R v Beairsto, 2016 ABQB 216

Court of Queen ’ s Bench of Alberta Citation: R v Beairsto, 2016 ABQB 216 Date: 20160415 Docket: 130702830Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent/Crown - and - David Joseph Beairsto Applicant/Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Gerald A. Verville _______________________________________________________ Introduction [ 1 ] The Applicant, David Joseph Beairsto, is charged with trafficking in cocaine on October 7, 2011, contrary to s. 5(1) of the Controlled Drugs and Substances Act , SC 1996, c 19 ( CDSA ). [ 2 ] Mr.

Beairsto is alleged to have shipped the cocaine through the mail from Vancouver, BC to a recipient in Edmonton, AB. [ 3 ] The investigation of Mr. Beairsto arose as a result of a separate investigation into Atall Rashid Ahmed conducted by Edmonton Police Service (EPS) members. Officers conducted a traffic stop of Ahmed, arrested him and seized a BlackBerry cellphone from the driver's side door of Ahmed's Acura. They subsequently communicated with Mr. Beairsto using the BlackBerry and a second cellphone. [ 4 ] Mr.

Beairsto applies to exclude evidence based on alleged breaches of ss. 7 and 8 of the Charter arising as a result of the police officers’ use of the cellphones. [ 5 ] Counsel agreed that the Crown would call all, or virtually all, of its evidence during the voir dire and that this evidence could be applied to the trial proper. Seven police officers or former police officers of the EPS and an employee of Canada Post testified during the voir dire . The police officers were all members of the Edmonton Drug and Gang Enforcement Unit at the material times in

question [ 6 ] This is the decision in the voir dire . Evidence [ 7 ] An Agreed Statement of Facts prepared pursuant to s. 655 of the Criminal Code , RSC 1985, c C-46, and signed by the Applicant, his counsel and counsel for the Director of Public Prosecutions was entered as an exhibit.

While important in the trial proper, most of the matters admitted in the Agreed Statement of Facts are not significant for the purposes of the decision in the voir dire . [ 8 ] On October 4, 2011, Detective Thomas Pennie and Sergeant Lance Parker learned from an officer at the EPS Scona station that two suspicious parcels, emanating a strong smell of marijuana, had been brought into that station by UPS staff.

The officers attended at the Scona station and determined that the smaller of the two parcels or boxes contained $40,000 in Canadian currency and was addressed to Joseph Beairsto #2405, 1205 West Hastings, Vancouver, British Columbia, V6E 4T7. The other box was found to contain 30 half pound bags of marijuana, and was destined for an address in North York, Ontario. The sender name for both packages was "RICO", with a phone number of 780-222-8944 and address 9615 104 Street, Edmonton, Alberta. [ 9 ] Further investigations led the officers to believe that "RICO" was Ahmed.

During surveillance, the police witnessed Ahmed carry a bag and place it into the trunk of an Acura, registered in his name. A traffic stop was conducted and Ahmed was arrested for possession of a controlled substance for the purpose of trafficking. Twelve half pound packages of marijuana were located in the trunk of the Acura.

The arrest occurred around 11:15 p.m. on October 4, 2011. [ 10 ] Staff Sergeant Duane Hunter testified that after Ahmed's arrest, a search warrant was executed on his residence located at #101, 9615 104 Street, Edmonton, Alberta where a number of items supporting indicia of a drug operation were seized, including cocaine, cocaine conversion materials, marijuana, cash, a hand gun and ammunition. [ 11 ] Sergeant Scott Henning testified that a BlackBerry cell phone was seized from the driver's side door of Ahmed's Acura, and searched incident to Ahmed's arrest.

The BlackBerry did not require the insertion of a password in order to open it and view its contents, nor was it otherwise locked to prevent access by individuals other than Ahmed. The BlackBerry was open to a BlackBerry Messenger chat between the BlackBerry phone's user “Ricardo” and an individual named “Dobes Red Rum” (“Dobes”) The nature of the conversation was indicative of drug trafficking. [ 12 ] Sergeant Henning testified that he attempted to seize the text conversation from the BlackBerry for evidence in the Ahmed investigation.

He stated that in his view there was some urgency in extracting the conversation as quickly as possible, as it was his understanding that the data on the Blackberry might potentially be wiped clean from a remote source. [ 13 ] Sergeant Henning stated that he initially tried the commonly used “Cellebrite” application to download the subject text messages, but was unsuccessful. The Cellebrite application was successful in extracting other information from the Blackberry.

