R. v. Strickland Date:, 2017 BCPC 1

Citation: R. v. Strickland Date: 20170109 2017 BCPC 1 File No: 167312 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WILLIAM ANGUS STRICKLAND RULING ON VOIR DIRE OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: P. Cheeseman Counsel for the Defendant: B. Heflin Place of Hearing: Victoria , B.C. Date of Hearing: November 15, 2016 Date of Judgment: January 9, 2017

I. INTRODUCTION [ 1 ] William Angus Strickland is charged with falsely representing himself as a peace officer, including using a badge or other equipment in a manner that would likely cause a person to believe he was a peace officer, contrary to ss. 130(1) (

a) and (

b) of the Criminal Code . He is also charged with driving in a manner dangerous to the public contrary to s. 249(1)(

a) of the Code . [ 2 ] The Crown alleges that on or about June 7, 2015, Mr. Strickland was driving in the City of Victoria in a vehicle that resembled an unmarked car typically driven by members of the Victoria City Police Department (“VCPD”). The Crown says that Mr. Strickland was observed to be speaking into a radio as if he were a peace officer. One witness was able to recall a partial plate and provided that information to police. A search indicated the plate and vehicle belonged to Mr. Strickland. [ 3 ] Using this information, Constable Leblanc of the VCPD began an investigation of Mr.

Strickland by reviewing the CPIC and PRIME Vancouver Island (“PRIME”) databases. Among other things, Constable Leblanc located an old “mugshot” of Mr. Strickland on PRIME. Constable Leblanc testified that the photo would have been exported to PRIME from the “MUGS” database, a system that collects and collates photographs of individuals that have been arrested. The photo was one taken of Mr.

Strickland in May, 2014, when he was arrested, but ultimately not charged, for harassment contrary to s. 264 of the Code . [ 4 ] Constable Leblanc included the photograph in a photo line-up in which the complainant identified Mr. Strickland as the person driving the look-alike police vehicle. With that information, Mr. Strickland was then arrested on these charges. [ 5 ] At the commencement of this trial, I declared a voir dire to determine the admissibility of the identification evidence of Mr. Strickland. Mr.

Strickland seeks an order excluding this evidence on the grounds that the retention and use of his mugshot constitutes a violation of his s. 8 right against unreasonable search and seizure. The Crown denies that the use of the photo constitutes a violation of Mr. Strickland’s s. 8 rights, but submits, alternatively, that the evidence should not be declared inadmissible pursuant to s. 24(2) of the Charter . II. ISSUES [ 6 ] The application to exclude evidence in this voir dire raises several issues. They are: (

i) whether the taking of Mr. Strickland’s photograph upon his arrest constitutes a search or seizure; (ii) if so, whether the taking of the photograph constitutes a violation of Mr. Strickland’s s. 8 right against unreasonable search and seizure; (iii) if not, does s. 8 of the Charter apply to the retention and use by police of the photograph; (iv) if so, did the retention and use of the photograph by police in these circumstances constitute a violation of Mr. Strickland’s s. 8 right against unreasonable search and seizure; and, (

v) if so, should the evidence be excluded from the trial pursuant to s. 24(2) of the Charter . III. BACKGROUND [ 7 ] In addition to the facts set out above, I find the following evidence to be relevant to a determination of the issues in this voir dire . [ 8 ] In May, 2014, Sergeant Rice of the VCPD received a complaint that Mr. Strickland was harassing a former domestic partner. The complaint indicated that incidents of harassment may have occurred in Oak Bay and the Westshore. He also received information involving a possible firearms offence in Victoria.

Sergeant Rice testified in this voir dire that his investigation caused him to form reasonable and probable grounds that Mr. Strickland had engaged in criminal harassment contrary to s. 264 of the Code . As a consequence, he arrested Mr. Strickland. [ 9 ] In accordance with his usual practice, Sergeant Rice placed Mr. Strickland in cells upon his arrest. As a consequence of being placed in cells, police obtained personal information about Mr. Strickland, including his fingerprints and a booking photograph or mugshot of his face and neck area. Other information concerning Mr.

Strickland’s weight, height, hair colour and race was also harvested by police. [ 10 ] Sergeant Rice testified that in directing staff at police cells to fingerprint and photograph Mr. Strickland, he was exercising his common law authority. He testified further that he understood the authority was discretionary and that he did not exercise it in every case. It was done in Mr. Strickland’s case but with little thought on the part of the officer. Still, I accept one of the motivating reasons would be that Sergeant Rice could then release Mr.

Strickland on a Promise to Appear. [ 11 ] Sergeant Rice handed the harassment investigations over to the Oak Bay and Westshore police departments respectively. He assumed conduct of the alleged firearms offence as it was a matter within the jurisdiction of the VCPD. Ultimately, Sergeant Rice concluded he had no basis to lay any firearms charge. The evidence in this voir dire is that no charges were laid under s. 264 of the Code either. Though he was arrested, and his photo and fingerprints taken, Mr.

Strickland was never charged with any offence related to his arrest in May, 2014. [ 12 ] Special Constable Eric Hinrichsen, a jail guard with the VCPD, testified that he would have taken Mr. Strickland’s fingerprints and photograph in May, 2014. While he had no specific recollection of Mr. Strickland, Special Constable Hinrichsen testified that he routinely takes fingerprints and photographs, as many as three to four times each day, at the direction of police officers. In addition to

the fingerprints and photographs, the officer collects so-called “tombstone information”, all of which is entered into a booking system. That information is entered into to the “InteliBook Canada” database and migrates automatically to both the MUGS and PRIMEsystems. Among other things, the InteliBook database allows police to keep track of who has and has not been in cells. It may be usefulfor administrative purposes but clearly the information is not limited to administrative needs. [13] I find on the evidence taken in this voir dire that the photograph taken of Mr.

Strickland consequent to his arrest in May, 2014,was taken pursuant to Sergeant Rice’s common law powers upon arrest. The officer in charge of taking and recording the information,Special Constable Hinrichsen, would take this information as a matter of course and upload it to a booking system which automaticallytransferred the information to several databases. To access these databases, one must at a minimum be a VCPD officer or someoneauthorized by the VCPD, such as Special Constable Hinrichsen.

