R. v. La, 2012 ABQB 192

Court of Queen ’ s Bench of Alberta Citation: R. v. La, 2012 ABQB 192 Date: 20120323 Docket: 090203852Q1 Registry: Red Deer Between: Her Majesty the Queen Crown (Respondent) - and - Hoa Dong La Accused (Applicant) Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice M. David Gates _______________________________________________________ I.

Introduction.............................................................................................................. Page: 2 A. Positions of the Parties............................................................................. Page: 7 1. The Accused................................................................................... Page: 7 2. The Crown....................................................................................... Page: 8 B. Analysis....................................................................................................... Page: 8 1.

Subjective Expectation of Privacy................................................ Page: 9

2. Objective Expectation of Privacy.................................................. Page: 9 a. Relevant Legislation.......................................................... Page: 9 b. Legislation and the Expectation of Privacy................... Page: 11 c. R. v. Gomboc , Consideration of Non-Legislative Factors by Deschamps J............................................................................................ Page: 13 d. Conclusion - Charter , s. 8............................................... Page: 18 IV.

Charter , s. 24(2)................................................................................................... Page: 18 A. Seriousness of State Misconduct.......................................................... Page: 19 B. Impact upon Mr. La.................................................................................. Page: 20 C. Society’s Interest in Adjudication of Criminal Matters......................... Page: 21 D. Conclusion - Charter , s. 24(2)................................................................ Page: 21 V.

Conclusion............................................................................................................ Page: 22 I. Introduction [ 1 ] This is an application brought by the Accused, Hoa Dong La, (“the Accused”), pursuant to s. 8 of the Canadian Charter of Rights and Freedoms , alleging that his right to be secure from unreasonable search and seizure was violated when the police received various banking documents from the Bank of Montreal (“BMO”) and the Alberta Treasury Branch (“ATB”).

These banking documents related to mortgage applications submitted by the Accused, to BMO and ATB respectively, to finance four different properties purchased by the Accused in 2005 and 2006 in and around Bowden and Innisfail, Alberta.

The Accused says that the receipt of this information by the police constituted a warrantless search; that the search was unreasonable; and that the results of those searches should be excluded from evidence pursuant to s. 24(2) of the Charter . [ 2 ] The Crown’s position is that all of the documents were voluntarily turned over to the police by BMO and ATB, and that the documents in question were the property of the surrendering financial institution.

In addition, the Crown says that the BMO and ATB were, in fact, the victims of a crime perpetrated on them by the Accused and that any obligation they may have had to treat the Accused’s banking records as confidential was vitiated when the Accused provided false information to them.

The Crown says that the Accused in such circumstances had no reasonable expectation of privacy in the financial records maintained by these financial institutions and, as such, that there was no “search” within the meaning of s. 8 of the Charter . [ 3 ] After hearing evidence and argument, I dismissed the application on January 20, 2012, indicated that I was not satisfied that there had been a breach of the Accused’s rights under s. 8 . I further found that even if there had been a breach of s. 8 , I would still admit the evidence pursuant to s. 24(2) of the Charter .

In dismissing the application, I indicated that written reasons would follow in due course. [ 4 ] The RCMP sent “comfort” letters to both ATB and CIBC after their initial contact with representatives of these financial institutions. These letters (marked as Exhibits V- and V- during the voir dire ) outline the results of the RCMP investigation to date and invited the recipient financial institution to review its files to determine if fraud had, in fact, been perpetuated. [ 5 ] The Accused is charged with a number of counts of criminal harassment ( Criminal Code , R.S.C. 1985, c.

C-46, s. 264), extortion ( Criminal Code , s. 346), and fraud ( Criminal Code , s. 380(1)(a)) that relate to rental properties in the area of Innisfail and Red

Deer, Alberta, their tenants, and allegedly fraudulent mortgage arrangements with a number of financial institutions. [6] Count 1 : Between the 27 th day of December 2003, and the 31 st day of May 2004, both dates inclusive, at or near Innisfail, Alberta, knowing Ginia Demyen is harassed or being reckless as to whether Ginia Demyen is harassed did, without lawful authority, engage in prohibited conduct referred to in Section 264(2) of the Criminal Code of Canada thereby causing Ginia Demyen to reasonably, in all circumstances, fear for her safety or fear for the safety of Jason Bell, a person known to Ginia Demyen, contrary to Section 264(1) of the Criminal Code of Canada.

Count 2 : Between the 27 th day of December 2003, and the 31 st day of May 2004, both dates inclusive, at or near Innisfail, Alberta, knowing Jason Bell is harassed or being reckless as to whether Jason Bell is harassed did, without lawful authority, engage in prohibited conduct referred to in Section 264(2) of the Criminal Code of Canada thereby causing Jason Bell to reasonably, in all circumstances, fear for his safety, contrary to Section 264(1) of the Criminal Code of Canada.

Count 3 : Between the 1 st day of July 2005, and the 30 th day of November 2006, both dates inclusive, at or near Innisfail, Alberta, knowing Jennifer Henschel is harassed or being reckless as to whether Jennifer Henschel is harassed, did without lawful authority, engage in prohibited conduct referred to in Section 264(2) of the Criminal Code of Canada thereby causing Jennifer Henschel to reasonably, in all circumstances, fear for her safety or fear for the safety of Edward Henschel, a person known to Jennifer Henschel, contrary to Section 264(1) of the Criminal Code of Canada.