That extraction started at 3:02 a.m. and ended at 3:03 a.m. on October 5, 2011. [ 14 ] Sergeant Henning then attempted to copy the text conversation to a Word document and email it to himself, but the seized BlackBerry did not have an email function. He then added the EPS issued BlackBerry PIN number of Staff Sergeant Hunter to the text conversation in an attempt to have the conversation retained on Hunter's phone.

This technique was also unsuccessful, as the conversation prior to Staff Sergeant Hunter being included did not show up on Hunter's phone. [ 15 ] Sergeant Henning stated that he then had a “eureka moment” and was able to capture the chat by taking the SD card out of Ahmed's Blackberry, inserting it into a card reader and downloading it on to his desktop.

A printed copy of this chat is included as part of exhibit V4. [ 16 ] Staff Sergeant Hunter testified that when he learned that there was a conversation on Ahmed's Blackberry indicating drug trafficking, he instructed Sergeant Henning to retain the conversation as evidence. He stated that he believed from the tracking number of the box containing $40,000 in Canadian currency addressed to Joseph Beairsto #2405, 1205 West Hastings, Vancouver, British Columbia, V6E 4T7 and the reference to the tracking number in the text chat, that "Dobes" was Mr. Beairsto.

He stated further that from his review of the prior text conversation and his knowledge of the Ahmed investigation, he believed that Mr. Beairsto supplied Ahmed with cocaine. [ 17 ] Staff Sergeant Hunter stated that as he had been up most of the night, he slept in at home until about 10:20 a.m. on October 5, 2011. He knew he had been added as a third party to the text chat while Sgt. Henning was initially attempting to download it, and discovered that "Dobes" had responded to him being added to the text conversation by sending a text message at about 7:00 a.m. asking "Who's.

That". [ 18 ] He stated that when "Dobes" engaged him in the text conversation, he saw an opportunity to introduce himself as someone involved in the drug trade and affiliated with Ahmed. He testified further that based on his experience as a drug investigator, he believed he needed to respond to "Dobes" in his undercover capacity in a timely fashion and maintain a consistent regular flow of conversation. [ 19 ] Staff Sergeant Hunter responded to "Dobes" using his own EPS BlackBerry and sent a text message at about 10:20 a.m. on October 5, 2011 from "Hunter" saying "I am a buddy of Ricardo".

The following text messages which also form part of exhibit V 4 are then exchanged between "Dobes" and Hunter: "Dobes": Oh. Whats. Up bro (10:25 AM) Hunter: Not. Much wanted da recipe that's all (10:27 AM)

Hunter: Who are u? "Dobes": I'm. His. Pal. From Van. What recipe. Bro? (10:28 AM) Hunter: The. Coke and soda one ( 10:29 AM). [ 20 ] “Dobes” then left the conversation, which concerned Staff Sergeant Hunter as he thought “Dobes” was suspicious. After this text exchange, Staff Sergeant Hunter stated that he believed that “Dobes” would soon be attempting to contact Ahmed directly to confirm who “Hunter” was. He stated that he then contacted Inspector Peter Bruni-Bossio who located Ahmed's BlackBerry in EPS exhibits.

Inspector Bruni-Bossio confirmed “Dobes” had already sent a text message to Ahmed's BlackBerry asking “Who is Hunter?” Inspector Bruni-Bossio confirmed that he was contacted by Staff Sergeant Hunter at around 10:30 a.m. [ 21 ] Staff Sergeant Hunter stated that he then spoke with Inspector Peter McIsaac over the phone to discuss developments, including the need to provide “Dobes” with a timely reply. He stated that there was some urgency to proceed quickly given that they had caught a pending transaction in mid-course, since the police had already intercepted the $40,000 Ahmed had sent.

He stated that after the discussion, lnspector Mclsaac authorized him to engage “Dobes” in text message conversations on Ahmed's phone. [ 22 ] Inspector Bruni-Bossio testified that as Staff Sergeant Hunter was still at home, he sent a message to "Dobes" on Inspector McIsaac's instructions, using Ahmed's phone and pretending to be "Ricardo" (Ahmed). The purpose of this message was to vouch for Hunter and avoid any suspicion on the part of "Dobes".

The conversation between “Dobes” and Inspector Bruni-Bossio was documented by Inspector McIsaac, a superior officer. [ 23 ] Inspector McIsaac stated that he attempted to get some advice as to the propriety of Staff Sergeant Hunter using Ahmed's phone and impersonating Ahmed. He stated that he spoke with Superintendent Greg Preston, but that no conclusion was reached as to the propriety of an officer impersonating Ahmed. He stated that he also attempted to contact Crown prosecutor Greg Rice but was unsuccessful.