Information transferred to PRIME from booking information harvestedby the VPCD is accessible to all police on Vancouver Island. It was not entirely clear on the evidence whether this same information isaccessible to police outside of Vancouver Island but I will assume for the purposes of this voir dire that it is not. [14] I find also that the decision to take a suspect’s photo consequent to arrest is undefined in the sense the discretion is left to thearresting officer when done pursuant to common law powers. A mugshot or booking photograph may or may not be taken but there aregood reasons for doing so.

Still, there is no policy or direction in the VCPD regarding the use or retention of the photos. Onceharvested, Constable Leblanc confirmed that the information is used for investigative purposes, but clearly not simply for aninvestigation into the circumstances of the arrest. Rather, the information is retained and scattered through several databases. It isavailable to any police officer having access to the PRIME, InteliBook Canada and the MUGS systems.

There is no provision or thoughtgiven to the retention or destruction of these records depending on the outcome of the investigation following arrest. [15] Once entered, this information remains on these databases for a decade or two, as best as police were able to estimate.

Photographic information is available for downloading over that time for any number of investigative purposes, including for inclusionin photo line-ups having nothing to do with the subject of the photograph - except that his or her features line up with certaincharacteristics that might be useful in a given photo line-up. [16] Bearing these facts in mind, I now turn to the issues raised in this voir dire. IV. LEGAL ANALYSIS (

i) Is the taking of the photograph upon arrest a prima facie search? [17] The Crown submits that Mr. Strickland has no expectation of privacy in a photograph of his face and, as such, the taking of hisphotograph during the booking process in May, 2014, did not trigger the application of s. 8 because it is not a search. The Crownsubmits it follows that the retention of the photograph similarly cannot be a search.

As such, the Crown submits the defendant has notmade out a violation of his s. 8 right and there is no need to consider whether to exclude the evidence pursuant to s. 24(1) of the Charter. [18] The Crown bases its first argument on several cases, at least one of which states that the taking of a photograph even after arrestis not a search and thus cannot be protected under s. 8 of the Charter. Even still, the Crown acknowledges that the case authorities arenot all consistent or clear and that for the most part the focus of the case law has been on the taking and retention of fingerprints.

Itsubmits that issues regarding the taking of a person’s photograph by police, including their mugshot, can be determined largely byanalogy. [19] In determining what might or might not be included in the protection guaranteed by s. 8 of the Charter, it is, I find, useful tostart with a consideration of the purpose of that section. As the court emphasized at p. 156 of Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, the Charter is, among other things, a purposive document and its provisions must be given a purposiveanalysis.

Section 8 of the Charter guarantees a broad and general right to be secure from unreasonable search and seizure which extendsat least so far as to protect the individual’s right of privacy from unjustified state intrusion. At a minimum, the right to privacy includesthe right of people to be secure in their persons: Southam, at pp. 158 - 159. [20] In R. v. Plant (1993), (SCC), 84 C.C.C. 203 (SCC), the court wrote the following at para 20 as it consideredwhether a person had a privacy interest in their hydro records: 20.

In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect abiographical core of personal information which individuals in a free and democratic society would wish to maintain and control fromdissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices ofthe individual… [21] It is important to acknowledge always that the right guaranteed by s. 8 is limited. In R. v.

Rodgers, [2006] SCC 15, for example,the court emphasized that the right to be secure against unreasonable search and seizure, like all Charter protected rights, is not absolute. Rather, as the following passages from paras. 25 and 26 of Rodgers indicate, s. 8 protects only unreasonable searches or seizures: 25 There is no question that the taking of bodily samples for DNA analysis without the person's consent constitutes a seizure withinthe meaning of s. 8 of the Charter. An individual's right to be secure against search and seizure, however, is not absolute.

Section 8 onlyprotects against "unreasonable" searches or seizures. To state it in the positive, s. 8 protects reasonable expectations of privacy. ThisCourt has held that for a search to be reasonable: (

a) it must be authorized by law; (

b) the law itself must be reasonable; and (

c) themanner in which the search was carried out must be reasonable (R. v. Collins, (SCC), [1987] 1 S.C.R. 265, at p. 278; R.v. Stillman, (SCC), [1997] 1 S.C.R. 607, at para 25)... 26 The notion of what is "reasonable", by its very nature, must be assessed in context. This Court in R. v. McKinlay Transport Ltd., (SCC), [1990] 1 S.C.R. 627, reiterated the need for a flexible and purposive test. Wilson J. stated (at p. 645): Since individuals have different expectations of privacy in different contexts and with regard to different kinds of information anddocuments, it follows that the standard of review of what is "reasonable" in a given context must be flexible if it is to be realistic and

meaningful. [22] At least one purpose then of s. 8 of the Charter is to protect a person’s reasonable expectation of privacy. At a minimum, s. 8protects a biographical core of personal information from state intrusion or interference.

This broad right is tempered by the word“reasonable”; a word that finds it precise meaning only by examining the context in which the privacy right is intruded upon by thestate. [23] Still, the Crown submits that a person has no privacy interest in a photograph of their person taken by a state agent without theirconsent, and thus it is unnecessary to consider whether, in the context of this case, the intrusion into Mr. Strickland’s privacy wasunreasonable. [24] One of the leading cases, albeit dealing specifically with fingerprinting but cited in nearly all of the cases addressing this firstissue is R. v.

Beare, (SCC), [1988] 2 S.C.R. 387. At issue in Beare was the constitutional validity of s. 2 of theIdentification of Criminals Act, R.S.C. 1970, c. I-1, as well as various sections of the Criminal Code dealing with fingerprinting. [25] Mr. Beare and another accused in an entirely different matter, Mr. Higgins, refused to comply with legislation requiring them toattend for fingerprinting following their arrest.

