R v Wright, 2012 CM 3002

COURT MARTIAL Citation: R v Wright , 2012 CM 3002 Date: 20130122 Docket: 201252 Standing Court Martial Canadian Forces Base Greenwood Greenwood , Nova Scotia, Canada Between: Her Majesty the Queen, respondent - and - Captain J. T. Wright, applicant Before: Lieutenant-Colonel L.-V. d'Auteuil, M.J. REASONS FOR DECISION CONCERNING AN APPLICATION FOR EXCLUDING EVIDENCE PURSUANT TO PARAGRAPH 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOM FOR AN ALLEGED INFRINGEMENT OF APPLICANT'S RIGHT TO BE SECURE AGAINST UNREASONABLE SEARCH AND SEIZURE PURSUANT TO

SECTION 8 OF THE CHARTER (Orally) [ 1 ] Captain Wright is charged with two service offences under

section 130 of the National Defence Act for having obstructed justice contrary to subsection 139(2) of the Criminal Code , and alternatively with two service offences for

an act to the prejudice of good order and discipline for having submitted a false email as evidence in a

Summary Trial contrary to

section 129 of the National Defence Act . [ 2 ] At the opening of this trial by Standing Court Martial on 10 December 2012, prior to plea and after the oaths have been taken, Captain Wright made an application for which a notice was received by the Office of the Court Martial Administrator on 1 November 2012, seeking an order from the Court Martial under subsection 24(2) of the Canadian Charter of Rights and Freedoms (hereafter the Charter ) excluding certain evidence on the basis of an alleged infringement of the applicant's right to be secure against unreasonable search or seizure under

section 8 of the Charter . [ 3 ] The preliminary motion is brought by way of an application made under Queen's Regulations and Orders ( QR&

O) article 112.05(5)(

e) as a question of law or mixed law and fact to be determined by this court. [ 4 ] The evidence on the application consisted of: a. Exhibit VD1-1, the written notice of application dated 31 October 2012 and received at the Office of the Court Martial

Administrator on 1 November 2012; b. Exhibit VD1-2, the Record of Disciplinary Proceedings (RDP) concerning Captain Wright, signed by Warrant Officer Way and dated 22 November 2011; c. Exhibit VD1-3, note to file of Colonel Irvine concerning the

Summary Trial of Captain Wright; d. Exhibit VD1-4, information to obtain a production order signed by A. Ferris and dated 13 February 2012; e. Exhibit VD1-5, information to obtain a production order signed by A. Ferris and dated 14 February 2012; f. Exhibit VD1-6, a production order signed by Claudine MacDonald, a Justice in and for the province of Nova Scotia and dated 14 February 2012; g. Exhibit VD1-7, a dismissed production order signed by Claudine MacDonald, a Justice in and for the province of Nova Scotia and dated 13 February 2012; h. Exhibit VD1-8, an investigation report written by Warrant Officer Way and dated 8 November 2011; i. Exhibit VD1-9,

Chapter 6002-2 of the Defence Administrative Orders and Directives (DAOD) entitled "Acceptable Use of the Internet, Defence Intranet, Computers and Other Information Systems"; j. Exhibit VD1-10, an email from Captain Wright dated 27 October 2011; k. Exhibit VD1-11, a chain of email for which the last one is from Major Wosnitza and dated 17 October 2011; l. Exhibit VD1-12, a chain of email for which the last one is from Captain Wright and dated 17 October 2011; m. Exhibit VD1-13, a chain of email for which the last one is from Captain Wright and dated 28 October 2011; n.

Exhibit VD1-14, a chain of email for which the last one is from Major Wosnitza and dated 28 October 2011; o. Exhibit VD1-15, a chain of email for which the last one is from Major Wosnitza and dated 17 October 2011; and p. The Judicial Notice taken by the court of the facts and issues under Rule 15 of the Military Rules of Evidence, and more specifically, the content of

Chapter 6002-2 of the DAOD entitled "Acceptable Use of the Internet, Defence Intranet, Computers and Other Information Systems." [ 5 ] Further to a unit investigation report, dated 8 November 2011, and signed by Warrant Officer Way, the latter laid three charges on 22 November 2011 against Captain Wright. The two first charges were alternate charges and were for being absent without leave (AWOL) from his place of duty on 27 October 2011 contrary to

section 90 of the National Defence Act . The third charge was for conduct to the prejudice of good order and discipline contrary to

section 129 of the National Defence Act for failing to take some direction from the course director between 26 and 28 October 2011 as it was his duty to do so. It is important to say that these charges are not before this court.