Inspector McIsaac then determined that they would proceed with the undercover operation. [ 24 ] Staff Sergeant Hunter stated that after Inspector Bruno-Bossio's text conversation, he continued as the exclusive undercover operator in this investigation, with Inspector Mclsaac acting as cover manager. The goal of the subsequent text conversations between Staff Sergeant Hunter in his undercover capacity pretending to be "Ricardo" (Ahmed) and "Dobes" (Mr. Beairsto), was to continue the investigation into the believed drug trafficking activities of Mr. Beairsto, and to have Mr.

Beairsto traffic cocaine to "Hunter" and achieve this through the text conversations. [ 25 ] Staff Sergeant Hunter confirmed that he was designated pursuant to s. 25.1(5) of the Criminal Code by the Honourable Fred Lindsay, Solicitor General and Minister of Public Security on May 22, 2009 as a public officer for the purposes of s. 25.1 to 25.4 of the Criminal Code , which designation expired on April 28, 2012. [ 26 ] The Staff Sergeant confirmed on cross examination that from reviewing the text chat it appeared that there was a relationship between Ahmed and Beairsto in that they had previously done drug related business.

He also confirmed that in most instances drug dealers, or at least the successful ones, try to keep their dealings private. [ 27 ] Staff Sergeant Hunter in his undercover capacity subsequently engaged in text message exchanges with "Dobes" as "Ricardo". Staff Sergeant Hunter continued to correspond with “Dobes” from October 5 to October 9, 2011 via messaging using Ahmed’s Blackberry and impersonating Ahmed. [ 28 ] On the afternoon of October 7, 2011, Staff Sergeant Hunter believed that "Dobes" (Mr.

Beairsto) confirmed in a text message that he had sent a kilogram of cocaine via Canada Post to be delivered to an address provided by Staff Sergeant Hunter in Edmonton, Alberta. [ 29 ] Staff Sergeant Hunter stated that Mr. Beairsto gave him a tracking number for the package. On October 11, 2011, Sergeant Parker seized a package from Canada Post in Edmonton, AB addressed to "Kyle Hunter" at the address provided by Staff Sergeant Hunter with the tracking number provided by “Dobes” (Mr. Beairsto) to "Ricardo" (Staff Sergeant Hunter).

The package contained a brick of cocaine weighing 998 g. [ 30 ] Staff Sergeant Hunter in his undercover capacity made arrangements in text message exchanges with "Dobes", to send "Dobes" $40,000 cash via UPS in payment for the kilogram of cocaine. On October 7, 2011, Constable Darren French (now retired), acting on Staff Sergeant Hunter's instructions, put together a weighted parcel (with no money), and shipped it to Joseph Beairsto at his Vancouver address.

On October 12, 2011, members of the Vancouver Police Department (VPD), acting in an undercover capacity, executed a controlled delivery of the UPS parcel sent by retired Constable French to Mr. Beairsto’s Vancouver address. Mr. Beairsto took delivery of the UPS package after producing a valid British Columbia driver's license with photo to confirm his identification as the addressee of the package. [ 31 ] Mr. Beairsto was arrested for drug trafficking by Detective Constable Mah of the VPD upon exiting apartment #2405 on October 13, 2011. Upon a search of Mr.

Beairsto incidental to his arrest, he was found to be in possession of three BlackBerry cell phones. One of these BlackBerry phones was confirmed to have the number 604-600-0957, which was the same phone number as the one to which Staff Sergeant Hunter was texting messages in his text exchanges with "Dobes" (Mr. Beairsto) to order the kilo of cocaine. Mr. Beairsto was also found in possession of the key to Apartment #2405. [ 32 ] Shortly after Mr.

Beairsto’s arrest on October 13, 2011, members of the VPD executed a search warrant on his residence where a number of items were seized, including: the UPS package sent by EPS; residency documents for Mr. Beairsto; 1.557 kg of cocaine; and $8,185 in Canadian currency. Issues

[33] The Applicant concedes that the initial search of Ahmed’s Blackberry met legitimate law enforcement objectives in terms ofobtaining evidence related to the arrest and suspected trafficking offences of Ahmed. In other words, it was a search incident to Ahmed’sarrest. [34] Therefore, the Court must determine the following issues: 1. Did Mr. Beairsto have a reasonable expectation of privacy with respect to the text messages he sent after Ahmed’s arrest? 2. Did the officers’ use of the phones to engage in the text exchanges with Mr. Beairsto, without obtaining a

Part VI Criminal Codewiretap authorization, amount to a breach of Mr. Beairsto’s ss. 7 and 8 Charter rights? 3. If a wiretap authorization was not required, did the police failure to obtain a general warrant constitute a breach of Mr. Beairsto’sss. 7 and 8 Charter rights? 4. Did the police failure to follow the requirements of s. 25.1 of the Criminal Code amount to police misconduct rendering theproceedings an abuse of process? 5. Should the impugned evidence be excluded on a section 24(2) analysis? Analysis 1. Did Mr.

