R. v. Soper, 2023 BCPC 120

Citation: R. v. Soper 2023 BCPC 120 Date: 20230530 File No: 246851-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REX v. MATTHEW SIDNEY SOPER RULING ON VOIR DIRE #1 OF THE HONOURABLE JUDGE JETTÉ Counsel for the Crown: S. Bertrand Counsel for the Defendant: A. Abdulmalik Place of Hearing: Surrey , B.C.

Date of Hearing: 28 April, 3-5 May 2023Date of Judgment: May 30, 2023 Introduction [1] Matthew Soper is charged in an 11 count information with a series of property offences, including residential break and enters,theft, possession of stolen property and mischief. These allegations date back to October and November of 2020. [2] The police investigation included a tracking warrant issued pursuant to s. 492.1(2) of the Criminal Code. That warrant - issuedon 12 November 2020 – authorized location tracking of Mr. Soper’s cell phone.

Police employed that tracking information over severalhours on 1 December 2020 to locate and observe a vehicle that they believed was being operated by Mr. Soper. That surveillance endedwith Mr. Soper’s arrest at around noon that day. Police seized Mr. Soper’s cell phone incident to that arrest and obtained a warrant tosearch the phone. The phone was forensically examined and the data was downloaded; the Crown seeks to tender that evidence here. [3] Counsel for Mr. Soper has filed a Charter notice. He asserts that with respect to the tracking warrant, police lacked reasonableand probable grounds to target Mr.

Soper’s phone, with the result that Mr. Soper’s

section 8 right to be secure from unreasonable searchand seizure was violated. He has not challenged the warrant to search the phone itself. [4] Counsel submits that police were only able to track movement of the target vehicle and Mr. Soper himself because of the cellphone tracking data. He seeks a remedy excluding that data and related surveillance from the grounds employed by police to arrest Mr.Soper, and submits that without that, the arrest was unlawful, as was the seizure of the phone incident to that arrest.

Finally, counselseeks an order under s. 24(2) of the Charter excluding the phone and its contents. [5] After considering the Charter notice and submissions of counsel, I declared a voir dire, and allowed Mr. Soper’s application tocross-examine the affiant who prepared the Information to Obtain (“ITO”) filed in support of the tracking warrant application. I heardfrom that witness, as well as several officers who were engaged in police operations on 1 December 2020 up to and including the arrestof Mr. Soper.

That evidence, together with evidence from a civilian analyst who testified with respect to the data downloaded from Mr.Soper’s phone, was relevant to my review of grounds to make that arrest and the s. 24(2) issue should it arise.

The Attack on the Tracking Warrant [6] The authority to issue a warrant to track a person’s movement via a cell phone is found in s. 492.1(2) of the Criminal Code: A justice or judge who is satisfied by information on oath that there are reasonable grounds to believe that an offence has been or will becommitted under this or any other Act of Parliament and that tracking an individual’s movement by identifying the location of a thingthat is usually carried or worn by the individual will assist in the investigation of the offence may issue a warrant authorizing a peaceofficer or a public officer to obtain that tracking data by means of a tracking device. [7] This standard is higher than is required for a warrant to track a thing, including a vehicle in s. 492.1(1) of the Code; in that case,the issuing justice need only be satisfied that there are reasonable grounds to suspect that an offence has been committed and tracking ofthe thing will assist in the investigation of the offence.

A. Test on Review [8] A warrant is presumptively valid once issued. The test where an accused applies under s. 8 of the Charter to challenge a searchwarrant is set out in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421 at paragraph 68: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere.

In this process, the existence of fraud, non-disclosure, misleading evidence and newevidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to beany basis for the decision of the authorizing judge. [9] The term “amplified on review” was discussed most recently by our Court of Appeal in R. v.