[ 6 ] On 31 January 2012, a

Summary Trial was conducted by the Commanding Officer of Captain Wright's unit, Colonel Irvin, concerning those three charges. At the end of that trial, Captain Wright was found not guilty of all charges. A key element considered by the tribunal was two emails submitted by Captain Wright as the author, which indicated that he was at work while allegedly AWOL and that he was conducting military duties at home during the time frame period of 26 to 28 October 2011. [ 7 ] Further to that trial, the Commanding Officer tasked Warrant Officer Way on a unit investigation in order to investigate the veracity of the emails submitted as evidence by Captain Wright during his

Summary Trial. Warrant officer Way checked with recipients and some persons who were carbon copied and he found out that there was some discrepancies between emails submitted at the

Summary Trial and those received by the recipients. [ 8 ] Warrant Officer Way then decided to file a complaint to the military police against Captain Wright for submitting fabricated emails as evidence at a

Summary Trial. On 6 February 2012, he met with a Military Police member, Corporal Ferris, who was put on the file as the investigator for this matter. Warrant Officer Way explained to her the context and the result of his own informal investigation. [ 9 ] Further to that interview, Corporal Ferris decided to meet with Mr Engelberts, 14 Wing Information System Security Officer. He indicated to her that he could access Canadian Forces members Department National Defence (DND) email account and such account could be disabled with the agreement of the member's Commanding Officer.

Concerning the process about to legally seize the emails, he suggested to her to get legal advice from the Deputy Judge Advocate (DJA) on the base, which is the military lawyer acting as the legal adviser. Corporal Ferris met with the DJA and obtained legal advice. [ 10 ] Through that process, Captain Wright's email account was disabled on that same day. [ 11 ] On 13 February 2012, Corporal Ferris submitted information to obtain (ITO) a production order to a judge.

She expressed in that document that she had reasonable grounds to believe that on 27 October 2011, Captain Wright committed the offence of fabricating evidence contrary to

section 137 of the Criminal Code . She indicated that with intent to mislead, he fabricated emails with intent that it should be used as evidence in a concluded judicial proceeding. [ 12 ] On that same day, Judge MacDonald, returned the ITO with the following comment: "I am not prepared to grant this production order for the following reason: the offence is described as "fabricate e-mails with intent that they should be used as evidence on a concluded judicial proceeding…" (emphasis added) contrary to

section 137. The Criminal Code

section specifies "existing or proposed" not concluded." [ 13 ] On 14 February 2012, Corporal Ferris submitted an amended ITO to the same judge. She then indicated "existing judicial proceeding" instead of "concluded judicial proceeding" for the description of the offence. [ 14 ] She identified the following documents as something that would afford evidence of the commission of the offence she described: a. All outgoing emails addressed to Captain MacKinnon, on October 17 th , 2011, in relation to the Department of National Defence account, attached to Jonathon.Wright@forces.gc.ca; b.

All incoming and out going emails addressed to or from email address s22825@yahoo.ca on October 27th, 2011, in relation to the Department of National Defence email account, attached to Jonathon.Wright@forces.gc.ca; c. All outgoing emails addressed to Major Wosnitza on October 17th, 2011, in relation to the Department of National Defence account, attached to Jonathon.Wright@forces.gc.ca ;

d. All outgoing email on October 27th, 2011, in relation to the Department of National Defence email account, attached to Jonathon. Wright@forces.gc.ca ; e. All outgoing email addressed to Captain Dunwoody on October 17th, 2011, in relation to Department of National Defence email account, attached to Jonathon.Wright@forces.gc.ca ; and f.

All incoming and outgoing emails addressed to or from email address s687i@unb.ca , on October 27th, 2011, in relation to the Department of National Defence account, attached to Jonathon.Wright@forces.gc.ca. [ 15 ] Corporal Ferris indicated also in the ITO that they were reasonable grounds for believing that the said documents were in possession and control of Trevor Engelberts at 14 Wing Greenwood. [ 16 ] On that same day, Claudine MacDonald, a Judge of the Provincial Court of Nova Scotia, granted the production order concerning the documents above listed but for an offence that would have occurred on October 17 th , 2011 and not October 27 th , 2011 as indicated in the ITO submitted to the judge. [ 17 ] Mr Engelberts was served with the production order.

