2013 QCCQ 15544, 2013 QCCQ 15544

Unofficial English Translation R. c. Noël 2013 QCCQ 15544 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF CHICOUTIMI LOCALITY OF CHICOUTIMI "Criminal Division" No.: 150-01-038560-125 150-01-038561-123 150-01-038562-121 DATE: December 17, 2013 ______________________________________________________________________ PRESIDING: PIERRE SIMARD J. .C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

SIMON NOËL Accused ______________________________________________________________________ JUDGMENT Written version of the decision rendered orally on December 11, 2013 ______________________________________________________________________ JS1236 [ 1 ] The Court has before it a motion to exclude evidence under sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms .

The defendant, Simon Noël, argues that the search by a peace officer of the cell phone of a third party, Ian Lamirande- Bilodeau, was unlawful. [ 2 ] Thanks to this search, the peace officer, Thomas-Olivier Davis, was able to read text messages from Simon Noël. These texts gave rise to reasonable grounds for his arrest. [ 3 ] The defendant submits that the search of Lamirande-Bilodeau's cell phone was unlawful, that it should have been subject to a warrant under

Part VI of the Criminal Code , and that this constitutes a serious infringement of his right to privacy. [ 4 ] The prosecution disagrees, alleging, among other things, that Simon Noël had no expectation of privacy in Lamirande- Bilodeau's cell phone and that, consequently, he does not have the required interest to file a motion to exclude evidence. It also maintains that the search that was performed was lawful.

[ 5 ] The issue, therefore, is whether Simon Noël has an interest in contesting the lawfulness of the search of the telephone of the third party Lamirande-Bilodeau, whether, possibly, the search of this cell phone by Officer Davis was lawful and, finally, whether to exclude the evidence obtained.

THE FACTS [ 6 ] On October 25, 2011, Officer Thomas-Olivier Davis was working as a police officer with the School Intervention Program of the Sûreté du Québec in Baie-Saint-Paul. [ 7 ] A colleague, Officer René Chainé, stopped Ian Lamirande-Bilodeau on grounds under the Highway Safety Code . [ 8 ] Officer Chainé knew that Officer Davis wanted to meet with Lamirande-Bilodeau as part of an investigation into a hit and run incident.

Officer Chainé therefore asked Lamirande-Bilodeau to wait and notified Officer Davis, who arrived at the scene of the stop a few minutes later. [ 9 ] Approaching the vehicle and having asked Lamirande-Bilodeau to lower his window, Thomas-Olivier Davis smelled an odour of cannabis. He noticed that Lamirande-Bilodeau kept averting his eyes and that he was nervous. [ 10 ] He also noticed a cell phone and a backpack in the vehicle.

He questioned Lamirande-Bilodeau about the cannabis odour; Lamirande-Bilodeau didn't answer. [ 11 ] In July, information had been provided to Officer Davis that Lamirande-Bilodeau sold narcotics out of his vehicle, that he used text messages, and that he kept his drugs in his backpack. [ 12 ] Officer Davis then returned to speak with his colleague Chainé, who confirmed that he, too, had detected an odour of cannabis. [ 13 ] Both police officers then arrested Lamirande-Bilodeau for drug possession. Officer Chainé performed a frisk search of Lamirande-Bilodeau.

That search turned up nothing. [ 14 ] Officer Davis verified the backpack that was in the vehicle and found in it 130 grams of cannabis in six Ziploc bags. He also found a scale and pipe, both of which were contaminated. [ 15 ] Officer Davis also seized the cell phone that was sitting in the vehicle’s cup holder. It was of course Lamirande-Bilodeau's cell phone. At the scene of the stop, Officer Davis quickly checked the text messages on the cell phone to see if they revealed anything about customers or other persons involved in drug trafficking. It was a very

summary examination, but it enabled him to discover that Lamirande-Bilodeau had recently communicated with a person by the name of Simon. He put off searching the cell phone and completed Lamirande-Bilodeau’s arrest. [ 16 ] Lamirande-Bilodeau was brought to the station. [ 17 ] At the police station, Davis questioned Lamirande-Bilodeau. At around 3:20 p.m., he suspended his questioning and examined Lamirande-Bilodeau's cell phone more closely. He hoped to find information that would allow for more effective questioning of Lamirande-Bilodeau.