Fredrickson, 2018 BCCA 2 at para.31: Garofoli refers to the record "as amplified on review." The record before the reviewing judge is different than that before the authorizingjustice as a result of the submissions of counsel and, where leave has been granted, cross examination of the affiant. In the amplificationprocess, the reviewing judge is to disregard or exclude erroneous information in an affidavit and, within limits, consider omittedevidence that should have been included.

Amplification evidence may correct minor, good faith errors of the police, not deliberateattempts to mislead: Araujo at paras. 58-59; Wilson at para. 68; Sadikov at para. 85. A failure to make full and frank disclosure does not,without more, invalidate a warrant. The reviewing judge must still assess whether the warrant could have issued on the basis ofinformation which had not been impugned: Wilson at para. 47; Canada (Procureur général) c.

Bisson, (SCC), [1994] 3S.C.R. 1097 (S.C.C.) at 1098. [10] Also in Fredrickson, supra, the court commented at paragraph 29 on the potential import of cross-examination, as well as itslimits: …cross examination that can show only that some of the information relied on by the affiant is false will not likely be useful unless aninference can be made that the affiant knew or ought to have knowns that the information was false…

[ 11 ] The reviewing judge must consider the “totality of the circumstances” when deciding whether the record, as amplified, disclosed reasonable and probable grounds. The information must be examined as a whole rather than in piecemeal fashion: R. v.

Whittaker , 2008 BCCA 174 at para. 41 . [ 12 ] If the reviewing judge finds on the whole of the evidence set out in the ITO that there is no longer any basis upon which the pre- conditions for the granting of the warrant can be said to exist, the trial judge is required to find that the search or seizure was unlawful, and contravened s. 8 of the Charter : Garofoli , supra , at para. 67 . B. The ITO [ 13 ] Constable Even Sherriffs was the tracking warrant affiant. He prepared and swore an Information to Obtain dated 12 November 2020.

In that document he described a break and enter and theft of a 2018 Jaguar at an address in Delta on 6 October 2020. CCTV footage captured two individuals exit a vehicle and enter the garage at that house, then one entering the Jaguar. Both vehicles were driven away from the house. [ 14 ] The ITO then moves on to a second break and enter investigation on 8 October 2020 at a residence some 500 metres away from the first. Once again, CCTV captured two individuals, referred to as Male 1 and Male 2.

The affiant deposed that he recognized Male 2 to be Anthony Kalt. [ 15 ] The Jaguar stolen on the 6 th of October was recovered a few hours later. Mr. Soper became a suspect when police forensic identification officers lifted a print from the Jaguar. I will come back to that issue in more detail in a moment, but the affiant deposed that the lift was identified to Mr. Soper. [ 16 ] The police viewed an open source Facebook account maintained by Mr. Kalt. The affiant deposed that he recognized a recent photograph of Mr. Soper with Mr. Kalt that was posted to that account. His identification of Mr.

Soper was aided in part by photographs posted to a Facebook account in the name of Matt S.J. Soper and prior police contact with Soper; he compared the photo on the Soper account to the photo of Soper on Kalt’s account and found them to be one and the same. The affiant was able to identify a phone number linked to Mr. Soper; that number was targeted in the tracking warrant. [ 17 ] The affiant asserted a belief that Mr.

Soper was Male 1 in the 8 October CCTV, and that “Soper and Kalt are actively working together targeting residential dwellings in order to obtain keys for vehicles, which they steal”: ITO para. 23(c). Cross-examination on the ITO [ 18 ] I granted leave to cross-examine Constable Sheriffs on two aspects of the ITO: (1) his assertion that he was able to recognize Kalt as Male 2 at the 8 October break-in, and Soper in photographs posted to the two Facebook accounts; and (2) the fingerprint lift taken from the Jaguar related to the 6 October break-in. i.