After discussing the nature and purpose of the legislation requiring fingerprinting uponarrest, the court went on to consider whether the provisions offended against the principles of fundamental justice by violating therespondents’ right to privacy. The court said the following at paras 58 and 59 of Beare: 58 Assuming

section 7 includes a right to privacy such as that inhering in the guarantee against unreasonable searches and seizures ins. 8 of the Charter, a proposition for which I have considerable sympathy, it must be remembered that the present Chief Justice inSoutham was careful to underline that what the Constitution guaranteed was a "reasonable expectation" of privacy (at p. 159). 59 It seems to me that a person who is arrested on reasonable and probable grounds that he has committed a serious crime, or aperson against whom a case for issuing a summons or warrant, or confirming an appearance notice has been made out, must expect asignificant loss of personal privacy.

He must expect that incidental to his being taken in custody he will be subjected to observation, tophysical measurement and the like. Fingerprinting is of that nature. While some may find it distasteful, it is insubstantial, of very shortduration, and leaves no lasting impression. There is no penetration into the body and no substance is removed from it. [My emphasis] [26] With regard to s. 8 specifically, the court wrote at para 64: 64

Section 8 guarantees the right to be secure against unreasonable search and seizure. Assuming fingerprinting can be looked uponas a search (a view which has been rejected in those cases that have considered it; see R. v. McGregor (1983), (ONSC), 3 C.C.C. (3d) 200 (Ont. H.C.), and Re M. H. and The Queen (No. 2) (1984), (AB KB), 17 C.C.C. (3d) 443)(Alta. Q.B.), aff'd without written reasons (1985) (AB CA), 21 C.C.C. (3d) 384 (Alta.

C.A.), leave to appeal to thisCourt granted September 19, 1985, [1985] 2 S.C.R. ix), it seems clear that fingerprinting would not be unreasonable in the present casesfor the same reasons that it does not violate the principles of fundamental justice. [27] I do not find, particularly having regard to para 59 of Beare, that the court can be taken to have said that a person has no privacyinterest in either their fingerprints or a photograph of their face taken by authorities.

What the court does say in my view is that in thecontext of an arrest, an arrestee can have no reasonable expectation that his or her privacy interest in their fingerprints or facial imagewill be left unimpeded by state intrusion. It does not follow that in some other context the same person will not have a reasonableexpectation of privacy over that same personal information in respect of state interference. [28] Beare was cited by Goldie J.A. in R. v. Dilling, [1993] B.C.J.

No. 865, at para 35 as authority for the proposition that followingan arrest the fingerprinting, photographing, searching and seizing of possessions from a person do not violate rights protected under s. 7,including the right to privacy guaranteed by s. 8. The issue in Dilling was whether the photographing of a person before being arrested,but while detained by police, violated the person’s right to privacy.

Dilling has been cited in other cases as authority for the propositionthat the taking of a photograph of a person by police is not a search in that the individual has no privacy right in this information. [29] The defendant in Dilling was detained by police shortly after he was observed soliciting an undercover police officer for sexfrom his car. During his detention, one officer took a Polaroid flash picture of the driver. It was conceded in Dilling that the solepurpose of the photograph was to assist the undercover officer to identify him at his court appearance. [30] Mr.

Dilling argued the photograph violated his right against self-incrimination and his right against unreasonable search andseizure guaranteed under s. 8 of the Charter. While Justice Goldie, writing for the court, dealt with both issues separately in “watertightcompartments” his analysis, by his own admission, overlapped. [31] Fundamental to both questions was Justice Goldie’s reasoning that “the camera recorded what the eye of each police officercould see at the moment it was taken”: Dilling, at para 13.

He added that at para 14 that a “still photograph is no more permanent than asketch or the officer’s notes.” At para 15 of the reasons, Justice Goldie wrote: In my view the taking of an unposed photograph is not an inappropriate way to preserve evidence of identity in less serious crimes. Because of the Polaroid technology employed there is no negative from which additional prints can be easily made.

The one positiveprint was appended to Constable Rogers' notes, recording in visual form what the police constable could have preserved in written form. [my emphasis] [32] Following a discussion about the state’s use of electronic surveillance and particularly the concerns of Justice La Forestregarding incursions into an individual’s privacy, Goldie noted the “reasonable expectations of privacy of one who engages in bidding ina public place for the sexual services of a prostitute” and wrote the following at para 43: 43 What I think is conclusive in respect of s.8 is the fact that the appellant was observed in committing the offence.

From this flowsthe legality of the detention, the duty of the police officer to enforce the law, the need to establish the identity of the detained person, and

the preservation of what was so established. In this circumstance a photograph taken without the consent of the person detained, if it is aseizure at all, is a reasonable seizure. [33] Dilling is not, in my respectful view, authority for the proposition that the taking of a photograph by police during aninvestigation or upon arrest is not a search, or a seizure. It does provide authority for the proposition that a person can have noreasonable expectation of privacy from state intervention when soliciting for prostitutes in public.

The privacy interest in a photographof one’s face, for example, exists, but as against state intrusion in that circumstance the expectation is simply unreasonable. [34] Dilling was considered and ‘indirectly’ applied by Justice Wilson in R. v. Do, [2002] B.C.J. No. 3255.

It is important, I find, tonote that at para 32 of his reasons, Justice Wilson held that the “fingerprinting and photographing of a person is an invasion of thatperson’s privacy, unless it is justified in law, and it is prima facie an infringement of ss. 7 and 8 of the Charter.” This point is reiteratedat the end of his reasons as well. [35] At issue in Do was the fingerprinting and photographing of the accused before he was arrested but while he was underinvestigation for a drug offence.

Having determined that the taking of this personal information was a prima facie infringement of ss. 7and 8, Justice Wilson went on to consider whether the justification for the identification process was lawful. That led to his consideringa number of cases including R. v. Connors (1998), (BC CA), 121 C.C.C. (3d) 358; R. v. Beare; R. v. Nicholson,[1999] B.C.J. No. 1330; R. v. Nguyen and Dang, [2001] B.C.J. No. 2986; and R. v. Multani, [2002] B.C.J. No. 82.