Count 4 : Between the 27 th day of December 2003, and the 20 th day of May 2004, both dates inclusive, at or near Innisfail, Alberta without reasonable justification or excuse and with intent to obtain the departure of his tenants, Ginia Demyen and Jason Bell, from their residence on his property described as SW 1/4 [...] in Alberta, by threats, accusations or menaces attempted to induce Ginia Demyen or Jason Bell to vacate their residential premises, contrary to Section 346(1) of the Criminal Code of Canada .

Count 5 : Between the 1 st day of October 2005, and the 30 th day of November 2006, both dates inclusive, at or near Innisfail, Alberta, without reasonable justification or excuse and with intent to obtain money, by threats, accusations, or menances (sic) attempted to induce or did induce Jennifer Henschel or Edward Henschel to pay money, contrary to Section 346(1) of the Criminal Code of Canada .

Count 6 : Between the 11 th day of May 2005, and the 28 th day of June 2005, both dates inclusive, at or near Airdrie, Alberta by deceit, falsehood or other fraudulent means, defraud Alberta Treasury Branches of money of a value exceeding $5,000.00 by providing false information to Alberta Treasury Branches in support of a mortgage application in the names of Hoa La and Elisha La, for Unit 106, [...]- 48 Street, Innisfail, Alberta, contrary to Section 380(1) (

a) of the Criminal Code of Canada . Count 7 : Between the 11 th day of May 2005, and the 28 th day of June 2005, both dates inclusive, at or near Airdrie, Alberta by deceit, falsehood or other fraudulent means, defraud Canada Mortgage and Housing Corporation, of money of a value exceeding $5,000.00, by providing false information to Alberta Treasury Branches in support of a mortgage application in the names of Hoa La and Elisha La for Unit 106, [...]-48 Street, Innisfail, Alberta, contrary to Section 380(1) (

a) of the Criminal Code of Canada . Count 8 : Between the 11 th day of October 2005, and the 24 th day of November 2005, both dates inclusive, at or near Airdrie, Alberta by deceit, falsehood or other fraudulent means, defraud Alberta Treasury Branches of money of a value exceeding $5,000, by providing false information to Alberta Treasury Branches in support of a mortgage application in the name of Hoa La for [...]-56 Avenue, Innisfail, Alberta, contrary to Section 380(1) (

a) of the Criminal Code of Canada . Count 9 : Between the 11 th day of October 2005, and the 24 th day of November 2005, both dates inclusive, at or near Airdrie, Alberta by deceit, falsehood or other fraudulent means, defraud Canada Mortgage and Housing Corporation of money of a value exceeding $5,000.00 by providing false information to Alberta Treasury Branches in support of a mortgage application in the name of Hoa La for [...]-56 Avenue, Innisfail, Alberta contrary to Section 380(1) (

a) of the Criminal Code of Canada . Count 10 : Between the 25 th day of November 2005, and the 9 th day of January, 2006, both dates inclusive, at or near Red Deer, Alberta by deceit, falsehood or other fraudulent means, defraud Bank of Montreal of money of a value exceeding $5,000.00, by providing false

information to the Bank of Montreal in support of a mortgage application in the name of Hoa La for Unit 208, 4532-47 Street, Innisfail, Alberta contrary to Section 380(1) (

a) of the Criminal Code of Canada . Count 11 : Between the 25 th day of November 2005, and the 9 th day of January, 2006, both dates inclusive, at or near Red Deer, Alberta by deceit, falsehood or other fraudulent means, defraud Canada Mortgage and Housing Corporation of money of a value exceeding $5,000.00, by providing false information to the Bank of Montreal in support of a mortgage application in the name of Hoa La, for Unit 208, 4532-47 Street, Innisfail, Alberta contrary to Section 380(1) (

a) of the Criminal Code of Canada . Count 12 : Between the 1 st day of June 2006, and the 31 st day of August, 2006, both dates inclusive, at or near Camrose, Alberta, by deceit, falsehood or other fraudulent means, defraud the Bank of Montreal of money of a value exceeding $5,000.00, by providing false information to the Bank of Montreal in support of a mortgage application in the name of Dinh La, for 1925-9 Avenue, Bowden, Alberta which property bears the legal description of SW 15-34-27-4, contrary to Section 380(1) (

a) of the Criminal Code of Canada . Count 13 : Between the 1 st day of June 2006, and the 31 st day of August, 2006, both dates inclusive, at or near Camrose, Alberta, by deceit, falsehood or other fraudulent means, defraud Genworth Financial Canada of money of a value exceeding $5,000.00, by providing false information to the Bank of Montreal in support of a mortgage application in the name of Dinh La for 1925-9 Avenue, Bowden, Alberta which property bears the legal description of SW 15-34-27-4, contrary to Section 380(1) (

a) of the Criminal Code of Canada . Count 14 : Between the 25 th day of May 2006, and the 19 th day of June 2006, both dates inclusive, at or near Airdrie, Alberta, by deceit, falsehood or other fraudulent means, defraud Alberta Treasury Branches of money of a value exceeding $5,000.00 by providing false information to Alberta Treasury Branches in support of a mortgage application in the name of Hoa La for [...]-56 Avenue, Innisfail, Alberta, contrary to Section 380(1) (

a) of the Criminal Code of Canada . Count 15 : Between the 25 th day of May 2006, and the 19 th day of June 2006, both dates inclusive, at or near Airdrie, Alberta, by deceit, falsehood or other fraudulent means, defraud Canada Mortgage and Housing Corporation of money of a value exceeding $5,000.00 by providing false information to Alberta Treasury Branches, in support of a mortgage application in the name of Hoa La for [...]-56 Avenue, Innisfail, Alberta contrary to Section 380(1) (

a) of the Criminal Code of Canada . [7] During their investigations, the RCMP Calgary Commercial Crime

Section requested information from a number of financial institutions in relations to the Accused’s financial transactions with those institutions. These requests took the form of what are commonly called “comfort letters.” These comfort letters are not a court approved and ordered requirement to disclose records and information.