The Recognition Issue [ 19 ] In paragraph 17 of the ITO, the affiant deposed that he was able to recognize Kalt because he had investigated him for Criminal Code offences in September 2019. The ITO does not provide details of that earlier investigation, or how it was that the affiant was able to identify Kalt in September of 2019. The affiant was cross-examined on this issue by counsel for Mr. Soper. That cross-examination established that the affiant had conducted surveillance of Mr. Kalt on approximately three occasions, and had viewed photographs of him as part of that investigation.

I am satisfied that, as amplified on review, there is some evidence at least that the affiant was in a position to identify Mr. Kalt as Male 1 on 8 October, and that the issuing justice could have attached some weight to that opinion. [ 20 ] The recognition evidence with respect to Mr. Soper is premised on the affiant’s review of photographs posted to Mr. Kalt’s Facebook account, and the similarity between those photographs and photographs of a male posted to a Facebook account with the user name Matt S.J. Soper. Cross-examination revealed that the affiant had been part of a police investigation of Mr.

Soper in 2018, and that he had conducted surveillance of Mr. Soper on one or two occasions during that operation. The affiant had also viewed booking and target photos of Mr. Soper at that time. I am satisfied that there was some evidence in the ITO supporting the affiant’s opinion that Mr. Soper’s photograph appeared on Mr. Kalt’s Facebook page. I find that, as amplified on review, the issuing justice could have attached some weight to the affiant’s opinion that he was able to recognize Mr. Soper in the Facebook photos.

The Fingerprint [ 21 ] As noted above, the Jaguar was located abandoned later on the same day as the break and enter and theft on the 6 th of October. At paragraph 21 of the ITO, the affiant deposed that he read a report authored by Constable Geddert, who conducted a forensic examination of the Jaguar about a week later. The affiant then deposed to the following: a) …Constable Geddert conducted a forensic examination of the interior of the black jaguar. Cst. Geddert located a surface within the vehicle that contained a fingerprint . Cst.

Geddert lifted the fingerprint and compared the fingerprint with those on AFIS (emphasis added);

b) On October 14, 2020, Cst. Geddert received an associated fingerprint to that location in the recovered black jaguar, which belonged to Matthew Soper. [ 22 ] At paragraph 10(

c) of the ITO, the affiant explained that AFIS is a biometric identification methodology that uses digital imaging technology to obtain, store and analyze fingerprint data amongst North American law enforcement agencies. [ 23 ] Counsel for Mr. Soper cross-examined Cst. Sheriffs on the contents of the Geddert report. That report was marked as an exhibit on the voir dire. In her report, Cst. Geddert said that she identified three finger impressions on the exterior of the driver’s side door of the Jaguar. She wrote that “(N)o impressions were found in the interior of the car .” (emphasis added).

[24] Cst. Geddert submitted the three impressions to AFIS and received a hit for Matthew Soper on the print she labelled R2, whichhad been located on the exterior of the driver’s side door. This information falls under a heading which reads “Preliminary AssessmentReport” followed by this caution: A Preliminary Association is being reported to you as an investigational aid. AFIS has reported the following fingerprints(

s) found onthis file MAY belong to the following….(emphasis in original) [25] Cst. Sheriffs was cross-examined on the discrepancy between his ITO, where he reported a fingerprint inside the vehicle, andGeddert’s report, which says the opposite. He testified that he had read the report a couple of times and attempted to familiarize himselfwith its contents; he agreed that it was only a few pages long. He agreed that this portion of the ITO is not accurate. When questionedfurther by Crown counsel, Cst.

Sheriff’s testified that he noticed this error for the first time just before giving evidence on the voir dire.When asked why it was there, he said he was not sure, but it may have been an instance of inattentiveness and a lack of attention todetail. He said it was not intentional. [26] Cst. Sheriffs was also cross-examined with respect to the preliminary nature of this assessment, in particular the qualifier that thefingerprint “may” be Soper’s.