He took two to three days for searching through the email account, not on full-time. He said that he spent 10 to 12 hours total searching. [ 18 ] He took some initiative to make the search efficient. First, he could not use the SMTP account, which is Jonathon.Wright Capt@, and he used the user ID, which is Wright.JT. [ 19 ] He requested and obtained permission to access personal account of Captain Wright for the most recent emails, which are the emails of the last 30 days. Corporal Ferris was aware that he had to do so.

Then, he went through the email account manually, and based on date in the production order, he used the wording of the documents described in it as criteria and with the search function of the Microsoft Outlook program and he found two matching emails that were not deleted by the user. [ 20 ] While the server dealing with emails from personnel of 14 Wing is on CFB Greenwood, access to emails older than 30 days is controlled by Defense Email System (DEMS) organization in Ottawa.

Mr Engelberts requested then permission to DEMS to access older emails of Captain Wright, especially those for the period of October 2011 that were not kept by the user in his mailbox. [ 21 ] Mr Engelberts found four emails that matched the criteria he took. Those emails were part of a chain of email. [ 22 ] He produced the emails and the chain of email for each of those who were involved in such thing.

The end result of his research was produced to Corporal Ferris and is reflected in exhibits VD1-10 to VD1-15 in these proceedings. [ 23 ] Further to the completion of her investigation, charges were laid against Captain Wright and they were preferred by the prosecution in August 2012. [ 24 ] Through this application, Captain Wright asked this court to exclude, pursuant to paragraph 24(2) of the Charter , the emails and chain of emails as identified VD1-10 to VD1-15 and seized further to the execution of the production order dated 14 February 2012.

Essentially, he claimed that because the production order is invalid, then it constitutes a violation of his right to be secure against unreasonable search or seizure under

section 8 of the Charter . [ 25 ] In addition, he submitted to the court that the way the search and seizure of the emails were conducted constitute also an infringement of his right to be secure against unreasonable search or seizure under

section 8 of the Charter .

[ 26 ] The prosecution argued that the production order is legally valid and that if the court does not share its opinion, then the admission of the emails identified from VD1-10 to VD1-15 as evidence that it intents to rely on for its case, would not bring the administration into disrepute. [ 27 ] Paragraph 24(2) of the Charter reads as follows: 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. [ 28 ] Accordingly, the court must determine if the applicant established on a preponderance of probabilities that the evidence was obtained in a manner that infringed his right to be secure against unreasonable seizures as specified in

section 8 of the Charter . [ 29 ] Subsequently, if the court concludes that this is the case, it must determine if, having regard to all the circumstances, the admission of this evidence in the proceedings would bring the administration of justice into disrepute. [ 30 ] In order to answer the first question, then it would be appropriate at this stage to look back at the wording of

section 8 of the Charter , which it reads as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. [ 31 ] First, in the circumstances of this case, it clearly appears to me that the search conducted, which that led to the seizure of the emails, constitutes an intervention of the state allowing the application of the Charter . [ 32 ] About the expectation of privacy, both counsel submitted to the court that in light of the Supreme Court of Canada decision of R v Cole , 2012 SCC 53 , considering that personal used of DND computers and other information systems is permitted and reasonably expected, according to

Chapter 6002-2 of the DAOD entitled "Acceptable Use of the Internet, Defence Intranet, Computers and Other Information Systems," then even there is a diminished expectation of privacy for Canadian Forces members while using computers and the email system, it still nonetheless an expectation of privacy in the meaning of

section 8 of the Charter . [ 33 ] Then, the court is left with one element to determine concerning the first question, which is if the search and seizure was conducted in an abusive manner. [ 34 ] On that matter, the applicant raised two specific issues: a. First, the validity of the production order obtained on 14 February 2012; and b. Second, the way the search was conducted. [ 35 ] On the very first issue, Captain Wright is claiming that there is some defects in the ITO submitted that make the production order issued invalid. Mainly, he is highlighting that: a. The nature of the offence stated in the ITO cannot be supported by the facts enunciated;

b. The ITO did not clearly state who possessed and controlled the emails requested; c. The ITO did not establish where emails could be found and what was the period of retention, despite this information was known; and d. The date on the production order concerning the alleged offence is different than the one that appeared on the ITO; [ 36 ] It must be noted that when a court conducts a review of the issuance of a search warrant, it is conducting a judicial review of this decision. Consequently, there is no question here of proceeding de novo .