Instead, each comfort letter: 1. states the alleged wrongdoing by the Accused; 2. summarizes evidence obtained from records and witnesses that supports the alleged wrongdoing; 3. requests that the financial institution examine its records to determine whether that institution has been the target of a mortgage fraud scheme; and 4. that in the event the financial institution does identify fraud then the financial institution: a. contact the RCMP with that finding, b. provide the RCMP with the original or a certified copy of the relevant records, and

c. identify a person who may act as a witness in relation to the fraud. [8] The comfort letters sent by the RCMP resulted in several financial institutions providing information that relates to the alleged misconduct by the Accused. [9] The Accused now advances an application pursuant to the Canadian Charter of Rights and Freedoms , that the comfort letters breached his s. 8 right to be secure against unreasonable search and seizure, and that breach cannot be justified by Charter , s. 24(2) .

The Crown argues that no Charter s. 8 breach occurred, and that in any event had such a breach occurred, then the evidence obtained via that breach should not be excluded, as exclusion of that evidence would bring the administration of justice into disrepute. II The Comfort Letters and RCMP Investigation [10] Two financial institutions provided information on mortgages with the Accused in response to the comfort letters: ATB Financial [“ATB”], and the Bank of Montreal Financial Group [“BMO”] [together “the financial institutions”].

The comfort letters were entered into evidence as exhibits on the voir dire held to consider the Charte r application. [11] RCMP Sgt. Joseph Sylvian Roussel testified as to how the RCMP became aware of the possible criminal misconduct by the Accused, the investigations by the RCMP into the Accused’s activities, and the RCMP’s methods to obtain various mortgage and financial records. [12] Sgt. Roussel testified that some documents that related to the mortgages were provided by witnesses, including the complainants.

He testified that RCMP investigators approached the lenders identified via Land Titles records, generally first by telephone, and then with comfort letters. ATB and BMO voluntarily provided documentary evidence to the RCMP in response to these requests. Two other lenders, Community Savings and MCAP, also received letters but did not voluntarily provide documentary financial information. [13] Sgt. Roussel indicated that at the time the RCMP investigators sent the comfort letters he believed there were reasonable and probable grounds to believe that the Accused had engaged in fraud.

He explained he was aware of the various Criminal Code provisions that relate to police obtaining documentary evidence (notably Criminal Code , ss. 487.012 and 487.014 ) and that he believed his activities complied with all relevant Charter and Criminal Code obligations. [14] Sgt. Roussel was a careful and credible witness. He was not seriously challenged on cross-examination. I accept his testimony without reservation. II. Charter , s. 8 [15] The Accused alleges his Charter , s. 8 rights were breached. That provision states: Everyone has the right to be secure against unreasonable search or seizure. A.

Positions of the Parties 1. The Accused

[16] Counsel for the Accused argue that his s. 8 right to be secure against unreasonable search and seizure was breached by themanner in which the RCMP obtained financial records from the ATB and BMO. Privacy extends to private information: R. v. Tessling,2004 SCC 67 at para. 20, [2004] 3 S.C.R. 432. The Accused characterizes the information sought as highly confidential, and includes the“biographical core of personal information” of the Accused which “reveals intimate details of the lifestyle and personal choices”: R. v.Plant, (SCC), [1993] 3 S.C.R. 281 at 293, 157 N.R. 321. [17] In R. v.

Tessling, Binnie J. (at para. 19) confirms the R. v.

Edwards, (SCC), [1996] 1 S.C.R. 128, 132D.L.R. (4th) 31 approach: ... referring to the need to consider "the totality of the circumstances", laid particular emphasis on (1) the existence of a subjectiveexpectation of privacy; and (2) the objective reasonableness of the expectation. [18] The Accused stresses that he had an objectively reasonable basis to expect that his financial information would be kept privateas there is, at a minimum, an implied term that the financial institutions with whom he dealt would not disclose that information: R. v.Jarvis (1997), (AB CJ), 204 A.R. 123, 51 Alta. L.R. (3d) 283 (Alta.

Prov. Ct.), affirmed (ABKB), 225 A.R. 225, 63 Alta. L.R. (3d) 236 (Alta. Q.B.), affirmed, 2000 ABCA 304, 193 D.L.R. (4th) 656, affirmed R. v. Jarvis, 2002SCC 73, [2002] 3 S.C.R. 757. He stresses the information was kept in a secure system, and involves intimate details of his lifestyle. [19] Further, the Accused argues that the comfort letters are more than a mere request, but instead are a form of persuasion thatinvolve highly prejudicial allegations. The RCMP effectively recruited the financial institutions as its agents.

He contends that therecords ought to only be available to the RCMP with a Criminal Code, s. 487.012 disclosure order. He acknowledges that the financialinstitutions could freely have disclosed the information if they had discovered, however, the evidence of alleged fraud independently viatheir own activities. 2. The Crown [20] The Crown acknowledges that if the Accused did, indeed, have a reasonable objective expectation of privacy, then disclosureof the mortgage documents by the financial institutions represents a breach of his s. 8 Charter rights.

That said, the Crown argues theAccused had no objectively reasonable expectation of privacy in this case. [21] First, the mortgage information does not involve information that relates to intimate details of personal choice and lifestyle. Atbest, it includes identification evidence and some information on economic activity, a situation analogous to that discussed by theOntario Court of Appeal in R. v. D'Amour (2002), (ON CA), 163 O.A.C. 164, 4 C.R. (6th) 275. [22] Second, the Crown notes that much of the documentation does not even involve Mr.