The officer checked the text messages that Lamirande-Bilodeau had saved. [ 18 ] The messages with Simon Noël again caught his attention, because a text message conversation had already been started between Noël and Lamirande-Bilodeau shortly before Lamirande-Bilodeau was stopped by Officer Chainé. A meeting between the two had already been set up. [ 19 ] Between 3:40 p.m. and 4:05 p.m., Officer Davis continued the text conversation with Simon Noël on Lamirande-Bilodeau's cell phone. He had the meeting confirmed by Noël, who thought he was communicating with Lamirande-Bilodeau.

Near the end, Simon Noël asked to call him. For obvious reasons, Officer Davis did not want to and found a pretext for not doing so.

At 5:22 p.m., the last text message occurred between Noël and Lamirande-Bilodeau's cell phone handled by Officer Davis. [ 20 ] Officer Davis, knowing that Simon Noël was leaving from the Saguenay region to come to Charlevoix, contacted a colleague in the district of Chicoutimi and explained to him his reasons for arresting the defendant Noël for possession for the purpose of trafficking. [ 21 ] With this information, Officer Jean-Pierre Girard quickly located the defendant, stopped him at Saint-Félix-d'Otis, and arrested him. [ 22 ] One of the individuals with whom Lamirande-Bilodeau had exchanged text messages was named Carl Murray.

He was arrested at 8 p.m. on October 25, 2012. Ian Lamirande-Bilodeau was released shortly after midnight. In addition, a telewarrant was obtained for Simon Noël's residence in La Malbaie. This telewarrant was requested at 11:25 a.m. and was obtained 40 minutes later. [ 23 ] Officer Davis acknowledges having read dozens of text messages on Lamirande-Bilodeau's cell phone. He says that the messages were not password-protected. Lamirande-Bilodeau did not give him consent to examine his cell phone. Officer Davis did not even ask him.

THE MOTION TO EXCLUDE [ 24 ] The defendant Simon Noël filed a motion to exclude under sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms . [ 25 ] Simon Noël maintains that his right to be secure against unreasonable search or seizure was violated because: - he had an expectation of privacy in the text messages he exchanged with Ian Lamirande-Bilodeau;

- no warrant had been issued prior to the search of Lamirande-Bilodeau's cell phone; - the search of the cell phone violated his right under

section 8 of the Canadian Charter of Rights and Freedoms ; - if it weren't for the information found in the text messages, the police officers would not have had reasonable grounds to arrest him and the drugs found in his vehicle would not have been seized. [ 26 ] Simon Noël therefore asks that the evidence obtained as a result of the search of Lamirande-Bilodeau's cell phone be excluded under section 24(2) of the Charter . ANALYSIS AND DECISION [ 27 ] Recently, on November 7, 2013, the Supreme Court rendered judgment in R. v.

Vu . [1] In that case, the police officers obtained a warrant that did not mention the search of computers and cell phones. During the search, the police officers found marijuana, computers and a cell phone. The search of these items turned up evidence establishing that the appellant was the occupant of the house. Vu maintained, during his trial, that this search was illegal. [ 28 ] The legal context of Vu differs from that of the present case because the authority to search during an arrest was not at issue.

However, the Supreme Court reiterates therein that the search of a computer is a serious invasion of privacy. [ 29 ] In 2013, in Fearon , [2] the Court of Appeal for Ontario analyzed more specifically the authority to search a cell phone during an arrest. [ 30 ] Fearon had been arrested for armed robbery, and following his arrest the police officers found a cell phone on his person.

The contents of this cell phone were examined by the police officers both at the scene of the arrest and the police station. [ 31 ] At trial, Fearon tried to have the evidence obtained from his cell phone excluded by arguing his right to the protection offered under

section 8 of the Charter of Rights and Freedoms . [ 32 ] According to the Court of Appeal for Ontario, the search of a cell phone falls within the power of a search incident to arrest as developed by the common law.

Such a search is therefore legal and therefore reasonable, if the criteria justifying the exercise of such power are met. [ 33 ] More specifically, the judges point out that a search incident to an arrest must imperatively be related to the arrest. [ 34 ] On July 11, 2013, the Supreme Court granted leave to appeal in Fearon on the issue of the cell phone search. [ 35 ] The defendant Noël's motion, however, presents a particularity that should be examined first. The cell phone is not the property of Simon Noël. It is the property of Lamirande-Bilodeau.