Beairsto have a reasonable expectation of privacy with respect to thetext messages he sent after Ahmed’s arrest? [35] Mr. Beairsto submits that he has first party standing to challenge the interception of his private communications as the senderof text messages to Ahmed’s Blackberry, or alternatively third party standing. [36] Mr. Beairsto relies on R v Pelucco, 2015 BCCA 370, in which police seized a cell phone during an arrest and then pretendedto be the owner, arranging through text messages to meet Pelucco at a certain location. Pelucco did not testify on the voir dire.

Themajority stated that a sender of text messages has a reasonable expectation of privacy that those messages will remain private, eventhough the sender has little or no control over the messages once sent, citing in particular on R v Cole, 2012 SCC 53 (information onlaptop not owned by the accused) and R v Spencer, 2014 SCC 43 (identity of account holder associated with a certain IP address).Groberman J.A. for the majority in Pelucco ultimately reasoned that it would strain credulity to suggest that a reasonable person wouldhave engaged in such a conversation if they thought that the messages would be shared with others. [37] Mr.

Beairsto also relies on the recent decision in R v Craig, 2016 BCCA 154 in which Bennett J.A. for the Court held that anaccused had an interest in messages sent through Nexopia to an underaged female with whom he eventually had a brief sexualrelationship. It is interesting to note that the accused claimed a reasonable expectation of privacy in the messages he sent to thecomplainant, even though he had revealed through Nexopia to some of the complainant’s friends, after the fact, that he had had sexualintercourse with her.

In any event, Bennett J.A. rejected a “risk analysis” approach in determining whether the accused had a reasonableexpectation of privacy, focusing rather on the private nature of the substance of the communication. [38] The Crown submits that Mr. Beairsto had no reasonable expectation of privacy in the text messages located on Ahmed'sphone, applying the list of factors identified by Cory J. in R v Edwards, (SCC), [1996] 1 SCR 128, [1996] SCJ No 11: i. Mr.

Beairsto was not present when Ahmed's phone was searched; ii. he did not have possession or control over the text messages on Ahmed's phone; iii. he did not own Ahmed's phone, or Ahmed's copies of the text messages on Ahmed's phone; iv. there was no evidence that Mr. Beairsto had historical use of Ahmed's phone or control over text messages; v. there is no evidence that Mr. Beairsto had the ability to regulate access to Ahmed's phone; vi. there was no evidence that Mr.

Beairsto had a subjective expectation of privacy over text messages retained inAhmed's device; and vii. he could not reasonably expect to maintain any degree of privacy over the contents of Ahmed's phone, including Mr.Beairsto's text messages on that phone. [39] The Crown also applies the more general list of factors articulated in R v Tessling, 2004 SCC 67, Cole and Spencer: i. the subject matter in issue is Ahmed's copy of the texts;

ii. Mr. Beairsto's interest in those texts was significantly limited by his inability to control what Ahmed did with them; iii. there is no direct evidence of Mr. Beairsto 's subjective expectation of privacy in texts on Ahmed's phone; and iv. common sense suggests that even if Mr. Beairsto had such an expectation, it would not be objectively reasonable. [ 40 ] The Crown acknowledges that the Supreme Court in R v Telus Communications Co , 2013 SCC 16 recognized that text messages were "private communications" under the wiretap provisions in

Part VI of the Criminal Code . The Court in that case was divided on whether an order compelling the service provider to give the police copies of text messages stored by it as part of the communication process, on a prospective basis, constituted "interception" of private communications under

Part VI. Three justices found that prospective collection of text messages stored by the communications provider in the course of the communication process was an intercept, two found it unnecessary to resolve the point, preferring instead to characterize the technique in issue as a "substantive equivalent" of an intercept, and two dissenting justices found that even prospective collection of texts from the communications provider was not an intercept.

The Crown asserts that the issue in this case is whether the sender has an expectation of privacy in the record of the communication, over which the sender has no control once it reaches the recipient's device. The Supreme Court in Telus did not decide anything about the sender's expectation of privacy over the recipient's copy of text messages retained or stored on the recipient's device. [ 41 ] The Crown relies on the minority reasoning of Goepel J.A. in Pelucco , which was followed by Moreau J. in R v Stuart (10 March 2016), Edmonton 1309111779Q1 (QB).