La, and instead much of the disclosedmaterial were documents exchanged between different financial institutions. While the Accused relies heavily on the analysis in R. v.Jarvis, the Crown notes that the mortgage information is very different from the broad scope of financial information disclosed in thatinstance. [23] The Crown suggests many of the cases identified by the Accused that criticize state actors who acquire evidence from thirdparties, as agents, should not apply in this case. First, the financial institutions were victims of fraud. The Crown notes the English caseof Tournier v.

National Provincial and Union Bank of England [1924] 1 K.B. 461, which at 473 explicitly indicates a bank maydisclose information when that is in the public interest or to protect the bank itself. Several Canadian cases illustrate one effect ofcriminal misconduct is to decrease an expectation of privacy, particularly R. v. Stymiest, 2006 NBQB 160 , 2006 NBBR 160,304 N.B.R. (2d) 200 and R. v. D'Amour. B. Analysis [24] The parties did not disagree on the general principles that govern s. 8 of the Charter.

Jurisprudence in relation to this Charterright is well developed, and has been the subject of extensive and detailed Supreme Court of Canada commentary in many differentcontexts.

[25] A reasonable expectation of privacy is a key concept in s. 8 Charter jurisprudence. A search that is directed at a target forwhich a person has no expectation of privacy can never offend the Charter prohibition against unreasonable search and seizure: Hunterv. Southam Inc., (SCC), [1984] 2 S.C.R. 145 at 159-160, 11 DLR (4th) 641. [26] A reasonable expectation of privacy is evaluated on both a subjective and objective basis; a court asks “...whether the accusedhad a subjective expectation of privacy and whether that expectation of privacy was objectively reasonable.”: R. v.

Gomboc, 2010 SCC55 at para. 8, [2010] 3 S.C.R. 211; R. v. Tessling, 2004 SCC 67 at para. 19, [2004] 3 S.C.R. 432. The “reasonable expectation of privacyis to be determined on the basis of the totality of the circumstances”: R. v. Edwards, at para. 45. 1. Subjective Expectation of Privacy [27] While the Accused did not testify that he expected his financial records would be kept confidential, there was no seriouschallenge by the Crown to that fact. I accept as a general inference that individuals neither expect nor desire that their financial records beavailable to the public. 2.

Objective Expectation of Privacy [28] The parties disagree as to whether the Accused objectively had a reasonable expectation of privacy in the mortgage recordsheld by the financial institutions. [29] There is no dispute that the RCMP did not seek a production order or search warrant for the financial records in question.Recently, in R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, Binnie J. at para. 21, restated the approach to a warrantless search: [21] ...

A warrantless search is presumptively unreasonable and contrary to s. 8 of the Charter, which guarantees to everyone “theright to be secure against unreasonable search or seizure”. In the absence of a warrant, the Crown must establish on a balance ofprobabilities that the search was authorized by law, that the law itself is reasonable, and that the manner in which the search was carriedout was reasonable ... [Emphasis added.] See also: R. v. Collins, (SCC), [1987] 1 S.C.R. 265 at 278, 38 D.L.R. (4th) 508; R. v. Caslake, (SCC),[1998] 1 S.C.R. 51 at para. 10, 155 D.L.R. (4th) 19. a.

Relevant Legislation [30] A search may be lawful where that search is authorized by statute. A search warrant is, itself, an example of a potentialintrusion into a person’s privacy that is authorized by legislation. Here, information was requested by the RCMP, and then providedvoluntarily by the financial institutions. [31] Criminal Code, s. 487.014(1) states no production order (Criminal Code, s. 478.012) is required where a peace officer asksfor documents which are then voluntarily provided: 487.014

(1) For greater certainty, no production order is necessary for a peace officer or public officer enforcing or administering this orany other Act of Parliament to ask a person to voluntarily provide to the officer documents, data or information that the person is notprohibited by law from disclosing.

Section 487.014(2) deems that whomever provides information pursuant to s. 487.014(1) was authorized and justified to do so, and does so reasonably. [32] Disclosure of personal information held by non-public bodies is governed in Alberta by the Personal Information Protection Act , S.A. 2003, c. P-6.5 [“ PIPA ”]. PIPA ’s effect is broad, and restricts disclosure of “personal information”, which “means information about an identifiable individual” ( PIPA , s. 1(1)(k)).

Other than restricted exceptions, PIPA “... applies to every organization and in respect of all personal information.”: PIPA , s. 4(1). [33] Private information may be lawfully disclosed where that information is relevant to an “investigation” or “legal proceeding”: 20 An organization may disclose personal information about an individual without the consent of the individual but only if one or more of the following are applicable: (

f) the disclosure of the information is to a public body or a law enforcement agency in Canada to assist in an investigation (

i) undertaken with a view to a law enforcement proceeding, or (ii) from which a law enforcement proceeding is likely to result; ... (

m) the disclosure of the information is reasonable for the purposes of an investigation or a legal proceeding; [34] An “investigation” includes a reasonable investigation into a breach of law, where the breach of law “may have occurred”: 1(1)(f) “investigation” means an investigation related to (

i) a breach of agreement, (ii) a contravention of an enactment of Alberta or Canada or of another province of Canada, or (iii) circumstances or conduct that may result in a remedy or relief being available at law, if the breach , contravention, circumstances or conduct in question has or may have occurred or is likely to occur and it is reasonable to conduct an investigation ; [Emphasis added.] [35] The Accused has not challenged the constitutional validity of either Criminal Code , s. 487.014, or PIPA , s. 20. b.

