Her Majesty the Queen - v. -, 2013 SKPC 152

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 152 Date: September 4, 2013 Information: 40302078 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jonathan Paul Meagher Appearing: S. Wolfe For the Crown G. Chovin For the Accused DECISION ON VOIR DIRE S. C. CARTER , J [ 1 ] The accused, Jonathan Paul Meagher, is charged with possession of marihuana for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act .

He is also charged with possession of the proceeds of crime, Canadian currency, contrary to s. 354 and 355 of the Criminal Code of Canada. These offences allegedly took place on March 27, 2012, in Prince Albert, Saskatchewan. The Crown’s case was called and heard in a voir dire on May 8, 2013, final arguments were made on June 25, 2013. FACTS [ 2 ] The facts in this case are that on March 27, 2012, at approximately 11:00 p.m., Constables Hryhorchuk and Jordan were stopped on 28 th Street East at a red light at the intersection of 28 th Street and 12 th Avenue East, in Prince Albert, Saskatchewan. The

police vehicle was in the westbound lane. Both officers observed a black SUV approaching the intersection from the west at a high rate of speed. As the SUV came to the intersection the light turned green and it continued through the green light at the same speed heading east on 28 th Street East. The officers did not activate the radar equipment, nor were they able to estimate how fast the SUV was travelling, except to say that it was in excess of the posted speed limit of 50 km/hr. Cst. Hryhorchuk was driving the police vehicle.

He turned it around and followed the SUV, speeding up to close the gap between the two vehicles. As they caught up with the SUV it drove onto the east side of the Carlton Park Apartments. At this point Cst. Hryhorchuk activated the police vehicle’s emergency lights. The SUV then drove into a parking spot and the engine was turned off. Cst. Hryhorchuk drove onto the parking lot and stopped behind the SUV. [ 3 ] Cst. Hryhorchuk got out of the police vehicle and walked to the driver’s side of the SUV. Cst. Jordan went to the passenger side. The accused was sitting in the driver’s seat of the SUV.

He produced a valid driver’s licence and told Cst. Hryhorchuk that the SUV belonged to him. Cst. Hryhorchuk asked the accused why he thought he had been “pulled over” and the accused said that he assumed it was because he had been texting while driving. [ 4 ] As this conversation was taking place, Cst. Hryhorchuk saw a clear plastic Ziploc baggie sticking out of the left front pocket of the bunnyhug (hoodie) that the accused was wearing. Cst. Hryhorchuk believed that it contained marihuana. He told the accused to get out of the vehicle and, once the accused had done so, arrested him for possession of marihuana.

The baggie did indeed contain marihuana, as did a plastic bag found in the front pocket of the pants that the accused was wearing. A search of the SUV, made with the consent of the accused, resulted in a further bag of marihuana being discovered between the passenger and driver’s seat. The total amount of marihuana seized at the investigation was 51.8 grams. After the search the accused was read his Charter rights and given a standard police warning. [ 5 ] When the accused was searched he was found to have two cell phones in his possession.

The subsequent search of the SUV revealed another cell phone found on the driver’s seat. This cell phone kept ringing, indicating that it had received text messages. Cst. Hryhorchuk saw that the text message on the screen showed a telephone number and the message itself said, “1 oz bro 240”. Cst. Hryhorchuk then “went through” all of the text messages looking for anything relating to trafficking and money. [ 6 ] While Cst. Hryhorchuk was occupied with the arrest of the accused and the searching of the SUV, Cst.

Jordan dealt with the accused’s passenger, who he arrested for possession of marihuana and then released on an appearance notice. [ 7 ] Back at the police station Cst. Jordan searched through the text messages on all three of the cell phones, showing some of them to Cst. Hryhorchuk, and later making photocopies of those he felt were relevant to the investigation. Cst. Jordan said that he did this to gather more evidence to further the investigation. No warrant was obtained for these searches. ISSUES 1. Was the accused lawfully detained in the parking lot? 2.

Were the searches of the cell phones truly incident to the accused’s arrest, or was his s. 8 Charter right violated? ANALYSIS 1. Was the accused lawfully detained in the parking lot? [ 8 ] It was the opinion of both constables that the SUV approaching them as they were stopped at the red light was travelling at a speed greater than the posted speed limit of 50 km/hr. The fact that neither was able to estimate how much faster is not fatal to the Crown’s case. [1] Having made that observation they had the authority to stop the SUV. [2] Unlike the situation in R. v.