He agreed that this was not a definite identification by a fingerprint examiner, and said he understood thatthe emphasized word ‘may’ in the report meant that the print might or might not be from Soper. Crown counsel also asked Cst. Sheriffsabout this aspect of his ITO and the Geddert report. She directed his attention to the last part of the preliminary assessment, whichexplained that the information might be used to support grounds for arrest, grounds to support judicial authorizations, and as intelligence.He was not asked anything further about that aspect of the report.

Crown counsel did not ask him why the ITO reported a definitiveidentification of Soper’s fingerprint on the Jaguar whereas the report did no such thing. [27] The critical issue here is whether what is left of the ITO, as amplified by the testimony of Cst. Sheriffs, continues to providereasonable and probable grounds to issue a warrant to track Mr. Soper’s phone. In particular, is there in what remains sufficient reliableinformation to support the warrant? (R. v. Araujo, [2000] 2 S.C.R. 1421 at paras. 51-53; R. v. Monroe, (BC CA),[1997] B.C.J. No. 1002 at para. 24). [28] Although I cannot find that Cst.

Sherriffs intentionally inserted into the ITO false and misleading evidence, I do find that theauthorizing judge was badly misled as to the state of the fingerprint evidence. I also find that those mistakes, mischaracterizations, andomissions were with respect to matters that were directly relevant to the central issues to be determined by the authorizing judge whenthat application was made. [29] This case calls to mind concerns expressed by Southin J.A. in R. v.

Dellapenna, 1995 CarswellBC 1236, where the ITO affiant,although not intending to mislead, demonstrated a significant lack of care in setting out the evidence before the issuing justice: [36] The learned judge found that the informant did not intentionally mislead. [37] By that, I take it the learned judge meant that the informant did not swear this information saying to himself “I am going to tellthe justice of the peace a pack of lies.” But the informant plainly did not say to himself, “Have I got this right?

Have I correctly set outwhat I’ve done, what I’ve seen, what I’ve been told, in a manner that does not give a false impression?” [30] Here, I find that Cst. Sheriffs did not ask himself, “Have I got this right?

Have I correctly set out what I’ve done, what I’ve seen,what I’ve been told, in a manner that does not give a false impression?” This failure goes to the heart of his obligation to make full, fair,and frank disclosure at an ex parte application for authority to track a cell phone, and thereby track the movements of the individualhimself. [31] In this case, the evidence in the ITO has been amplified on review. While there is some evidence that Mr. Soper’s fingerprintmay be associated to the Jaguar, that evidence is preliminary and not definitive.

The location of the fingerprint – outside rather thaninside the vehicle – is of some import, but it is not as compelling as what appears in the ITO. More significant however is thepreliminary nature of the AFIS hit. Without the fingerprint, the Facebook investigation that turned up an association between Kalt andSoper loses much of its relevance.

The affiant incorporated his flawed understanding of the Geddert report into his stated belief that Soper was Male 1 on the 8th of October, and that Kalt and Soper were working together on these break-ins. [32] I find that the evidence which purports to justify a tracking warrant for Mr. Soper’s warrant as amplified on review comes downto this:

(1) Mr. Soper’s fingerprint might have been located on the outside of a stolen vehicle but that has not been confirmed one way orthe other;

(2) There is some evidence that Mr. Kalt participated in a similar offence nearby some two days after that vehicle was stolen;and (3) there is evidence that Mr. Kalt and Mr. Soper know each other and may be friends. [33] Having considered this evidence as amplified on review, I have come to the conclusion that the tracking warrant could not have issued.