Instead, the question to be determined is whether, when the warrant was issued, the judicial authority had the necessary evidence to be satisfied that the prerequisite conditions existed. If the answer is that there was no such evidence, the court's intervention is warranted. [ 37 ] As stated by the Supreme court of Canada in R v Morelli , 2010 SCC 8 , at paragraph 40 : In reviewing the sufficiency of a warrant application, however, "the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued " ( R. v.

Araujo , 2000 SCC 65 , [2000] 2 S.C.R. 992 , at para. 54 (emphasis in original) ).

The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. [ 38 ] Concerning a production order, paragraph 487.012(3) of the Criminal Code can be read as follows: Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to believe that (

a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed; (

b) the documents or data will afford evidence respecting the commission of the offence; and (

c) the person who is subject to the order has possession or control of the documents or data. [ 39 ] The evidence submitted to the judge in the ITO dated 14 February 2012 was not sufficient to make her to find reasonable and probable grounds to believe that an offence has been committed. Reality is that in the ITO, it is written that Captain Wright fabricates emails on October 27th, 2011, with intent that it should be used as evidence in an existing judicial proceeding. However, the only judicial proceeding to which the ITO referred to, was the

Summary Trial held on 31 January 2012. But the ITO also disclosed the fact that on October 27 th , 2011, there were no existing judicial proceedings or any investigation going on concerning this matter on 27 October 2011. Then, it is my opinion that this judicial authorization could not have been issued by the judge. [ 40 ] My understanding of this offence is that it would find application when judicial proceedings are either in existence or proposed at the time that the fabrication occurs. With the facts and the circumstances described in the ITO, no such conclusion could be made. [ 41 ] There is more.

While it is indicated in the ITO dated 14 February 2012 that Mr Engelberts could access any Canadian Forces member's Department of National Defence account, and that he held such account, it is not indicated who possessed and controlled the information, i.e., the emails requested. [ 42 ] The testimony of Mr Engelberts clearly indicated to the court that while he had such access, he did not possess and control any

email account. Reality is that the server on which were kept emails was under the possession and control of a different entity and he hadto request permission in order to get access. He had to request permission twice because such access could be given only by those whopossess and control the email account on behalf of the Department of National Defense.

Permission was requested for emails that werecreated for less than 30 days, and another one was necessary for emails that were created for more than 30 days. [43] Then, it is my conclusion that the judge could not issue the production order because there was no reliable evidence thatmight reasonably be believed for supporting the fact that Mr Engelberts had possession or control of the data. [44] In addition to that, there was no indication where the data could be specifically found and what was its period of retention,despite this information was known by the police officer investigating the matter. [45] In this case, in compliance with the Supreme Court decision in R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421, Iauthorized the applicant to question Master Corporal Ferris on some specific issues raised by the applicant about the validity of thesearch warrant which I previously identified, such as this one. I also allowed the respondent to amplify on these aspects by also allowingthe respondent to examine the witness on these issues.

The testimony of Master Corporal Ferris revealed that she knew about the locationand the retention period concerning emails coming from Captain Wright's email account but she did not put this information in the ITOor tell the judge who issued the production order. [46] Finally, the date alleged of the commission of the offence in the ITO and the one in the production order is not the same.

Iauthorized the applicant to cross-examine Master Corporal Ferris on this very specific issue and the latter indicated that she did not noticethe discrepancy on this matter before being in court and that, as a matter of reality, she did not know when the alleged offence wascommitted. She admitted that it could have been any time after the 17th of October, 2011. [47] While the matter could appear as something very technical, it reveals a lot about the lack of certainty the investigator wasoperating with.

Considering the nature of a production order, rigour is essential in order for the judge considering the matter to be able torely on the information put to him or her.

In this case, such situation adds to the fact that reliability of evidence submitted to the judgecould be an issue. [48] Then it is my conclusion that there was no sufficient credible and reliable evidence to permit a judge to find reasonable andprobable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified place.The production order dated 14 February 2012 is invalid. [49] The applicant submitted as a second issue, that the way the search was conducted was abusive and could constitute aninfringement of his right under

section 8 of the Charter. [50] As explained by Mr Engelberts, the search conducted was wider than required by the production order. What he did wasmore than providing the documents listed in the production order. He searched in order to find any document in relation with thedocument requested. Then, concerning exhibits VD1-11 to VD1-15, he produced more documents then requested by the productionorder, which resulted in going beyond what was requested in the production order. [51] However, he decided to do that on his own. It was not suggested to him or he was not invited to do so.