Lux , [3] the constables in this case saw the SUV speeding and gave chase. The offence which they were initially investigating did not occur on a

private parking lot. It occurred on a public highway, thus, in my opinion, the accused was lawfully detained and later arrested in that parking lot. 2. Were the searches of the cell phones truly incident to the accused ’s arrest, or was his s. 8 Charter right violated? [ 9 ] There should be no doubt about the fact that the accused had a reasonable expectation of privacy in the information contained in his cell phone. The phones were searched without a warrant and were thus prima facie unreasonable in law.

The searches will remain unreasonable and thus unlawful unless the Crown can establish that the searches were authorized by law, that they were reasonable and that the manner in which the search was carried out was reasonable. [4] The Crown argues that all three of these criteria are met in this case, because the searches were made incident to the arrest of the accused. The defence’s position is that a warrant should have been obtained after Cst. Hryhorchuk read the text which appeared on the screen of the cell phone found on the driver’s seat of the SUV. [ 10 ] In R. v.

Caslake , [5] the Supreme Court of Canada considered and ruled upon what “incident” to arrest means as well as the limits or scope of the common law doctrine of searches incident to arrest. Lamer C.J., for the majority, held that such a search must be “truly incidental” to the arrest: [6] A search is incident to an arrest if the purpose of the search is “related” to the purpose of the arrest.

There are three main purposes for such a search, which are: (1) ensuring the safety of the police and public; (2) protecting evidence from destruction; and (3) the discovery of evidence which can be used at the arrestee’s trial. [7] [ 11 ] This third purpose is exactly what Cst. Jordan testified he was doing.

Although the Court was reluctant to set a temporal limit on the scope of a search incident to arrest, Lamer C.J. did state that “As a general rule, searches that are truly incidental to arrest will usually occur within a reasonable period of time after the arrest.” [8] [ 12 ] Cellular phones are no longer just portable phones. They are now powerful computers capable of receiving, holding, and distributing large amounts of data, both private and public. You can bank and pay your bills with them, search the world wide web and communicate with others via text, email, Facebook, My Space, et cetera.

You can still even make phone calls on them. In R. v. Morelli , [9] the Supreme Court established that there is a reasonable expectation of privacy in the information contained in people’s personal home computers, be they desktop or laptop. In R. v.

Cole , [10] the majority held that although there is a diminished expectation of privacy in a laptop computer issued to a person at work, there is nonetheless an expectation of privacy, and no law authorized the warrantless search of the work laptop at issue in that case. [ 13 ] In my view, there appears to be no difference between a modern cell phone and a desktop or laptop computer. The cell phones at issue in this case were the personal cell phones of the accused. He therefore had a reasonable expectation of privacy in the information contained in them.

In my view, apart from a cursory glance at the text message which appeared on the screen of the cell phone found on the driver’s seat of the SUV, any search required a warrant. [11] [ 14 ] However, my view of the law, which relies upon the decision in R. v. Polius , [12] does not accord with Justice Maher’s decision in R. v. Larose . [13] In that case, the accused had been arrested for possession of cocaine for the purpose of trafficking. He also had a cell phone in his possession at the time of his arrest.

The arrest took place at 2:30 a.m. and the cell phone was later searched, without warrant, at 10:00 p.m. that same day. A transcript was made of the recent messages on the cell phone. Justice Maher relied upon, and applied, the Nova Scotia Court of Appeal’s decision in R. v. Hiscoe , [14] in finding that the transcription of the recent messages on the cell phone was within the scope of the authority to search incidental to arrest. [15] I can find no real differences between the facts in either Larose or in the case at bar, thus I find myself bound to follow the decision in Larose .

That being the case, I find that the warrantless searches conducted in the case at bar were lawful, and that the accused’s s. 8 Charter right was not violated. [ 15 ] Dated at the City of Prince Albert, in the Province of Saskatchewan, this 4 th day of September, A.D. 2013. _____________________________________

S. C. Carter, J [1] R. v. Broda, 2001 SKQB 293, at para. 15. [2] The Traffic Safety Act, R.S.S. 2010, c. E-9.22, s. 199(1)(b). [3] R. v. Lux, 2012 SKCA 129. [4] R. v. Collins, [1987] S.C.R. 265. [5] R. v. Caslake, (SCC), [1998] 1 S.C.R. 51. [6] Ibid, page 63, at para. 17. [7] Ibid, para. 19. [8] Ibid, para. 24. [9] R. v. Morelli, 2010 SCC 8. [10] R. v. Cole, 2012 SCC 53. [11] R. v. Polius, 2009 Carswell Ont 4213; R. v. Manley, 2011 ONCA 128; and R. v. Fearon, 2013 ONCA 106. [12] R. v. Polius, supra. [13] R. v. Larose, 2013 SKQB 226 , 2013 S.J. No. 384. [14] R. v. Hiscoe, 2013 NSCA 48. [15] Ibid, para. 16.