Legislation and the Expectation of Privacy [36] A person has a restricted objective expectation of privacy when legislation authorizes a state actor’s intrusion into that person’s privacy. The recent Supreme Court of Canada decision of R. v. Nolet illustrates this fact. In that case police stopped a truck

during a ‘spot check’ and detected registration and regulatory defects and anomalies that ultimately led to the discovery of a secret compartment which contained marijuana. Though the police never obtained a search warrant, their searches never represented an unreasonable search or seizure because at each step their search activities were authorized by legislation: at paras. 26-27, 29, 41. [37] There are other instances where the Supreme Court has examined how authorization by legislation affects a reasonable expectation of privacy. In R. v.

Gomboc , 2010 SCC 55 , [2010] 3 S.C.R. 211 the Court considered whether a kind of monitoring device that tracks the electricity used by a residence is an “unreasonable search” that offends s. 8 of the Charter . In that instance the electricity distributor was authorized by regulation to provide to the police information on consumer electricity consumption. [38] The Court issued two concurring decisions that held the monitoring was not unconstitutional. The alternative concurring approaches taken in R. v.

Gomboc do not appear to have yet been the subject of commentary by the Alberta Court of Appeal. [39] The two concurring decisions followed related but somewhat distinct approaches. Abella J. (Binnie and LeBel JJ. concurring) concluded that the monitoring was reasonable simply on the basis of the legislative scheme: [91] Absent a direct Charter challenge, we must presume the [regulation authorizing electricity consumption disclosure] to be constitutional . And absent any ambiguity, we must treat its clear meaning as binding.

According to the [regulation authorizing electricity consumption disclosure], the relationship between the customer and the company is such that the company is legally authorized to collect and disclose customer information to the police unless the customer expressly requests its non-disclosure . Mr. Gomboc made no request to the utility company to protect the confidentiality of his customer information. He therefore did not revoke the legislative authority that allowed [the utility] to hand over his information to the police . ... [94] ...

The contractual terms the statutory scheme creates are not only clear and unambiguous; they are also clearly relevant to an objective assessment of the reasonableness of any expectations of privacy Mr. Gomboc may have had in the [electricity consumption] information, regardless of whether he decided to inform himself of the legal parameters of his relationship with his utility provider. [95] ... the legislative authority provided by the [regulation authorizing electricity consumption disclosure] is in fact determinative and leads to the conclusion that any expectation of privacy that Mr.

Gomboc may have had was objectively unreasonable.

In the absence of a reasonable expectation of privacy, the collection of the [electricity consumption] information in this case did not constitute a “search” within the meaning of s. 8 . [Emphasis added.] [40] If the approach adopted by Justices Binnie, LeBel and Abella is applied to the present situation, then it would seem to follow that the Accused in this instance had no expectation of privacy to the financial records in dispute produced voluntarily by the financial institutions in response to a request by the RCMP ( Criminal Code s. 457.014) in the course of an investigation into the possibility of related criminal misconduct ( PIPA , s. 20).

Both the request and the provision of the documents were authorized by law. [41] The analysis of Deschamps J. (Charron, Rothstein and Cromwell JJ. concurring) also focuses on the regulatory and contractual right to disclose electricity consumption information, and concludes that the consumer had no expectation of privacy to this information.

However, she indicates at para. 2 that the expectation of privacy ought to depend on “the totality of the circumstances”, which includes “the nature and quality of the information” and “the biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state”.

That said, at para. 32 the group do not reject the approach taken by Justices Binnie, LeBel and Abella: Rather than concluding, as my colleague Abella J. does, that the legislative scheme is sufficient to erode the expectation of privacy in this case, I prefer to view it as one factor amongst many which must be weighed in assessing the totality of the circumstances. I do not need to pronounce on the issue of whether this legislative scheme alone is sufficient or not to dissolve any expectation of privacy . [Emphasis added.]

[42] In my view, the foregoing passage indicates that these four judges did not exclude the possibility that valid legislation may entirely negate a reasonable expectation of privacy. [43] At para. 31 Deschamps J. explicitly links the legislation which authorizes disclosure of electricity consumption to Criminal Code , s. 487.014: ... The [regulation authorizing electricity consumption disclosure] dovetails with s. 487.014 of the Criminal Code , which confirms that a peace officer may ask a person to voluntarily provide information that the person is not otherwise prohibited by law from disclosing.

Their combined effect establishes that not only was there no statutory barrier to [the utility’s] voluntary cooperation with the police request, but express notice that such cooperation might occur existed. [44] Here the relevant legislation, PIPA , s. 20 and Criminal Code , s. 487.014 do not merely dovetail, both are integral halves of a mechanism to transfer information in the context of a criminal investigation. A police officer may seek evidence from a third party who holds information that potentially relates to a criminal offence.

The third party does not have an unlimited authority to distributed confidential information, but may only lawfully provide that information where: 1. a breach of a legal prohibition may have occurred ( PIPA , ss. 1(1)(f), 20 (f)); 2. the investigation is reasonable ( PIPA , ss. 1(1)(f), 20 (f)), and 3. disclosure of the information is reasonable ( PIPA , s. 20(m)). [45] These criteria were met in this instance. The comfort letters provided detailed evidence that indicated the possibility of mortgage fraud.

Police officers are authorized by law to investigate misconduct that offends the provisions of the Criminal Code , such as mortgage fraud; the investigation here was not only reasonable but a part of their duties.