While the evidence in the ITO does establish that offences were committed on the 6th and 8th of October 2020 respectively, theissuing justice could not have found on the amplified record that there were reasonable and probable grounds to believe that tracking Mr.Soper’s cell phone would assist with the investigation of those offences. [34] It follows that I must find that Mr. Soper’s s. 8 Charter rights have been breached. Remedy [35] The circumstances here are unusual. In fact, counsel was unable to locate a case like this one, where a reviewing court has foundthat a tracking warrant was issued in breach of

section 8 of the Charter, and subsequent police investigation relied on tracking dataobtained under the authority of that warrant to locate and arrest a surveillance target. [36] Counsel for Mr. Soper submits that in reviewing the grounds to arrest Mr. Soper, I should excise surveillance evidence directlylinked to the tracking data in much the same way as I might excise unlawfully obtained evidence from an ITO filed in support of awarrant application. Counsel further submits that I must go on to determine whether the remaining grounds for arrest articulated by

police are objectively reasonable. If I should find that they were not, it follows that the warrantless arrest of Mr. Soper breached his s. 8Charter rights, and the search incident to that arrest - which produced his cell phone -was also unlawful: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241. a. Review of the Evidence Leading to the Arrest of Mr. Soper [37] I heard from several witnesses who were involved in surveillance on the 1st of December 2020. The most important of thosewitnesses was Sgt. Robert Dalphond, who was viewing the tracking data and directing team members to a series of locations in the leadup to Mr.

Soper’s arrest. The decision to arrest Mr. Soper was made by Sgt. Dalphond; he gave that direction to team members whoexecuted the arrest. [38] I will provide a brief synopsis of the investigation that ended with Mr. Soper’s arrest. [39] Sgt. Dalphond was in charge of a Surrey RCMP unit called the Property Crime Target Team (“PCTT”). On the morning of 1December 2020, Mr. Soper was the main target of ongoing surveillance. Police believed that Mr. Soper was a prolific property offenderin the Surrey area. The tracking data from the November 2020 warrant was employed during this investigation. [40] Sgt.

Dalphond’s shift started at 0400 hours on 1 December 2020. His 8-person team took over for another unit, which had been working overnight. He communicated with his team via a secure radio channel. Later on, the morning of the 1st of December, a unit fromthe Integrated Municipal Provincial Auto Crime Team (“IMPACT”) joined the surveillance at the request of Sgt. Dalphond. The twoteams together numbered some 12-15 officers. [41] When he started his shift, Sgt. Dalphond was briefed by the outgoing unit supervisor; he was told that the unit had lostsurveillance of Mr.

Soper at around the same time as, and not far from, the location of a residential break and enter which resulted in thetheft of a dark blue newer model Ford Explorer. The report included the plate number of the Explorer. [42] Sgt. Dalphond had an iPad, which he used to track the movements of Mr. Soper’s cell phone. Every 15 minutes he received a“ping” which produced tracking data for the phone. The ping produced an address or general location on a map; the radius of the pingwas depicted as a circle around the address. It was understood that the phone would be somewhere within that radius.

The tracking dataobtained by Sgt. Dalphond on 1 December was produced as a spreadsheet for court and was marked as an exhibit at the voir dire. [43] What followed was a series of pings which drew the two surveillance teams to a variety of locations in the lower mainland,including Coquitlam, Port Coquitlam, Belcarra, Anmore, Port Moody, and Surrey. Team members, including Sgt. Dalphond himself,observed what they believed to be the Explorer on a number of occasions over the course of the morning and into the afternoon. Severaltimes the Explorer was identified by plate number or partial plate number.

On two occasions, team members reported they had positivelyidentified Mr. Soper as the driver of the Explorer. [44] Sgt. Dalphond first engaged with the Explorer after receiving a ping for the area of Kingston and David in Coquitlam; he drove tothat location. At 0625, he saw the Explorer, which was parked on Kingston. He was able to confirm the plate number but not the identityof the occupants. The vehicle went mobile shortly after that and was lost to surveillance. The tracking data then took Sgt. Dalphond to astreet in Belcarra. He saw the Explorer on a street and drove past it.

By the time he was able to come back around the Explorer wasgone; minutes later a break and enter and theft of a Kia Niro motor vehicle was reported with respect to a residence on that street. TheExplorer and the Niro were subsequently observed together in surveillance at a number of locations. At one point, Sgt. Dalphondobserved the driver of the Explorer. He testified that the driver resembled Mr. Soper but he could not make a positive identification. [45] Tracking data sent Cpl. Kajan to an area behind Orange Theory Fitness in Willowbrook Mall. He saw the Explorer, which wasparked and unoccupied.