It was through theadoption of the reasons of Justice Curtis in Multani that Justice Wilson indirectly applied Dilling. [36] The Crown points to paras 46 and 47 of Do, where Justice Wilson discusses the reasons of Justice Curtis in Multani, as supportfor the proposition that the taking of a photograph of a suspect during an investigation is not a search. At para 47 of Do, Justice Wilsondoes state that he adopts Justice Curtis’ reasoning in Multani “as far as the photographs go”.

It is important therefore to bear in mindwhat Justice Curtis found in Multani regarding s. 8 of the Charter. [37] In my view, it is clear from the passage of Multani reproduced below that Justice Curtis accepted the taking of the photographconstituted a search, but that the search was - in the circumstances - reasonable and therefore not a violation of s. 8 of the Charter. Para23 of the reasons in Multani provide as follows: 23 When Constable Fedirchuk observed Mr. Multani at the scene it was his duty to identify him properly, and in the course of doingso to make and record accurate evidence of identity.

In the course of doing so, he could make notes of his observations, and he couldhave made a sketch in his notes had he chosen to do so. Generally, a photograph will provide evidence that is more reliable than notes orsketches. Because traffic enforcement officers had frequently experienced drivers unable to produce driver's licences, giving falsenames, Constable Fedirchuk and others had adopted a practice of taking Polaroid pictures which they did not publish, but kept solely forthe purpose of their own notes.

As this case does not come within the ambit of the Identification of Criminals Act, I find it to bedistinguishable from the cases to which that Act applies. In those circumstances, I find the reasoning of the B.C. Court of Appeal in theR. v. Dilling case is applicable.

There has been no unreasonable search and seizure, and the photograph is properly admissible. [Myemphasis] [38] Multani is quite similar to Dilling in that both courts found the taking of a Polaroid picture, with its built-in limits on widespreadpublication, did not constitute an unreasonable invasion of an accused person’s privacy in the context of those two investigations.

In bothcases, particularly with the emphasis on the preservation of a modicum of privacy for each of the accused, the courts must be taken tohave recognized an underlying privacy interest in the subject of the photograph which nonetheless did not shield the subjects from thatform of state intrusion in the circumstances. [39] The facts in Do differ from those in Multani and Dilling in that the photograph of Mr. Multani was taken at a police station;there is no sense that it was a simple Polaroid snap though there is also no evidence to the contrary.

Justice Wilson found also that thephotograph was not given voluntarily and there seems on the facts to have been a great deal of compulsion. These facts makes thedecision on the photographs in Do difficult to reconcile with the reasons of the court in other decisions relied on by the Crown, includingR. v. Shortreed, (ON CA), [1990] O.J. No. 145 (Ont. C.A.) where the court found no issue with police taking aphotograph of a suspect in public during an investigation without his consent “provided no physical compulsion is involved.” [40] Still, Justice Wilson must be taken to have accepted that the taking of Mr.

Do’s fingerprints and photograph was a search as hedoes at paras 32 and 51 of his reasons. At para 51 in particular, Justice Wilson wrote: …I thus find, notwithstanding the prima facie infringement of ss. 7 and 8, that the evidence of the fingerprints taken from Mr. Do andthe photograph taken of him are both admissible. [41] The Crown also referred to the reasons of the court in R. v.

Vu, 2007 BCPC 344, and in particular to para 32 where the courtwrote that “the taking of a photograph of the accused by police following his arrest was not a search following the decisions of Dilling,Multani and Do.” I regret that I am unable to agree with this one passage of the reasons in Vu, with the greatest of respect, for severalreasons. First, I note that this question was not the main question before the court and, as such, it is obiter.

Secondly, having consideredthe matter in these reasons, I have found that none of the courts in either Dilling, Multani or Do considered the question of a person’sright of privacy upon arrest. Thirdly, for the reasons given, I am not satisfied those cases held the photographing of a person while underinvestigation was not a search such that the reasonableness of the state action never came into issue. And, finally, I find the passage atpara 32 of Vu is not supported by the courts in Beare, and R. v.

Bishop, [2013] BCSC 522, as examples. [42] I have already referred to the passage in Beare at para 59 in which La Forest J. states that a person who has been arrested, oragainst whom the case for the issuance of a summons or warrant has been made out, must expect a significant loss of personal privacy.

Specifically, the court wrote that the person “must expect that incidental to his being taken into custody, he will be subjected toobservation, to physical measurement and the like.” I do not see how this statement could be taken to exclude from this reducedexpectation of privacy the photographing of the person arrested by police. [43] In R. v. Bishop, [2013] BCSC 522, Justice Bruce found she was satisfied that the photographing of an accused during an

investigation did not constitute a search despite also finding the cases on the point confusing and contradictory. Still, Justice Bruce held the following at para 133 of her reasons: Returning to the case at hand, whether or not the common law right to fingerprint an accused upon arrest continues to exist in spite of the enactment of the Identification of Criminals Act, I am unable to accept that a violation of the Act must be deemed to be a breach of the accused's rights under s. 8 of the Charter.

The authorities cited above support a conclusion that photographing an accused in the course of a police investigation is not a search. I agree. I am also satisfied that if a photograph of an accused during the booking-in process can be regarded as a search, it is not unreasonable provided the arrest is lawful. A photograph at this time is necessary to identify the accused, particularly if he is detained in custody.

It is not a serious invasion of privacy in the circumstances . [My emphasis] [ 44 ] When considered in context, bearing in mind the purpose of s. 8, it is difficult to see how the taking of a photograph of a person following arrest, without their consent, is not a search or seizure within the meaning of s. 8 of the Charter .

To paraphrase the court in Plante , this photograph - a mugshot to be specific - serves to reveal at least one intimate detail of the person: that is to say that the person has been arrested. [ 45 ] Unlike Dilling (even assuming it holds that the taking of a photograph on investigation is not a search) the modern mugshot is in no way similar to a Polaroid snap. A mugshot tells the world that at a certain time and at a certain place, this person was placed under arrest for a criminal offence. It is not akin to a photograph captured by security cameras at the mall.