Disclosure of the mortgage information by the financial institutions was reasonable following their review of the mortgage documents which indicated that they appeared to have been the target of a criminal mortgage fraud scheme. [46] I therefore conclude on a balance of probabilities that the Accused had no objectively reasonable expectation of privacy in the ATB and BMO mortgage documents and related financial records. His s. 8 Charter rights were not, accordingly, breached in this instance. c. R. v.

Gomboc , Consideration of Non-Legislative Factors by Deschamps J. [47] If I am incorrect, and the Criminal Code and PIPA legislative provisions are not a sufficient basis to conclude that the Accused had no objective expectation of privacy in the mortgage documentation, I will evaluate the possible effect of other factors on a reasonable objective expectation of privacy in the mortgage documents. This alternative approach parallels the Justice Deschamps’ R. v. Gomboc decision. [48] Factors that are relevant to an objective expectation of privacy were reviewed by Binnie J. in R. v.

Patrick , 2009 SCC 17 at para. 27 , [2009] 1 S.C.R. 579 1. What was the nature or subject matter of the evidence gathered by the police? 2. Did the appellant have a direct interest in the contents?

... 4. If so, was the expectation objectively reasonable?

In this respect, regard must be had to: a. the place where the alleged "search" occurred; in particular, did the police trespass on the appellant's property and, if so, what is the impact of such a finding on the privacy analysis? b. whether the informational content of the subject matter was in public view; c. whether the informational content of the subject matter had been abandoned; d. whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality? e. whether the police technique was intrusive in relation to the privacy interest; f. whether the use of this evidence gathering technique was itself objectively unreasonable; g. whether the informational content exposed any intimate details of the appellant's lifestyle, or information of a biographic nature. [49] One factor is the nature of the information disclosed, specifically to what degree is it “... biographical core data, revealing intimate and private information for which individuals rightly expect constitutional privacy protection.” ( R. v.

Gomboc , at para. 34 ). The appropriate focus is not on what may be concealed but rather the information’s private character and the potential intrusion to the subject person ( R. v. Gomboc , at para. 39 ). [50] The Accused argues that the information in the mortgage documentation goes directly to the most personal aspects of a person’s activities. I disagree. It is helpful to contrast the mortgage records and their limited content with what is likely now the most private of domains, an individual’s personal computer. In R. v.

Morelli , 2010 SCC 8 at para. 105 , [2010] 1 S.C.R. 253, Fish J. stresses how a person’s private computer is effectively a gateway to a person’s most intimate interests, activities, thoughts, and beliefs: As I mentioned at the outset, it is difficult to imagine a more intrusive invasion of privacy than the search of one’s home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations.

They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet. [51] In contrast, the Supreme Court in R. v.

Jarvis , 2002 SCC 73 at para. 72 , [2002] 3 S.C.R. 757 concludes records of regulated activities, such as financial records, have a reduced private character: Generally, an individual has a diminished expectation of privacy in respect of records and documents that he or she produces during the ordinary course of regulated activities : see, e.g., Thomson Newspapers, supra, at p. 507, per La Forest J.; 143471 Canada, supra, at p. 378, per Cory J.; Comité paritaire, supra, at pp. 420-21; Fitzpatrick, supra, at para. 49.

In the particular context of the self-assessment and self-reporting income tax regime, a taxpayer's privacy interest in records that may be relevant to the filing of his or her tax return is relatively low: McKinlay Transport, supra, at pp. 649-50. [Emphasis added.] [52] Some of the information in the mortgage documents was public. The mortgages were registered in the Alberta Land Titles system.

[53] Further, the mortgage information did not ‘belong’ to the Accused alone. That information was acquired in relation to a contractual relationship, and was therefore not exclusively his “property.” The ATB and BMO had their own interest in that information. Deschamps J. in Gomboc (at para. 41 ) identified a third party’s independent interest in the information that is the subject of a search as a factor that reduces a reasonable expectation of privacy. A final factor affecting the informational privacy analysis and diminishing Mr.

Gomboc’s expectation of privacy in the information disclosed by the [electricity consumption monitoring device] is the fact that his interest in the electricity use data was not exclusive . His electricity consumption history was not confidential or private information which he had entrusted to [the utility]. As the supplier of electricity, [the utility] had a legitimate interest of its own in the quantity of electricity its customers consumed .

Consequently, it is beyond dispute that [the utility] was within its rights to install [an electricity monitoring device] on a customer’s line on its own initiative to measure the electricity being consumed. That it was not a regular practice by [the utility] in no way diminished its freedom to install the [the electricity monitoring device ].

It is also beyond dispute that if [the utility] installed the [electricity monitoring device] on its own initiative and discovered the same suggestive pattern of electricity use, it could have turned this information over to police. [Emphasis added.] [54] The same is true for a financial institution. The present situation is clearly dependent on the context of the relationship between the Accused and the financial institutions.

The intrusion here is minimal and totally distinct from a hypothetical alternative where the institutions had, for example, after a police inquiry, unilaterally opened safety deposit boxes owned by the Accused and which had unknown content (see R. v. Huynh , 2012 ABCA 37 for a closely related scenario). The ATB and BMO did not intrude into Mr.

La’s objectively private domain when they reviewed information obtained in a contractual relationship. [55] I also agree with the Crown that the Accused had a reduced objective privacy interest in information that disclosed criminal misconduct where the financial institutions were themselves the victim. To accept the Accused’s argument leaves the financial institutions in a conundrum worthy of Catch-22. Once tipped off by a government official, a financial institution which has been the victim of fraud can do nothing, paralyzed by the private nature of the fraudulent customer’s personal information.