He retrieved CCTV from a nearby liquor store; it depicted three males emerging from the area of the Explorerand walking away. He took photo stills of the males and distributed them to the team. [46] The tracking data then took the team to the area of a Days Inn in Langley. Mr. Soper and another suspect were identified outsidethe Days Inn; Sgt. Dalphond gave the order to arrest the two of them at separate locations near the hotel. When Mr. Soper was arrestedhe was holding his cell phone, which was seized incidental to that arrest. [47] Sgt. Dalphond testified that he gave the order to arrest Mr.

Soper because he had reasonable and probable grounds to believe thathe had committed the offence of possession of stolen property with respect to the Explorer, and that he was also involved in the breakand enter and theft at the residence in Belcarra. Sgt. Dalphond testified that he formed grounds to believe that Mr. Soper was involved inthe break-in and theft of the Explorer when he located the Explorer at Kingston and David in Coquitlam at 0625 and was able to confirmthe plate number.

In cross-examination, he agreed that his grounds came from pings received over time and subsequent surveillance inthose areas where the Explorer and/or Mr. Soper were identified by team members. He also agreed that on most occasions he and theteam were guided to Mr. Soper’s location by the pings. [48] The two identifications of Mr. Soper operating the Explorer during surveillance were reported by Sgt. Bartelman and ConstableCerbyk respectively. I will refer to this evidence while also observing that Sgt. Daphond testified that he had already formed grounds toarrest Mr.

Soper for the Langley break and enter and theft at 0625 in Coquitlam, some two hours before the events reported by these twoofficers. [49] In the aftermath of the Belcarra surveillance, Bartelman and Cerbyk reported separate observations of the Explorer when it wasstopped in traffic near the Coquitlam Centre Mall. Both testified that they were able to make a positive identification of Mr. Soper as thedriver. Although weaknesses in those identifications were made apparent during cross-examination, these would not have been known toSgt. Dalphond at the time.

I also find that the only reason these officers were in the area at all was the tracking data, which linked theExplorer to Belcarra. b. Ruling on the Excision Issue

[50] Crown counsel submits that the data from the tracking warrant falls into a separate category from direct observations made bypolice during surveillance. She argues that the case of R. v. Fliss, 2002 SCC 16 applies by analogy. In that case, wire intercepts wereexcluded, but the undercover officer who spoke directly with the target was allowed to give viva voce evidence of his recollection oftheir conversation. In my view, any analogy with the facts of this case is weak at best. More importantly, I find that here the trackingdata and subsequent police surveillance of the Explorer and Mr.

Soper are hopelessly intertwined. [51] Having considered the evidence, it is clear to me that this surveillance team would not have had any idea where Mr. Soper waslocated but for the tracking data. [52] Sgt. Dalphond testified that he formed grounds to arrest Mr. Soper as early as 0625 hours when he identified the stolen Explorerparked in Coquitlam. That identification was of course derivative of the tracking data. Subsequent identifications of Mr.

Soper and/or theExplorer were similarly the product of tracking data that put officers directly into the radius identified by the tracker, and from there tosurveillance away from those targeted locations. It is my view that all of the surveillance conducted by police in this case would not havehappened at all without the tracking data. The clearest example of that is the observation at 0625 of a vehicle in Coquitlam that wasstolen from a residence in Langley hours before. Without the tracking data, Sgt.

Dalphond would not have been in Coquitlam at all. [53] Having found that the warrant to track the movements of Mr. Soper’s cell phone could not have issued, I have come to theconclusion that the observations made by police -from the first positive sighting of the Explorer at 0625 hours through to the decision toorder Mr. Soper’s arrest – was directly derivative of the unlawfully obtained tracking warrant and must be excised for the purpose of thisreview. Without that evidence, I find that Sgt.