Goepel J.A. stated the issue as being whether the sender of a text message has an ongoing privacy interest in that text message once the recipient of the message has received it, and concluded that Pelucco had no reasonable expectation of privacy due to his inability to ultimately regulate and control the dissemination of the content of the communication that he voluntarily sent, once it was received by the recipient. [ 42 ] The Crown also points to the unlawfulness of the initial search in Pelucco . In that case, the Court found that that the search and seizure of the cellphone was not authorized by law.

It further found that the police did not have the right to search Mr. Guray's vehicle or backpack, and that his arrest was also unlawful as it was based on evidence uncovered as a result of unlawful searches. In the result, there was no basis for the search and seizure of his cellphone. This was apparently relevant to the majority’s decision: 49 While we have also been referred to R v Thompson , 2013 ONSC 4624 , I note that that case did not involve an unlawful search. In my view that is an important distinction from the other cases.

A person cannot have a reasonable expectation that messages on another person's cellphone will remain private in the face of a lawful search of the device. [ 43 ] The Crown notes that there is conflicting case law out of the lower courts on whether the sender has an expectation of privacy in such situations.

Crown cites R v Pammett , 2014 ONSC 1213 , R v Noel , 2013 QCCQ 155544 and Stuart as authority for the proposition that there is no expectation of privacy in such situations, based on the Edwards factors. [ 44 ] In this case, it is my view that the various relevant factors set out in the cases on reasonable expectation of privacy weigh both for and against a finding of an expectation of privacy. [ 45 ] On the one hand, one can presume that a drug dealer would certainly hope that his text messages concerning drug dealings would be kept in confidence by the recipient. There is evidence that Mr.

Beairsto had at least some limited previous dealings with Ahmed. “Hunter” presented himself as a buddy of Ahmed and police vouched for Hunter using Ahmed’s phone. It was also argued that Blackberries had a reputation of being somewhat more secure as compared to other similar devices. [ 46 ] On the other hand, there was no evidence that Mr. Beairsto ever had any control over, or remote access to, the text messages he had sent and which were received on Ahmed's and Hunter’s cellphones. Mr.

Beairsto apparently resided in Vancouver, and there is no evidence that he had ever met Ahmed in person or had had an opportunity to observe him. There is no evidence that he had any knowledge of Ahmed’s habits, associates or environment. He chose to use a method of communicating over a considerable distance which created a written record. There was no evidence of assurances by Ahmed to Mr. Beairsto regarding the confidentiality and security of Mr. Beairsto’s text communications on either phone.

There is no evidence upon which he could conclude that Ahmed or Hunter was particularly careful with his cellphone or that others would not have access to Mr. Beairsto’s messages. Nothing about the manner in which their communications unfolded would have necessarily given him any assurances of privacy or confidentiality. Further, there is evidence that Mr. Beairsto and Ahmed had also communicated by voice over the phone. Nevertheless, Mr.

Beairsto chose to use a less secure means of communicating with Ahmed. [ 47 ] I am mindful that the majority in Pelucco held that lack of control once the message had been sent is a relevant factor in assessing objective reasonableness, but is not determinative. Craig is also authority for the proposition that the Court should not place undue emphasis on loss of control over the message once it is recorded on the device of the third party to which it is sent: 108 A risk that the second party in a conversation may divulge it to others is irrelevant to the central question of whether individuals in Mr.

Craig's circumstances have a reasonable expectation that the police cannot sift through their private communications without prior judicial authorization. … [ 48 ] In my view, the decisions on this issue must be carefully scrutinized as they are very fact driven. Although the Court in Craig focused on the nature of the substance of the communication, in my view that decision does not undermine the fact that factors outlined in all of the Supreme Court jurisprudence in this area include some consideration of risk.

This is relevant not only to the s. 24(2) analysis, but also to the existence of a Charter breach. [ 49 ] One must consider the objective reasonableness of the expectation having regard to the totality of the circumstances: Craig at para 90 . [ 50 ] In the instant case, it is acknowledged that the Blackberry was lawfully seized and searched incident to Ahmed's arrest. The existing chat between Ahmed and Mr. Beairsto was lawfully read by members of the EPS and downloaded. The police had already lawfully sifted through Ahmed’s existing messages. The issue is whether Mr.