In Dilling , even in the context of a prostitution sting, Justice Goldie emphasized the limited intrusion on the accused’s privacy with the Polaroid snap; it could not be widely circulated. But what if the photograph in Dilling was taken by a cell phone, and what if it was instantly transferred to the PRIME database using an example? The accused in Dilling would have no reasonable expectation his privacy would not be intruded upon by the state as it investigated his solicitation by the taking of his photograph.

He would, in my view, have a reasonable expectation that that photograph would not be disseminated any more than necessary for investigative purposes. It follows that Mr. Dilling had a privacy interest in the Polaroid snap taken by police and that the taking of the photo was a search or seizure. It was simply the case that the intrusion was not in the circumstances unreasonable so that the search or seizure in Dilling did not violate Mr.

Dilling’s s. 8 rights. [ 46 ] For all these reasons, I find that there is a privacy interest in a photograph of one’s face taken by police without consent, whether for investigative purposes or following arrest.

The taking of such a photograph triggers s. 8 in that it must be determined whether the person’s reasonable expectation of privacy as against state intrusion is violated in the circumstances. (ii) Is the taking of a photograph following arrest reasonable? [ 47 ] The reasonable expectation of privacy against state intrusion guaranteed by s. 8 of the Charter does not guarantee a right not to be photographed or fingerprinted upon arrest. In R. v. Beare , at paras 22 and 23 , the court outlined the state’s purposes in taking the fingerprints of accused persons charged with a criminal offence.

At para 35 of Do , Justice Wilson found these same reasons applied to the searching and photographing an accused upon arrest. Similar findings were made by the courts in R. v. Bishop , at para 133.

There can be no doubt, as these courts have held, that the compelling state interest in identifying and documenting and searching the accused following arrest outweighs any privacy interest the accused may have in their personal privacy, including the photographic image of their face. [ 48 ] Still, for reasons I will discuss in more detail in the next section, it is important to bear in mind the state’s purpose in collecting this information following arrest.

As Justice Wilson accepted in Do , the reasons set out in Beare relating to fingerprints apply equally, for the most part, to mugshots of a person placed under arrest. Those are set out, as noted, at paras 22 and 23 of Beare as follows: 22 Fingerprints serve a wide variety of purposes in the criminal justice system.

These include linking the accused to the crime where latent prints are found at the scene or on physical evidence; determining if the accused has been charged with, or convicted of other crimes in order to decide whether, for example, he should be released pending trial or whether he should be proceeded against by way of

summary conviction or indictment; ascertaining whether the accused is unlawfully at large or has other charges outstanding; and assisting in the apprehension of an accused should he fail [page 400] to appear. As well, fingerprints taken on arrest are used to identify prisoners with suicidal tendencies, sex offenders, career criminals and persons with a history of escape attempts so that they can be segregated or monitored as may appear appropriate. 23 Fingerprints are also of great assistance in the judicial process.

Thus in addition to their utility in positively identifying an accused, they may also assist the Crown in determining the punishment it should seek by revealing, for example, whether the accused is a first offender or otherwise. This, of course, will be of assistance to the court in imposing an appropriate sentence. [ 49 ] These factors support the case for the taking of an accused’s prints following their arrest. Taken in context, the state interests outlined above far outweigh any privacy interest an accused person has in their personal privacy at the time of arrest.

The intrusion into their personal privacy by way of fingerprinting, photographing and searching and seizing upon arrest is, as the court also notes at para 61 in Beare , minimal in comparison to the arrest itself. The interference with the accused person’s privacy - while it is an intrusion by the state - is not unreasonable. [ 50 ] The factors set out at paras 22 and 23 of Beare also support the retention of this personal information up to the conclusion of trial and sentencing.

What Beare does not decide, as noted at para 62 of the reasons, is whether and when the retention of this information outside of these circumstances ceases to be constitutionally valid. [ 51 ] Before turning to the question of the constitutional validity of the retention of Mr. Strickland’s mugshot, I will summarize my findings to this point. I find that the taking of Mr. Strickland’s photograph upon arrest was a search but not unreasonable for the reasons outlined in Beare . The mugshot taken in May, 2014, following Mr.

Strickland’s arrest for harassment, contrary to s. 264 of the Code, did not violate his right against unreasonable search and seizure. The question is whether police lawfully retained the photograph that I find was lawfully taken. (iii) Does s. 8 of the Charter apply to the retention of Mr. Strickland’s photograph?

[52] While the court in Beare did not decide the question of the retention of an accused person’s fingerprints, it did identify the issueas “raising important considerations”. Those important considerations were the subject of litigation in the following cases referred to bycounsel in this case: R. v. O’Connors, (1988) 49 B.C.L.R. (3d) 376; R. v. Dore, (ON CA), [2002] 162 O.A.C. 56;and R. v. DeJesus, [2010] ONCA 581. These cases in turn considered a number of other cases involving the retention of personalinformation taken by police upon the arrest of an accused person. [53] Mr.

Strickland relies on the reasons of Feldman J.A. in Dore. There the question was whether the retention and use of theaccused’s fingerprints, after criminal charges against him were withdrawn, constituted an unreasonable search and seizure contrary to s.8. Feldman J.A. began the analysis by satisfying himself that s. 8 of the Charter applied to the taking of fingerprints, and that ittherefore applied to the retention of those prints. He then went on to consider whether in the context of the case the retention violatedthe accused’s s. 8 right.

Feldman J.A. concluded it did not but only because the accused had not asked police to destroy his prints on file. [54] For the reasons given, I have found that s. 8 of the Charter does apply to the taking of Mr. Strickland’s photograph. I find, asthe court in Dore did with respect to the accused’s fingerprints, that the photograph “remains under the protective mantle of s. 8 so longas the seizure continues.” See also R. v. Colarusso (1994), (SCC), 87 C.C.C. (3d) 193, at p. 222. (iv) Did the retention of Mr.