That bank can only sit, silent, and hope an external investigator persists with a search warrant or court order to disclose documents. The peculiar nature of this result is only reenforced by the Accused’s concession that the financial institutions would have acted lawfully if they independently discovered and then disclosed the alleged mortgage fraud. [56] This strange result is even more apparent when put in a context of legal confidence. Communications between lawyers and their clients are privileged, and lawyers are required to hold the information of their clients as strictly private.

Client information therefore has a very strong private character when evaluated in the context of a reasonable objective expectation of privacy. The Alberta Law Society Code of Conduct requires that a lawyer cannot assist a client to commit a crime or fraud (Rule R.11). Lawyers have an obligation to report misconduct, including their own (Rule R.4).

The proceeds of crime (Money Laundering) and Terrorist Financing Act., S.C. 2000, c. 17 , requires persons, including lawyers, to report suspected money laundering and terrorist activity funding ( s.7 ) and keep that report secret from their client (s. 8). [57] It is not uncommon for the Law Society of Alberta to provide bulletins that explain novel schemes which abuse aspects of the legal profession, such as use of trust accounts for fraudulent purposes or money laundering.

The logical end-point of the Accused’s argument is that a lawyer who receives such a bulletin and who now recognizes client misconduct may be unable to report that misconduct as the lawyer has been ‘recruited’ as an agent of a third party investigator. [58] The Accused also stresses that the comfort letters are fundamentally coercive, and ‘recruit’ the financial organizations to act as an ‘agent’ for the police.

This apprehension, that a legislative scheme may allow police to use non-government actors to defeat the restrictions on state search and seizure restrictions, is specifically addressed and rejected in R. v. Gomboc per Deschamps J. at para. 42: The Chief Justice and Fish J. take exception to what they variously describe as [the utility] being co-opted or conscripted by the police to engage in a search which the authorities could not have conducted independently.

They raise the spectre of letter carriers and delivery persons being asked to pry into private homes in the course of their ordinary duties . … The coercive undertones evoked by describing [the utility] as being co-opted or conscripted are entirely inapposite to the case at bar. As noted above, if the police had merely notified [the utility] of a potential electricity theft and the utility had proceeded on its own initiative to install [an electricity monitoring device] and turn over what it disclosed, no Charter violation would have arisen.

Only by misguidedly elevating form over substance would a contrary conclusion result solely because [the utility] installed the [electricity monitoring device] subsequent to a police request for cooperation. Indeed, as mentioned, it is clear from s. 487.014 of the Criminal Code that no prior judicial authorization is necessary to

cooperate with an investigation provided disclosure of the information requested is not otherwise prohibited by law. As the [regulation authorizing monitoring of electricity use] establishes no such prohibition, [the utility’s] role is of no import to the Charter analysis . [Emphasis added.] See also R. v. Siemens , 2011 SKPC 57 at para. 50 , 374 Sask.R. 193. [59] Similarly, the Accused characterizes the police’s investigative techniques as “... highly intrusive ...” and “... designed to encourage the financial institutions to breach their confidentiality obligations ...”. I disagree.

The comfort letters were not a request for all financial information that related to the Accused. Rather, the comfort letters identify and request specific data items that are relevant to the particular investigation in question, and only if the financial institution itself concludes that a fraud has occurred. The letters are therefore carefully structured to minimize police intrusion, and respect the financial institution’s own PIPA obligations. [60] As a somewhat ancillary point, the Accused’s argument largely revolves on the Supreme Court’s decision in R. v. Jarvis .

That case relates to the atypical scenario that occurs during an investigation into liability to pay income tax, where a taxpayer has a positive obligation to cooperate with and disclose private information. An investigation into tax records by the Canada Revenue Agency may, at some point, disclose evidence of criminal misconduct. The Supreme Court of Canada in R. v. Jarvis confirmed that this transition from ‘required cooperation’ to ‘criminal investigation’ triggered a s. 8 Charter right against unreasonable search and seizure (at paras. 84, 95- 98). [61] In R. v.

Nolet , Justice Binnie at para. 45 comments on the place of R. v. Jarvis in the general s. 8 Charter jurisprudence, and indicates the “shifting focus argument” of R. v. Jarvis is restricted to where an investigation shifts from “a civil dispute into penal remedies”. In R. v. Nolet , “the context was always penal”, and the same is true here. [62] I note the approach of the Saskatchewan Court of Appeal in two recent cases that examine the s. 8 character of a request from police to an internet service provider to link an Internet Protocol address to a customer. In R. v.

Spencer , 2011 SKCA 144 at paras. 41-42 , 377 Sask.R. 280, the court concludes that privacy legislation and a contractual term that information may be disclosed “militates very strongly against a finding that [the accused’s] privacy expectation was reasonable.” The court concluded that the kind of intrusion was minimal and that billing information associated with an Internet Protocol address does not relate to a person’s intimate and private core identity (para. 45). This result appears to follow the approach of Deschamps J. in R. v. Gomboc . [63] A second decision released the same day, R. v.

Trapp , 2011 SKCA 143 , 377 Sask.R. 246 has the same result. The majority concludes that information privacy legislation and the internet service contract reduce but do not negate an expectation of privacy: para. 58. However, the combination of the privacy legislation and Criminal Code , s. 487.014 made the search lawful: paras. 70-71. d. Conclusion - Charter , s. 8 [64] I therefore conclude the Accused’s mortgage information held by the ATB and BMO was not the subject of unreasonable search and seizure.

These materials had a limited associated privacy interest as they do not relate to the intimate and private core of Mr. La’s person. Some parts of the information were public, the remainder was in the control of a third party with a valid interest. The Accused had no objective expectation of privacy in those documents once the fraudulent nature of his activities were detected. The disputed mortgage documentation is therefore admissible in evidence. IV.