He just wanted tomake sure to cover all perspective. He should have been explained that he had to provide only what was requested by the productionorder to minimize the impact on the applicant's right against unreasonable search and seizure.

Corporal Ferris did not explain anything tohim and she received the data without noticing that there was more than ordered in the production order. [52] Considering that a production order is a search warrant from a judicial authority to seize specific data in a specific location, byproviding more than requested by the production order, Mr Engelberts when beyond what he was told to do, and then made that seizureabusive. [53] It is my conclusion that the applicant established on a preponderance of probabilities that the evidence (Exhibits VD1-10 toVD1-15) was obtained in a manner that infringed his right to be secure against unreasonable seizures as specified in

section 8 of theCharter.

[ 54 ] Then, having regard to all the circumstances, would the admission of this evidence in the proceedings bring the administration of justice into disrepute? [ 55 ] In R v Grant , 2009 SCC 32 , the Supreme Court of Canada established a revised approach to paragraph 24(2) of the Charter .

At paragraph 71, the court said: A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2) , viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins , capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence. [ 56 ] This specific set of circumstances demonstrated that Master Corporal Ferris was not very familiar with the search warrant topic.

She sought legal advice on this matter but it was not very helpful. She presented to the judge facts that were not supporting the alleged offence and she did not provide to the judge the full and necessary disclosure that would allow this judicial authority to assess properly who was in possession and control of the data she was looking for.

Even though it appears clearly to me that she did not do that with any bad faith, her conduct was somewhat reprehensible because her lack of knowledge and care while doing such thing could not make her honestly and reasonably believed that she was respecting the applicant's right under

section 8 of the Charter . She could have done better in the circumstances, first by identifying the correct offence for justifying the presentation of the ITO, and also by making herself and the judge better understand who had possession and control of the data. [ 57 ] Also, I am of the opinion that this constitutional infringement is serious. Despite the fact that the context is about an offence in a work environment, an expectation of privacy still exist in the meaning of

section 8 of the Charter . Essentially, it belongs to the state to respect minimal requirements, such as identifying the right reason for looking for evidence, by providing full information of those who possess and control the information and by making sure that the seizure is conducted within the parameter imposed by the production order, such as just providing the data identified and not more than that.

Any Canadian citizen, including Canadian Forces members, expects that the state will respect those minimal requirements that are articulated in the Criminal Code . [ 58 ] I am of the opinion that the truth-seeking function of the court martial process would be better served by the exclusion of the evidence. The importance of this evidence is not very high. It is possible for the prosecution to establish its case by bringing to court those who attended the

Summary Trial and received the emails and those who were sending or receiving the emails. Essentially, the exclusion of the evidence seized does not preclude the prosecution to try to introduce it by witnesses who saw it at any other place. [ 59 ] In the context of trying to avoid condemnation by a

Summary Trial of being absent of work without leave, proving an offence such as obstructing justice with evidence obtained in a manner that infringed the right of the applicant to be secure against unreasonable seizures as specified in

section 8 of the Charter would impact on the long term perception of the public of the Military Justice system [ 60 ] In the context of this case, allowing a misleading justice offence being proved with evidence obtained through a deficient process, which did not respect the Charter 's right of the applicant could impact on the perception that the public would have of the Military Justice system. [ 61 ] This weighing process and the balancing of these concerns lead me to conclude that the evidence must be excluded. [ 62 ] Then, I conclude that having regard to all the circumstances, the admission of this evidence in the proceedings would bring the administration of justice into disrepute.

FOR THESE REASONS, THE COURT:

[ 63 ] GRANT the application. [ 64 ] DECLARE that exhibits VD1-10 to VD1-15 were obtained in a manner that infringed the applicant's right to be secure against unreasonable seizures as specified in

section 8 of the Charter . [ 65 ] EXCLUDE exhibits VD1-10 to VD1-15 in accordance with paragraph 24(2) of the Charter . Counsel: Lieutenant-Commander D. T. Reeves, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Major J.L.P.L Boutin, Directorate of Defence Counsel Services Counsel for Captain J.T. Wright