Beairsto had a reasonable expectation of privacy in his

ongoing texts. [51] Having considered the law and the facts of this case, I conclude that there is no evidence that Mr. Beairsto had much, if any,personal knowledge of Ahmed’s circumstances or the security of the text messages on his cellphone. While it may be that in some casesthe nature of the relationship between associates in the drug trade may give rise to an inference of a reasonable expectation of privacy intext messages, I find that Mr. Beairsto did not have a reasonable expectation of privacy in his text messages in this case. 2. Did the officers’ use of the phones to engage in the text exchanges with Mr.Beairsto without obtaining a

Part VI Criminal Code wiretap authorization amount toa breach of Mr. Beairsto’s ss. 7 and 8 Charter rights? [52] If Mr. Beairsto did have some reasonable expectation of privacy in his text messages received on Mr. Ahmed’s phone, thenthe question arises as to whether the EPS’ receipt of ongoing text messages from Mr.

Beairsto constituted an “interception” of privatecommunications. [53] Staff Sergeant Hunter testified that while acting in an undercover capacity, he subsequently impersonated Ahmed while usingthe BlackBerry seized from Ahmed's vehicle and engaged in a number of text exchanges with "Dobes", whom he believed to be Mr.Beairsto.

While acting in this undercover capacity, Staff Sergeant Hunter arranged to have "Dobes" mail 1 kilogram of cocaine to him inEdmonton, AB via Canada Post. [54] The Applicant concedes that the initial search of Ahmed’s Blackberry met legitimate law enforcement objectives in obtainingevidence related to the arrest and suspected trafficking offences of Ahmed.

However, he submits that the ongoing use of the Blackberrywithout an authorization far exceeded a search incident to arrest, and the EPS in effect intercepted his private communications without aPart VI authorization under s. 186 of the Criminal Code, which unlawful act constituted a criminal offence under s. 184(1). [55] Mr. Beairsto argues that all of the evidence obtained from the ongoing search and use of Ahmed’s Blackberry should beexcluded from the ITO of the search warrant of Mr. Beairsto’s residence. [56] The Crown argues that the text exchange between the undercover officer and Mr.

Beairsto did not involve any "interception"of private communications, as an interception requires that there must be an interference between the place of origination and the place ofdestination of the communication. In a telephone conversation, there is no interception where the originator of the communication issimply mistaken as to the identity of the person to whom s/he was talking. Likewise, this applies to the originator in a text messagewhich is sent to an intended receiver, but is read by someone other than the intended receiver. Where a text message has been deliveredto the intended recipient,

Part VI does not apply. [57] The Crown argues that in the present case, the intended recipient of Mr. Beairsto’s text messages was the BlackBerry phoneseized from Ahmed. The messages were properly delivered to and stored on that device and were accessed on that device which waslawfully held by the police. It follows that the police in this investigation did not require a judicial authorization under

Part VI to accessthe text messages on Mr. Ahmed's BlackBerry. [58] The Code provides: 184

(1) Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a privatecommunication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. ... 184.2

(1) A person may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communicationwhere either the originator of the private communication or the person intended by the originator to receive it has consented to theinterception and an authorization has been obtained pursuant to subsection (3). [59] In my view, it is necessary to return to first principles in order to understand the reasoning behind the requirement for one-party consents in undercover situations and the interest it seeks to protect.

LaForest J. in R v Duarte, (SCC), [1990] 1SCR 30, [1990] SCJ No 2 held: 25 ...

If privacy may be defined as the right of the individual to determine for himself when, how, and to what extent he will releasepersonal information about himself, a reasonable expectation of privacy would seem to demand that an individual may proceed on theassumption that the state may only violate this right by recording private communications on a clandestine basis when it has establishedto the satisfaction of a detached judicial officer that an offence has been or is being committed and that interception of privatecommunications stands to afford evidence of the offence. 28 ... where persons have reasonable grounds to believe their communications are private communications in the sense defined above,the unauthorized surreptitious electronic recording of those communications cannot fail to be perceived as an intrusion on a reasonableexpectation of privacy. 30 I am unable to see any similarity between the risk that someone will listen to one's words with the intention of repeating them andthe risk involved when someone listens to them while simultaneously making a permanent electronic record of them.

These risks are of adifferent order of magnitude. The one risk may, in the context of law enforcement, be viewed as a reasonable invasion of privacy, theother unreasonable. They involve different risks to the individual and the body politic. In other words, the law recognizes that weinherently have to bear the risk of the "tattletale" but draws the line at concluding that we must also bear, as the price of choosing tospeak to another human being, the risk of having a permanent electronic recording made of our words.

37 ... the risk of being recorded is [not] simply a variant of the risk of having one's words disclosed by the person to whom we speak. Surreptitious electronic recording annihilates the very important right to determine to whom we speak, i.e., the right to choose the range of our auditors. [ 60 ] The concern as articulated in Duarte was the fact that where a speaker has a reasonable expectation of privacy in a conversation, s/he is entitled to some protection against that conversation being memorialized through a permanent electronic record. However, in this case, Mr.