It was at the time of Lamirande-Bilodeau's arrest that the cell phone was first seized and then examined by Officer Thomas-Olivier Davis. [ 36 ] This raises the preliminary issue of Simon Noël's interest in contesting the search of Lamirande-Bilodeau's cell phone. It was in fact the subject of a formal argument by the prosecution. To resolve this issue, we must determine whether the defendant Noël can claim a reasonable expectation of privacy with respect to the seized cell phone and its contents. [ 37 ] In Edwards , [3] the Supreme Court points out that

section 8 of the Charter of Rights and Freedoms protects people, not places. More specifically,

section 8 protects a reasonable expectation of privacy. [ 38 ] This reasonable expectation of privacy depends directly on the facts and circumstances of each case. [ 39 ] To determine the level of expectation of privacy and thus ensure that the conduct of the agents of the state did not violate this expectation, the circumstances of the case must be analyzed as a whole. [ 40 ] In Edwards , the Supreme Court established that the factors to be considered may include, but are not restricted to, the presence of the accused at the time of the search, the possession or control of the property or place searched, their ownership, the historical use of the property or items, the ability to regulate access to the place, the existence of a subjective expectation of privacy, and the objective reasonableness of the expectation. [4] [ 41 ] On this subject, authors Béliveau and Vauclair [5] wrote: [ translation ] … and the Supreme Court, in Edwards , Tessling and Patrick , set out a non-exhaustive set of circumstances which are relevant to an analysis and which can be summarized as follows:

(1) Was the person concerned present at the time of the search?

(2) Did the person concerned have possession or control of the object or the place of the search? Could he regulate access to the place, including the right to receive or exclude others?

(3) To whom did the property or place belong? Did the person concerned have a direct interest in the seized item? 2385

(4) What is the historical use of the seized item. Does the nature or subject matter of the evidence gathered reveal private information?

(5) Did the person concerned have a subjective expectation of privacy?

(6) Considering the following elements, did the person concerned have an objectively reasonable expectation of privacy?

a) Did the place where the search occurred and, if it was private property, the intrusion of the state have an impact on the analysis of the right to privacy?

b) Was the information or item in public view?

c) Had the information or the item been abandoned?

d) Did the information or item expose any intimate details of the lifestyle of the person concerned, or information of a biographical nature?

e) Was the information already in the hands of third parties and, if so, was it subject to a duty of confidentiality?

f) Did the police technique infringe the right to privacy?

g) Was the search or surveillance technique itself objectively invasive or unreasonable and, if so, what was its impact on the right to privacy? [ 42 ] This text is reproduced in its entirety by the Court of Appeal of Quebec in Gignac . [6] [ 43 ] Applying these different criteria to the assessment of the applicant's expectation of privacy, in the particular context of a cell phone belonging to a third party, leads us to the following observations: 1. The owner of the cell phone is Ian Lamirande-Bilodeau. 2. It is Ian Lamirande-Bilodeau who was present at the scene and not the applicant. 3.

Lamirande-Bilodeau had physical control of the cell phone. Moreover, if anyone could have given prior authorization to search the cell phone, it would have been Ian Lamirande-Bilodeau and not Simon Noël. 4. Access to the cell phone was also controlled by Ian Lamirande-Bilodeau. The cell phone in question received messages and calls that are intended for him and it is he who controlled access to the different functions of the cell phone. It should be noted in this regard that Lamirande-Bilodeau had not set any password that would have blocked access to the messages he saved on the cell phone. 5.

It is Lamirande-Bilodeau who controlled what was done with a message after it was received. He was the only one who could decide after each message whether it should be saved or deleted. 6. For all the messages sent and received on the cell phone, Lamirande-Bilodeau was either the sender or the recipient. 7. Officer Davis was searching for elements related to the trafficking that he had just observed. The purpose of the search was to ascertain the extent of the trafficking and the methods used.

In addition, Davis did not have to break any access code and his search occurred in the hours following the arrest of Lamirande-Bilodeau and the seizure of his cell phone. [ 44 ] The conclusion that must be drawn is that the person who had an expectation of privacy in the seized cell phone is Ian Lamirande-Bilodeau, not Simon Noël. Ian Lamirande-Bilodeau's cell phone contained an abundance of information related to his own private life. Naturally, this information concerned third parties.

