation of privacy, section 8 of the Charter was not engaged. [@23].

With respect to whether there was an intercept, the court held that an "intercept" requires the participation of a third party - the after-the-fact capture of the communication between two parties did not amount to an "intercept".

That language does not alter the ordinary meaning of an interception which requires the involvement of a third party.  Where there is direct communication between two people, the intended recipient cannot be characterized as having “intercepted” a communication meant for that person. 

Further, the fact, unknown to the sender, that the recipient is a police officer cannot change the nature of the communication or transform a receipt by the intended recipient into an interception.  Viewed from another perspective, if “Leann” had, in fact, been a fourteen year old girl, it could not be said that her receipt of the communications from Mr. Mills constituted an interception. [@13-14].

Mills is one in a series of recent decisions on these issues. The REP ruling is particularly helpful and an important one that helps the continuing body of law considering REP in an internet world post-Spencer. The "intercept" ruling is interesting. It is arguably a narrower interpretation of "intercept" than that advanced in Telus as it requires the direct involvement of a "third party" to constitute an intercept. 

DM

Common Privacy?

Matthew Wawrykiewicz was in a hotel room. There was a complaint. The police were called. They entered the hotel room. Found drugs. Wawrykiewicz was arrested. Later the police were able to identify another address connected to the accused – 105 The Queensway. The police began surveillance at that address. They later obtained and executed a warrant. They located more drugs.

At trial Wawrykiewicz sought to exclude the evidence found at 105 The Queensway – in part he argued that the initial entry into the hotel room was unlawful and thus the subsequent search at 105 was unlawful. The trial judge agreed, but admitted the evidence under s24(2): 2017 ONSC 569.

As part of the defence Charter motion, Wawrykiewicz argued that the police surveillance at 105 The Queensawy – which included surveilling him and Poulter (who was also found in the hotel) in common areas of that building – violated s8: see R v White, 2015 ONCA 508. The trial judge disagreed.    

Prior to White was authority for the proposition that there is little or no expectation of privacy in the common areas of an apartment building: R. v. Piasentini, [2000] O.J. No. 3319 (Sup.Ct.); R. v. Thomsen, [2005] O.J. No. 6303 (Sup.Ct.).  As Wein J. pointed out in Piasentini, a contextual analysis is required that requires applying the factors set out in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128.

The court then reviewed rulings in R v Barton, 2016 ONSC 8003 and R v Brewster, 2016 ONSC 4133 noting and adopting, inter alia, the following factors set out in that latter ruling:

• The police must be engaged in activity that constitutes a search: R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8; Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145;
• There must be a reasonable expectation of privacy in the place to be searched, which is determined from a contextual analysis: R. v. Edwards, supra; R. v. Tessling, 2004 SCC 67 (CanLII), [2004] 3 S.C.R. 432; R. v. Plant, [1993] 3 S.C.R. d281;
• There is no reasonable expectation of privacy in observations of a underground parking garages in order to determine an association between an accused person and a building: R. v. Drakes and Brewster, 2009 ONCA 560 (CanLII);
• There is no reasonable expectation of privacy from non-obtrusive observations made in the elevators and hallways of multi-unit buildings.  That includes observations of odours emanating into the common areas or the number of a unit where the suspect enters and exits: R. v. Laurin (1997), 1997 CanLII 775 (ON CA), 113 C.C.C. (3d) 519 (Ont.C.A.); R. v. Thomsen, supra;
• Section 8 of the Charter is only engaged where the police “go beyond making observations that are externally visible or externally emanating into the common areas”: R. v. Laurin, supra; R. v. White, supra.

Turning to the facts the court noted:

1. The police conducted surveillance in the elevator, the lobby and on one of the floors
2. Wawrykiewicz was observed exiting 1905 and using a key to lock the door
3. Wawrykiewicz was observed using a key fob to gain entry into the building
4. There was no evidence regarding the actual connection he had to this residence
5. Wawrykiewicz had bail conditions that required him to reside at a different address

Based on these facts the judge concluded:

I accept that a person may have more than one residence, but in the absence of any further evidence I cannot conclude that Mr. Wawrykiewicz’s expectation of privacy at 105 The Queensway was high.  I therefore find that he had even less of an expectation of privacy in the common areas.