Beairsto must be presumed to have known that his text messages could well remain on Ahmed’s phone indefinitely, or at least for some significant period of time. The police did not have to take any steps to use any electro-magnetic, acoustic, mechanical or other device of which Mr. Beairsto was not aware to record his messages; they automatically appeared in text form on the phones in question, an event about which Mr. Beairsto could express no surprise. Mr.

Beairsto’s misapprehension related only to the identity of the recipient, which is addressed under the third issue below. [ 61 ] In my view, the interest which a one-party consent authorization is intended to protect is the expectation that a recipient will not clandestinely make a record of the conversation. Mr. Beairsto knew that his text messages were recorded on the recipient’s cellphone. The police did not need to employ any surveillance equipment to record the message. In essence, it was Mr. Beairsto who created the record by sending the text message. I conclude that the police were not required to obtain a

Part VI authorization in the circumstances. 3. If a wiretap authorization was not required, did the police failure to obtain a general warrant constitute a breach of Mr. Beairsto's ss. 7 and 8 Charter rights? [ 62 ] Mr. Beairsto acknowledged that if a

Part VI authorization was not required, it is difficult to imagine what kind of warrant the police would obtain. However, he did argue in the alternative that the police required a warrant in order to be able to continue to use the phone, as they were engaging Mr. Beairsto in private communications. [ 63 ] The Supreme Court in R v Fearon , 2014 SCC 77 , defined the limits of a search incident to arrest of a cellphone. Ahmed would have standing to argue that police required a warrant to search his cellphone extending beyond a search incident to arrest. [ 64 ] However, Mr.

Beairsto was not the owner of the phone, nor is there any evidence that he was entitled to possess or control it. The police were in lawful possession of Ahmed’s phone. They chose to use it in an undercover operation to trick Mr. Beairsto in the course of their ongoing investigation of a drug deal in progress. Mr. Beairsto’s objection relates to the subsequent use of the phone by the police in the undercover operation. In the course of the undercover operation, Mr. Beairsto created evidence which could be used against him.

Again, his real complaint is that the trickery of the police was unfair. [ 65 ] In my view, Mr. Beairsto is right that the real issue is whether the text message was “intercepted”. Therefore, the conclusion on this point follows the result under the second issue. 4.

Did the police failure to follow the requirements of s. 25.1 of the Criminal Code amount to misconduct rendering the proceedings an abuse of process and contrary to ss. 7 and 8 of the Charter ? [ 66 ] Staff Sergeant Hunter was designated under s. 25.1(5) as a public officer for the purposes of s. 25.1 to 25.4 in a document dated May 22, 2009, with an expiry date of April 28, 2012. Defence counsel acknowledged that the wording of the designation is broad. There was evidence that Inspector Bruni-Bossio had a similar designation. [ 67 ] Mr.

Beairsto argues that Staff Sergeant Hunter had in mind only impersonation, and in this respect, he turned his mind to the wrong legal impediment. Inspector McIsaac sought guidance with respect to

Part VI, but was unable to obtain direction and the officers simply pressed on. Mr. Beairsto argues that a s. 25.1 designation cannot cover over the requirement for a

Part VI authorization. [ 68 ] The Crown submits that the officers were not guilty of any misconduct. Since there was no interception of private communications by police in this case, the police conduct was not unlawful and contrary to s. 184. The fact that the police did not obtain an authorization under

Part VI or have in mind the necessity for one in acting under the authority of s. 25.l, does not amount to conduct giving rise to an abuse of process as claimed by the Applicant. [ 69 ] The very nature of an undercover operation is to create trust with criminals, often through engaging in what would otherwise be criminal behaviour, in order to obtain information or evidence which would never be knowingly proffered to the police. [ 70 ] I find that the officers were properly designated under s. 25.1(5) to act in an undercover capacity in their communications with Mr. Beairsto. 5.

Would the impugned evidence be excluded on a s. 24(2) analysis? [ 71 ] I recognize that the law in this area is uncertain and in flux. If I am wrong in concluding that there has been no Charter breach or abuse of process, then s. 24(2) would be relevant. Although abuse of process would raise the possibility of a s. 24(1) remedy, defence counsel conceded that the s. 24(2) analysis drives the determination on exclusion of evidence in this case. [ 72 ] The Supreme Court set out the framework for the s. 24(2) analysis in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353.