Charter , s. 24(2) [65] In the event I am incorrect, and the disclosure by the financial institutions of the Accused’s mortgage documentation indeed breached his s. 8 Charter rights, I proceed to evaluate whether those documents are still admissible on the basis of s. 24(2) of the Charter. 24.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied

any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [66] The Supreme Court has recently revised its approach to the application of s. 24(2): R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353. Binnie, J. in R. v. Nolet ( at para. 54 ) provides a helpful restatement of the factors and process outlined in R. v. Grant : ...the analysis should be reoriented towards: (

i) the seriousness of the Charter -infringing state conduct; (ii) the impact upon the Charter -protected interests of the accused; and (iii) society’s interest in having criminal matters adjudicated on their merits. The task for courts remains one of achieving a balance between individual and societal interests with a view to determining whether the administration of justice would be brought into disrepute by admission of the evidence. A. Seriousness of State Misconduct [67] R. v. Grant at paras. 72-75 explains how a court should evaluate the seriousness of the state’s Charter -infringing conduct.

Misconduct falls on a spectrum (para. 94): ... At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law.

At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. [68] The intent of police officers is very significant. “"Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.” (para. 75).

Negligent, willfully blind, or intentional police disregard for Charter values and principles favours exclusion of evidence (para. 75). [69] The Accused says the RCMP officers in this instance did not act in good faith, or alternatively were negligent or willfully blind. They recruited the financial institutions as agents, coerced disclosure of the Accused’s private information, and engaged in a pattern of abusive information acquisition. [70] I disagree. In my view, the RCMP investigators acted in good faith. If they did breach the Accused’s Charter protected s. 8 right, they did so unintentionally.

The investigators used a mechanism, the comfort letters, which is well established. I note the Accused has not provide any Canadian jurisprudence that has concluded the comfort letter mechanism is abusive, coercive, or unreasonable. [71] I therefore conclude that any RCMP intrusion into the Accused’s privacy was minimal. B. Impact upon Mr. La [72] The Accused says (Written arguments, at para. 44) the comfort letters and subsequent document disclosure:

... completely undermined the Accused’s right to control the dissemination of his personal information ... If Roussel’s assessment of the law was to be upheld, it would have the effect of allowing the RCMP to affect a search upon any financial institution by simply telling the institution that they had been the victims of an offense and directing them to provide the relevant documents. [73] In my view, this statement is both incorrect and exaggerated. The financial institutions have their own legal obligation to the Accused as a consequence of PIPA . Their lawful response is not automatic disclosure.

That is proven by the facts of this matter. RCMP Investigators sent comfort letters to four lenders, only two of which responded. [74] The appropriate test here is to identify how the Charter breach has compromised the Charter -protected interests of the accused: R. v. Grant , at para. 76.

Infringement of s. 8 requires investigation of the kind of information disclosed (para. 78): An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not. [75] The mortgage document information falls into a category identified in R. v. Grant as “non-bodily physical information”: paras. 112-115. “Privacy is the principal interest involved in such cases.” The Accused had a reduced expectation of privacy in the mortgage document information.

It was held by third parties who had a legitimate basis to examine and use that information: R. v. Gomboc , at para. 41 . The information relates to regulated activities which have a low associated expectation of privacy: R. v. Jarvis , at para. 72. Some of that information was already public. The information disclosed is distant from the personal private identity core described in R. v. Morelli , at para. 105 . [76] I therefore conclude that the impact of the Charter breach on the Accused is minimal. C.

Society’s Interest in Adjudication of Criminal Matters [77] The third element in the Grant analysis revolves on whether information that was acquired in breach of a person’s Charter rights ought to be admitted because the failure to admit that evidence would reduce confidence in the judicial system: paras. 79-84.

In a sense this factor responds to the public’s concern that criminal misconduct may escape sanction ‘on a technicality’. [78] Two factors dominate this analysis, is the information: 1. necessary to the prosecution, and 2. reliable. [79] On the latter point, Grant is clear. “Non-bodily physical information” is intrinsically reliable and “... this consideration tends to weigh in favour of admission.”: para. 115. The Accused acknowledges that fact. [80] I also conclude this evidence is important to the investigation and understanding of the Accused’s activities.

Fraud is often a puzzle, with different pieces that individually may appear innocent when viewed in isolation. Further, the fraudulent character of the mortgages directly relates to and explains why the Accused behaved as he did towards the complainants. This information is necessary and reliable, and together that favours its admission. D. Conclusion - Charter , s. 24(2)

[81] Balancing the three relevant factors, I am of the view that if the Accused’s Charter rights were infringed, the mortgage document information should nevertheless be admitted. The exclusion of that evidence would bring the administration of justice into disrepute. The RCMP officers acted honestly, following a well established police investigation protocol.

The Accused had limited interest in the information that was disclosed. [82] Further, the Accused’s alleged misconduct is serious, and the mortgage document information is potentially key to understand not only how he engaged in criminal misconduct, but also links with other documentary and witness evidence to provide a full understanding of his activities. V. Conclusion [83] The Charter application by the Accused is dismissed. The mortgage records provided by the ATB and BMO are admissible. Heard on the 16 th to 18 th day of January, 2012. Dated at the City of Red Deer, Alberta this 23 rd day of March, 2012. M.

David Gates J.C.Q.B.A. Appearances: Leah Boyd J. G. Pickard Special Prosecutions Branch for the Crown (Respondent) Ian D. McKay Heather D. Ferg Fagan & McKay for the Accused (Applicant)