However, it is Ian Lamirande-Bilodeau who had control of the cell phone and access to it and who could protect the information it contained. It is he who had an expectation of privacy in the cell phone and its general contents. [ 45 ] The defendant Noël also argued that he had a specific expectation of privacy in the messages that he had sent to Lamirande- Bilodeau, regardless of who had ownership of the cell phone. [ 46 ] The defendant invokes the Supreme Court ruling in TELUS. [7] I do not believe that decision applies here.

In TELUS , the appellant, the TELUS Company, was a service provider that electronically copied all the messages sent and received by its subscribers. A warrant was issued requiring TELUS to produce all messages sent or received over a two-week period. According to TELUS, the prospective acquisition constituted an interception of private communications under

Part VI of the Criminal Code . [ 47 ] The appeal before the Supreme Court therefore concerned the prospective production of future text messages from a service provider’s computer. In TELUS , the Supreme Court interpreted the word "intercept". The Supreme Court decided that the private communication that was the subject of the warrant was acquired in the course of the communication process.

This process, according to the Supreme Court, encompasses all activities of the service provider. [ 48 ] The present case differs from TELUS , which concerned the operations of the service provider transmitting messages from person A to person B. That is not the case here. Moreover, the messages already saved when Lamirande-Bilodeau's cell phone was seized were no longer ongoing communications.

The transmission process had been completed. [ 49 ] Getting back to the expectation of privacy in the sent and saved messages stored in the cell phone of a third party, in this case Lamirande-Bilodeau, the Court, considering the aforementioned elements, does not believe that Simon Noël's expectation of privacy was violated. The sender of a text message can obviously expect that the message will remain private and be read only by its recipient.

However, it is difficult to give Simon Noël a right arising from an expectation of privacy: he could not decide whether a message should be deleted or saved, or whether access to the message should be password-protected. In short, he has no control over the privacy of the messages.

[50] For this reason alone, the Court would dismiss the defendant's motion. [51] I would add that even if the Court had concluded that Simon Noël's expectation of privacy had been violated, which is not thecase here, I would have still admitted the seized evidence. [52] When Officer Davis searched Lamirande-Bilodeau's cell phone it was, according him, to search for evidence related to histrafficking activities. The search, well founded a priori, led to the acquisition of Simon Noël's text messages and the discovery by OfficerDavis of an ongoing transaction for which he had just arrested Lamirande-Bilodeau.

It appears that the search he conducted was in factrelated to Lamirande-Bilodeau's arrest and was therefore legal. [53] I would also add that, concerning Officer Davis's participation in a conversation with Simon Noël, the Superior Court ofQuebec[8] said: [translation] [29] Canadian courts also recognize that the participation of an agent of the state in a conversation from the mobile phone of a recipientin custody does not constitute an unlawful electronic interception of the telephone conversation (R. v. McQueen, (1975) (AB CA), 25 C.C.C. (2d) 262 (C.A.Alb.) – R. v.

Perri, 2007 ABPC 229 , 2007 A.B.P.C. 229 (C.P.Alb.), since the peaceofficer is not intervening between the point of origin of the call and its destination to acquire the content of the conversation. [30] Similarly, the fact that a police officer acts in such a way as to cause the initiators of such calls to believe that he is actually theintended recipient of the calls is also not a cause to exclude the evidence so obtained. Although misleading, such conduct does notinfringe the accused's rights (R. v. Caster, 2001 BCCA 633 , 159 C.C.C. (3d) 404 (C. A. C. B.) and R. v.

Ramsum, 2003 ABQB45 , 2003 A.B.Q.B. 45: … [54] All these elements, and the fact that Officer Davis did not break any code, lead to the conclusion that he acted in good faith. [55] Finally, the physical evidence gathered led to the seizure of a quantity of drugs in the possession of Simon Noël. This evidenceis very reliable and essential to the prosecution's case. An examination of all these elements would have militated in favour of admittingthe evidence gathered, as it does not bring our system of justice into disrepute.

FOR THESE REASONS, THE COURT: DISMISSES the motion to exclude evidence. __________________________________ PIERRE SIMARD J.C.Q. Me Marie-Josée Hamelin-Gagnon director of criminal and penal prosecutions Me François Lévesque for the defence