Strickland’s mugshot violate his s. 8 right? [55] This finding then leads to the question whether the retention of Mr. Strickland’s mugshot by police after it was determinedcharges would not be laid against him violated s. 8. The following passages from paras 37 and 38 of Dore guide this next part of theanalysis: 37 In this case the constitutional attack is on the retention of the fingerprints rather than on any subsequent seizure.

As affirmed inColarusso and subsequent cases, the "protective mantle" of s. 8 extends during the duration of the holding and retention of the thingseized in order to protect the privacy interest of the person from whom it was seized.

Consequently, if the constitutional safeguards thatwere present and justified the seizure are no longer in place, then unless they are replaced by new constitutionally accepted safeguards,the retention as an ongoing seizure may become unreasonable and no longer justifiable. 38 In order to determine whether and if so at what point an acquittal or discharge on the original charge which allowed the police totake the fingerprints makes the ongoing retention and use of those fingerprints an unreasonable seizure, the court must undertake atraditional s. 8 analysis, the onus being on the Crown to show on a balance of probabilities that (

a) the ongoing retention is authorizedby law; (

b) the law is reasonable; and (

c) the retention in this case was reasonable: R. v. Collins (1987), (SCC), 33C.C.C. (3d) 1 at 14 (S.C.C.). [My emphasis] (

a) Is the Retention of the Photograph Authorized by Law? [56] As noted earlier in these reasons, the photograph or mugshot of Mr. Strickland was taken pursuant to Sergeant Rice’s commonlaw powers. I accept, as the court does in R. v. Bishop at para 133, that s. 8 is not violated if an accused is required pursuant to anofficer’s common law powers to submit themselves to being photographed and fingerprinted upon arrest. [57] In Dore, the court accepted that the accused was fingerprinted pursuant to the Identification of Criminals Act (the “Act”).

Asthe court in Dore explained, the Act explicitly allows for the taking of fingerprints upon arrests but is silent on their retention. At paras40 and 41, Feldman J.A. held that retention was implicitly authorized by the Act because it allowed for the information taken from anaccused to be available to law enforcement officers without any temporal or other conditions. [58] At common law, the purpose for the taking of the photograph upon arrest is to, among other things, facilitate the accused’srelease pending some resolution of the matter.

This necessitates the retention of the information in the photograph, elsewise the exercisewould be pointless. As such, there must be some implicit common law power to retain the photograph of a person arrested but, as withDore, the extent of that power must meet constitutional muster. (

b) Is it Reasonable for the Law to Authorize the Retention of the Photograph Once an Accused Person Has Not Been Charged? [59] In this section, the court is called upon to balance a person’s reasonable expectation of privacy against the importance of thestate objective. [60] In determining the precise nature of the privacy interest at issue, the court in Dore posed two approaches. At paras 43 and 44,Feldman J.A. wrote that one approach would be to consider whether a person retained a privacy interest in the informational componentof his or her fingerprints.

Alternatively, the court could accept that s. 8 is engaged when the constitutional basis for the initial seizure isremoved by, for example, an acquittal, such that “the person’s right to be left alone springs up again.” Ultimately, Feldman J.A. onlyconsidered the first option.

He found the accused had a privacy interest in the informational component of his fingerprints and heldultimately at para 64 that: 64 On the issue of whether a person does retain any expectation of privacy in the informational component of fingerprints, Iconclude that there is no basis in the case law or otherwise, to infer that a person who was subjected to fingerprinting upon arrest will nothave some reasonable expectation of maintaining or regaining his or her privacy in fingerprint information if the charge is disposed of inhis or her favour.

There is no reason to differentiate the expectation of privacy that an acquitted person has in such information from theexpectation that a person who has never been charged with an indictable offence would have, because it is information about and fromone's body not normally available without one's consent. Added to that in the context of retention is the nature of the storage by thepolice which tends to stigmatize as a criminal the person whose fingerprints are retained.

Although it may be that because of the natureof that information, the expectation of privacy is minimal when compared, for example, to information which can disclose the geneticmake-up of the person and not merely the person's identity, I conclude that a person can have some privacy interest in the retainedfingerprints. [61] I see no reason to distinguish a photograph taken by police after arrest without the consent of the accused from this analysis. As

with fingerprints, a mugshot is stored in various police databases and, even more so than fingerprints which can be taken in a variety of circumstances, a mugshot will stigmatize the person as a criminal. Although I will return to this shortly, unlike fingerprints, mugshots are downloaded from these databases by police at various times, for various reasons not necessarily having to do with the accused, and shown to members of the public for purposes of identifying suspects who might either be the accused or someone fitting the profile of the accused. [ 62 ] Mr.

Strickland’s interest in his mugshot may not lie as much in its informational component as in the photograph itself: either way, I find that he has a privacy interest in it. [ 63 ] A person’s privacy interest in a mugshot taken by police was accepted by Justice Boilard in R. c. Small , [2006] R.D.S.D. No. 187, referred to in the reasons for appeal at R. c. Small 2007 QCCA 1417 .

As the Crown notes, Justice Boilard overruled the lower court’s finding that the accused’s s. 8 right was breached when police identified him as a suspect using a mugshot police had taken of him when he was arrested years earlier for an offence for which he was acquitted. However, the lower court was not found to have erred in concluding that the accused had a privacy interest in the police photograph.

Rather, Justice Boilard accepted that the policy of the Montreal City Police to destroy photographs along with other anthropometric information following an acquittal struck the right balance between the person’s privacy interest and the interests of the state because it too enabled persons to ask that the information be destroyed. The fact police did not follow their policy in Sm all and destroy the information without being asked was held by the Superior Court to be of no moment. Mr.

Small’s appeal from Justice Boilard’s decision was dismissed but for reasons which have no bearing on this case. [ 64 ] For the reasons given, I have found that Mr. Strickland could reasonably expect to regain his privacy interest in the photograph of his face taken by police on his arrest in 2014 once it was determined that no charges would be laid against him. To paraphrase from the reasons of Feldman J.A. in Dore , at para 64 , once the decision was made not to charge Mr.