I also cannot conclude that the police engaged in the type of intrusive behaviour that they did White.  They did not cock an ear to a door in order to eavesdrop on a private conversation.  They did not try to determine what Mr. Wawrykiewicz and Ms. Poulter were up to in Unit 1905.  Their sole purpose was to determine whether there was a connection between Mr. Wawrykiewicz and that unit.  As noted by Code J., there is no expectation of privacy in the unit number in a multi-unit building.  I therefore find that there was no stand-alone violation of s. 8 of the Charter in respect of Unit 1905 of The Queensway. @55-56

The Ontario Court of Appeal’s ruling in White has been the subject of much discussion since its release. Putting aside the conduct of the police in that case, the concept of creating an expectation of privacy in common areas is somewhat controversial, or at least subject to much discussion regarding its scope. Wawrykiewicz is a helpful ruling clarify this issue.

DM

Privacy limitations defined

Nour Marakah sent some text messages to Andrew Winchester. They were discussing the purchase and sale of illegal firearms. The police had begun an investigation into several persons who had legally purchased 45 firearms over a six month period. Ultimately that investigation led to Winchester. Eventually grounds were formed, Winchester was arrested and two phones were seized from him. Both were later searched. Text messages from Marakah were found on Winchester’s phone which demonstrated that he was involved in firearm trafficking.

At trial Marakah sought to challenge the search of Winchester’s phone. The trial judge found that Marakah had no standing:

[102] … Once the message reaches its intended recipient … it is no longer under the control of the sender. It is under the complete control of the recipient to do with what he or she wants. In my view, there is no longer any reasonable expectation of privacy in the sender.

Marakah was convicted. He appealed: 2016 ONCA 542. The appeal was heard together with R v Jones, 2016 ONCA 543 and R v Smith, 2016 ONCA 544. 

In addressing the appeal, the court began with basic principles. First, s8 protects people, not places. Second, the right to challenge a search depends upon the accused “establishing that his personal privacy interests are engaged” – standing @27; R v Edwards, [1996] 1 SCR 128 @34-35. Third, not all privacy interests are protected, only a reasonable expectation of privacy is @28.

With respect to standing, the court considered the impact of R v Telus Communication Co, 2013 SCC 16. The court rejected Marakah’s position that Telus supported was determinative of the standing issue. First, in Telus the Abella J (for the majority) expressly declined to decide whether seizure of historical text messages could be done by way of warrant. Second, Telus did not address standing. In short, the assessment of standing must be determined by the “totality of the circumstances” test, Telus is not determinative @39-43.

Next the court rejected the notion that the Edwards framework was insufficient in the circumstances.

In my view, the appellant’s submission that utilizing the Edwards framework does not adequately engage normative considerations relevant to informational privacy claims is not borne out in the jurisprudence. In particular, the submission misses a fundamental point articulated in virtually all of the cases. The particular facts of each case, and not necessarily the category of privacy right claimed (as they can often overlap), will dictate which contextual factors are most and least relevant to the “totality of the circumstances” analysis. @55

Finally, the court considered whether the trial judge erred in finding that the lack of control and access were significant factors weighing against a finding of a reasonable expectation of privacy. The majority of the Court of Appeal agreed with the trial judge:

The facts of this case demonstrate that, unlike in Spencer and Cole, the ability to control access to the information is of central importance to the assessment of the privacy claim. We are not talking about the appellant’s privacy interest in the contents of his own phone, or even the contents of a phone belonging to someone else, but which he occasionally used. We are also not dealing with deeply personal, intimate details going to the appellant’s biographical core. Here, we are talking about text messages on someone else’s phone that reveal no more than what the messages contained – discussions regarding the trafficking of firearms.

This is far from being a question of whether the appellant had “exclusive control” over the content. He had no ability to regulate access and no control over what Winchester (or anyone) did with the contents of Winchester’s phone. The appellant’s request to Winchester that he delete the messages is some indication of his awareness of this fact. Further, his choice over his method of communication created a permanent record over which Winchester exercised control.

It has never been the case that privacy rights are absolute. Not everything we wish to keep confidential is protected under s. 8 of the Charter. In my view, the manner in which one elects to communicate must affect the degree of privacy protection one can reasonably expect.

In this case, the application judge properly focused on the factors of control, access and lack of confidentiality. @63-66.

In the end the majority agreed with the trial judge, Marakah had no standing to raise any constitutional complaint about the search of Winchester’s cellphone. Once sent, there was no objectively reasonable expectation of privacy in text messages received by Winchester.

Marakah, along with Jones, has been appealed to the Supreme Court and is on reserve. Soon we will learn if the Supreme Court has a different view of what is objectively reasonable!

DM