The Court is required to consider : 1. the seriousness of the Charter -infringing state conduct,

2. the impact of the breach on the Charter -protected interests of the accused, and 3. society's interest in the adjudication of the case on its merits. a. Seriousness of the Charter -infringing state conduct [ 73 ] As conceded by defence counsel, there is no evidence that the officers in this case were not acting in good faith.

I find on the evidence that the officers’ failure to seek an authorization was not due to any attempt to bypass or overlook legal requirements. [ 74 ] The search incident to arrest was lawful, they attempted to obtain the advice of their superiors and the Crown with respect to impersonation to continue what appeared to be a drug deal in progress, and they had extant s. 25.1 designations. [ 75 ] I note that the state of the law on police actions in relation to text messaging and related topics was, and remains, unclear.

In particular, police in this case were acting without the benefit of significant subsequent cases including Fearon , Telus , Spencer , Cole , Pelucco and Craig . Crown points to cases such as R v Ramsum , 2003 ABQB 45 , and Alberta (Minister of Justice and Attorney General) v Petros , 2011 ABQB 541 as examples of earlier court findings that police use of a seized cellphone to impersonate an arrested person to set up drug transactions is simply a good police investigative tactic. [ 76 ] As noted above, Mr.

Beairsto was not under any misapprehension as to the record which was automatically created by his text messages. His misapprehension related solely to the identity of the recipient. That was the mischief which the police believed was addressed through the s. 25.1 designations. [ 77 ] I find that if there was a breach, the state conduct in this case was at the less serious end of the spectrum. b. Impact of the breach on the Charter -protected interests of the accused [ 78 ] Informational privacy rights are important Charter -protected interests. However, in my view if Mr.

Beairsto did have a reasonable expectation of privacy in this case, it was very low. [ 79 ] As I have found above, the subject matter of the communication would suggest he expected the messages to remain private. However, Mr. Beairsto apparently resided in Vancouver and there is no evidence he was ever present when Ahmed's phone was searched or used. He did not have ownership, possession or control over Ahmed's or Hunter’s phone or of the text messages on them. There is no evidence that he had the ability to regulate access to them remotely.

There is no evidence of a subjective expectation of privacy over text messages retained in either device. Nor is there evidence that he had any assurances from Ahmed or Hunter that the text messages would be kept in confidence. He had spoken with Ahmed by cellphone in the past, but chose to use a method of communication which created a record on the recipient’s cellphone. [ 80 ] Having considered all of the evidence, in my view, if Mr.

Beairsto had any expectation of privacy, nothing more than a very minimal expectation of privacy would be objectively reasonable in the circumstances. [ 81 ] As a result, I find that the impact of any breach of Mr. Beairsto’s Charter -protected interests was minimal. c. Society's interest in the adjudication of the case on its merits [ 82 ] There is no doubt that society has a significant interest in the adjudication of this case on its merits. Wholesale trafficking in a significant amount of cocaine is a very serious crime. The evidence which Mr.

Beairsto seeks to exclude is reliable and is critical to the Crown’s case. Its admission would not bring the administration of justice into disrepute. The police conduct in this case would not, in the long run, undermine the public’s confidence in the administration of justice. d. Conclusion on s. 24(2) [ 83 ] Having considered the three factors set out in Grant , I find that even if Mr. Beairsto had some expectation of privacy, and even if the police were required to obtain an authorization to receive the text messages that Mr. Beairsto sent to them, the evidence should not be excluded.

Conclusion [ 84 ] In the particular circumstances of this case, Mr. Beairsto did not have a reasonable expectation of privacy with respect to the text messages he sent after Ahmed's arrest. The officers' use of the phones to engage in the text exchanges with Mr. Beairsto, without obtaining a

Part VI authorization, did not amount to a breach of Mr. Beairsto's s. 7 or s. 8 rights. The failure to obtain a general warrant did not constitute a breach of Mr. Beairsto's s. 7 or s. 8 Charter rights. Both Staff Sergeant Hunter and Inspector Bruni-Bossio held s. 25.1 designations permitting them to conduct the undercover operation. [ 85 ] Even if I am wrong in finding no Charter breach or abuse of process, the evidence should not be excluded under s. 24(2). [ 86 ] The application is dismissed. Heard on the 11 th to the 15 th days of April, 2016.

Dated at the City of Edmonton, Alberta this 15 th day of April, 2016. Gerald A. Verville J.C.Q.B.A. Appearances: James F. Johnson Public Prosecution Service of Canada - Alberta Region for the Respondent/Crown Hovan Patey & Matthew Fingas Myers, Karp, Patey & Allingham for the Applicant/Accused