Strickland, his expectation of privacy in regard to his personal information, including the photograph of his face, would be no different than that of a person who has never been charged. As such, it falls to the state to demonstrate that the retention of this information in these circumstances is reasonable. (

c) Was the Retention Reasonable? [ 65 ] What is reasonable is highly contextual. It involves the balancing of the reasonable expectation of privacy and other societal interests including (again to paraphrase from para 66 of Dore ) effective law enforcement and in particular the state’s interest in maintaining as large a data bank of personal information including fingerprints and mug shots as possible. [ 66 ] While the Crown denies that Mr.

Strickland has any privacy interest in his mugshot, it relies on Dore , as support for the proposition that the retention and use of his mugshot in these circumstances only becomes unreasonable if police retain or attempt to use the photograph after he asks for its destruction.

The reasoning for this is found in the following passage from para 71 of Dore : In this context, where the state of retention is a static one, where the nature and degree of the privacy interest in the fingerprints is more minimal, and where the affected person is in the best position to know whether he or she does regain an expectation of privacy in the informational component of his or her fingerprints when a charge is disposed of in the person's favour, it seems to me that a reasonable balance is struck by holding that the right to be left alone in those circumstances arises if and when the person asserts his or her privacy interest by asking for the fingerprints to be returned or destroyed. [ 67 ] Mr.

Strickland emphasized that the context in this case is different.

First he argues that unlike the case in Dore , his personal information (his mugshot) does not rest in a static database; rather, he points to its downloading and potential use by police for various reasons, including for use in photo line-ups in cases in which he may not be involved. [ 68 ] The point in Dore , regarding the passive nature of the state’s intrusion on the privacy interest of the affected person is that having lawfully taken the person’s fingerprints and retained those in various police databases, the state takes no further action in regard to the prints.

In that way, Justice Feldman concluded that there was no change in the status quo even after an acquittal. [ 69 ] To an extent, that is the case with respect to Mr. Strickland’s mugshot as well in that the photo remains on the various databases as it was when police lawfully retained the photo they took of Mr. Strickland upon his arrest in May, 2014. The photo is not retouched or altered. The difference in this case is that police are not simply scanning an existing DNA data bank to compare prints from an investigation with those on file.

On the evidence in this voir dire , members of the VCPD at least are routinely downloading and utilizing personal information from at least three data bases. More importantly, they are passing that information along to third parties - the witness in this case - for the purposes of identification. [ 70 ] The evidence in this case is that police will harvest photographs from the MUGS database for photo line-ups using a specific algorithm. This information is shared both among police and with civilian witnesses.

While, like DNA, the use of this information can be used to eliminate a person as a suspect, the frailties of identification evidence may well put a person at risk in a way that DNA information cannot. Moreover, the sharing of this information with civilian witnesses means that a person can be identified as a criminal by a third party viewing a photo line-up even when the person has only been arrested and never charged.

The use of this information further serves to stigmatize the affected person in the way that police scans of existing DNA databases do not. [ 71 ] While many of the cases emphasize that the taking of bodily substances for the purposes of obtaining samples of DNA is a greater intrusion on a person’s privacy than the taking of a mugshot, it does not follow that this holds true for the subsequent retention and use of this personal information.

I find, for the reasons set out above, that in at least one context the retention and use of mugshots can be a greater intrusion on a person’s privacy. [ 72 ] The retention in this case is not identical to the case in Dore . Nor is the nature and degree of the privacy interest the same between the two cases. As I have noted, the privacy intrusion at issue here can be much greater than DNA on a data bank viewed only by police. In this instance, one’s mugshot is available for use by police not just for the investigation at hand, or even the investigation of the subject of the photo.

It is available on at least three data bases for use in any number of investigations. Once taken and posted on these electronic databases, the mugshots become the property of police to use as an investigative tool as and when needed for several

decades if not longer. [73] Finally, unlike the case in Dore, Mr. Strickland is not in a particularly better position than the state to determine when heregains his privacy interest. An important aspect of the analysis in Dore noted at para 69 was that the person knew (and could know) ofthe disposition of the charges such that they knew immediately when they again had a reasonable expectation of privacy in theirfingerprints. [74] There is no obligation on police to advise Mr. Strickland that he will not be charged.

Still, in this case, the allegations againsthim were investigated by three separate police departments. There is no evidence he knew this was the case. In any event, short ofcalling each of the departments to inquire about the investigation (an onus no one under investigation should have to bear) it is hard todetermine how or when Mr. Strickland would know he had regained his privacy interest in his mugshot.

I accept that with the passage ofa year or more a person might suspect they would not be charged, but I do not think it reasonable to hold they give up their privacy rightby failing to make these inquiries. [75] In contrast with the facts in Dore, the states’ retention and use of Mr. Strickland’s mugshot is not passive. This is personalinformation that is shared with the public without consent, albeit for law enforcement purposes. It is information that can serve tostigmatize its subject in the sense that mugshots are evidence a person was at one time arrested.

It is information that is used overdecades in investigations some of which could have nothing to do with the subject of the photograph. The retention and use of thispersonal information is not innocuous: unlike DNA, its use may not necessarily serve to exonerate a person or eliminate them as asuspect. [76] Unlike the case in Dore, this personal information can be utilized by the state before the person has any chance of knowing theyhave regained their privacy interest.

It is not reasonable in these circumstances, I find, to hold that it is reasonable for the state to retainand use this information up to the point Mr. Strickland asks that it be destroyed or, more specifically, removed from all databases. [77] For these reasons, I find that the retention and use of Mr. Strickland’s mugshot in this case violated his right againstunreasonable search and seizure contrary to s. 8 of the Charter. (

v) Should the Evidence be Excluded Pursuant to s. 24(2) of the Charter? [78] The final question is whether the identification evidence of Mr.

Strickland should be excluded pursuant to s. 24(2) of theCharter. [79] Section 24(2) provides as follows: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or deniedany rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [80] As the Crown submits, the leading case concerning the analysis to be applied by the courts in considering whether to excludeevidence pursuant to s. 24(2) of the Charter is R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353. There, at paras 67 to 71, thecourt held as follows: 67 The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term "administrationof justice" is [page 393] often used to indicate the processes by which those who break the law are investigated, charged and tried.

Morebroadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole. 68 The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining theintegrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediatecriticism. But s. 24(2) does not focus on immediate reaction to the individual case.

Rather, it looks to whether the overall repute of thejustice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It askswhether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that theadmission of the evidence would bring the administration of justice into disrepute. 69 Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been doneto the administration of justice.

Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breachdoes not do further damage to the repute of the justice system. 70 Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused,but rather at systemic concerns.

The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of thejustice system. 71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring theadministration of justice into disrepute engages three avenues of inquiry, each rooted in the public [page394] 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), acourt must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) theseriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious statemisconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message thatindividual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

The court's role on an 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 thecategories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins andsubsequent jurisprudence.

[81] With respect to the first part of the Grant analysis, the Crown submits the court need not distance itself from the evidence as“there was nothing to suggest the police had any idea they were breaching Mr. Strickland’s rights by retaining the booking photograph intheir database.” Nor was there “any case law to advise them that doing so would constitute a breach of Mr. Strickland’s Charter rights.” [82] Even assuming that is so, at the same time there is no evidence that anyone from the VCPD ever put their minds to the questionof the privacy rights of persons whose facial images populate their databases.

To the contrary, the evidence in this case is that VPCDofficers gave no thought to the privacy concerns of those photographed subjects. While the case law is somewhat scattered, there arecases in which the very issue of the privacy rights of persons whose mugshots remain on file with police has been considered so the issueis not novel. Moreover, the issue of data retention generally has been in the public realm for more than a decade.

This issue can havetaken no one by surprise. [83] In regard to this submission by the Crown, I also bear in mind the following comment by the court in Grant, at para 75: …ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with goodfaith: R. v. Genest, (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, (SCC),[1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para 59. [84] While the VCPD cannot be said to have acted in bad faith, it cannot be said the department acted in good faith.

Rather, theVCPD daily harvests and uploads personal information on an ad hoc basis with no thought to a retention policy. It makes thatinformation available to police throughout the Island and its members also share the information with civilians albeit as I have noted forlaw enforcement purposes. [85] The VCPD is not an unsophisticated party. Its failure to turn its mind to this issue in the present day cannot simply be shruggedoff by accepting that there was no case law to advise them.

Since Beare, law enforcement officials have known that data retention is anissue and in my view not just with respect to fingerprints. [86] In the absence of any evidence the VCPD put its mind to some kind of retention policy, I find no good faith on the department’spart. [87] In the second part of the Grant analysis, courts are called upon to evaluate the extent to which the breach at issue underminesthe interests protected by the right infringed: Grant, at para 76.

As the court also notes at para 76: …The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signalto the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringingthe administration of justice into disrepute. [88]

Section 8 of the Charter protects the rights of people to be secure in their persons against unreasonable state intrusion. Personalinformation, including a mugshot, falls within this protection.

While in the context of an investigation, an arrest, the process leading to atrial or sentencing hearing and even following conviction, a person will have a reduced expectation of privacy regarding their mugshot,fingerprints, and other identifying data, a person’s expectation of privacy in this information once it is determined that charges will notbe laid, are not substantially different than someone who has never been arrested. [89] In this case, Mr.

Strickland’s privacy interests were breached by police when they retained his mugshot long after it wasdetermined he would not be charged and when they used it on at least one occasion in order to investigate him for the offences chargedin this case. This was not a fleeting or technical intrusion into Mr. Strickland’s privacy.

The information was not just utilized by policebut shared publicly with the witness in this case. [90] The infringement in this case is not so trifling or minimal or short lived as to have no bearing on the repute of the administrationof justice. [91] In the third and last leg of the Grant analysis, the court must ask itself whether the truth-seeking function of the criminal trialprocess would be better served by the admission of the evidence or by its exclusion: Grant, at para 79. [92] Like the other parts of the test for exclusion, this calls for a balancing between the factors favouring inclusion such as - in thiscase - the reliability of the mugshot (of which there is no doubt), its importance to the Crown’s case (“one of several pieces ofinformation used to identify the suspect”) and the seriousness of the charge, against the vindication of the Charter right at issue.

Ultimately, taking into account all of the factors and the purpose of s. 24(2), it must be asked whether exclusion of the evidence is toohigh a price to pay in the circumstances. [93] The charge in this case of impersonating a peace officer is, as the Crown submits, a serious one. It is for that reason even moreimportant that the prosecution in this case be above reproach. The Crown submits in its written material that the mugshot of Mr.Strickland is “very important” to its case. It was used, as noted, as one of several pieces of information to identify the suspect.

Whilethe mugshot is reliable, it is not entirely clear that without it the Crown’s case is gutted, as the phrase is used in Grant, at para 83. Still, Iwill assume its exclusion will have an impact on the Crown’s case. [94] On the other hand, the inclusion of the mugshot in the trial of this matter will act as an implicit condonation of the actions orinactions of the VCPD. Here there is a complete failure by the VCPD to consider in any way the privacy interests of persons whoseinformation they were harvesting and storing and utilizing.

There is a complete absence of any evidence the VCPD put its mind to aretention policy though such policies are in place in other police departments in the country as evidenced by the reasons in R. c. Small. [95] The evidence in this voir dire is that the VCPD have for decades been retaining personal information and utilizing and sharingthat information widely on the Island. Giving no thought to Mr. Strickland’s privacy interests, his mugshot was shared with a civilianwitness.

The inclusion of the mugshot in this case would have to occur despite these concerns and despite what is not an insignificantintrusion into Mr. Strickland’s Charter protected privacy right.

[ 96 ] I am mindful of the potential impact the exclusion of the mugshot could have on the Crown’s case at trial. Nevertheless, on balance I find the introduction of this evidence in the trial of this matter would in these circumstances bring the administration of justice into disrepute. [ 97 ] For these reasons I order the mugshot of Mr. Strickland be excluded from the evidence in the trial of this matter. The Honourable Judge L. Mrozinski Provincial Court of British Columbia