Delphond’s subjective belief that he had reasonable and probable grounds to arrest Mr.Soper for the Langley and Belcarra offences was not objectively reasonable. It follows that the arrest was unlawful. The only legalauthority to search Mr. Soper and seize his phone was the power to search incident to a lawful arrest. As that arrest was not lawful, thatsearch and seizure violated Mr. Soper’s s. 8 Charter rights: R. v. Stillman, (SCC), [1997] 1 S.C.R. 607at para. 27; R. v.Caslake, (SCC), [1998] 1 S.C.R. 51 at para. 13. c. Section 24(2) [54] The defence applies to exclude the cell phone seized from Mr.

Soper at point of arrest. Data from that phone was seized pursuantto a warrant issued after the phone was seized. Crown called a civilian employee of the RCMP who took the court through that data,which was downloaded using Cellebrite software. That evidence persuades me that the data on the phone is directly relevant to theallegations before the court. [55] Although the data itself is the product of a separate judicial authorization, I accept the obvious proposition that without thephone, that evidence would not exist.

For the purpose of this analysis, I find that the cell phone and contents were obtained as a result ofthe warrantless arrest of Mr. Soper and the seizure of his phone as an incident to that arrest. All of it then was obtained in a manner thatbreached the Charter for the purposes of the analysis under s. 24(2). [56] Having found a sufficient nexus between the tracking warrant data employed by police to locate, arrest and search Mr. Soper -and that the cell phone seized as an incident to that arrest was obtained in a manner that infringed or denied Mr.

Soper’s Charter rights -I must go on to apply s. 24(2) and the factors set out in R. v. Grant, 2009 SCC 32 and answer this question: would admission of the cellphone evidence bring the administration of justice into disrepute? [57] The well-known Grant factors require a consideration of the following: 1) The seriousness of the Charter infringing state conduct ; 2) The impact of the breach on the Charter protected interests of the accused; and 3) Society’s interest in the adjudication of the case on its merits. R. v.

Grant, supra, at para. 71. [58] Section 24(2) looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by theadmission of the evidence: The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying theCharter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. R. v. Grant, supra, at para. 68. [59] The focus is societal and aimed at systemic concerns, not punishing police.

The court must look at the broad impact of admissionof the evidence on the long-term repute of the justice system: R. v. Grant, supra, at para. 70. [60] My task is to weigh and balance these three factors and determine whether, on a balance of probabilities, admitting the evidencewould bring the administrative of justice into disrepute in the long term, considered from the perspective of a reasonable person. [61] I will deal first with my assessment of the seriousness of the breach.

I have found that Constable Sherriffs was reckless when hetransferred the forensic fingerprint report into his ITO in support of his application for a tracking warrant, and that his mistake misled theissuing justice with respect to the inferences which might be drawn from that evidence, and the strength of the grounds advanced insupport of the application for a warrant. While I did not find that Cst.

Sherriffs set out intentionally to mislead the issuing justice or thathe was acting in bad faith, his inattention to detail also means that I cannot find that he was acting in good faith when he presented hisITO to the issuing justice. This lands the police conduct somewhere in the middle range of seriousness and tips the balance towardsexclusion of the evidence.

[ 62 ] I have also taken into account another aspect of police conduct at this first stage of the Grant analysis, the actions of Sgt. Dalphond. It was of course his decision to order Mr. Soper’s arrest. [ 63 ] Sgt. Dalphod was relying on a presumptively valid tracking warrant to locate Mr. Soper’s phone – with the reasonable expectation that by doing so he would be locating Mr. Soper as well – to further his investigation of property offences committed earlier that same morning. He played no role in obtaining the tracking warrant, the application for which arose from offences committed some two months earlier.

I find that Sgt. Dalphond and his team were acting in good faith throughout; indeed, their investigative work was professional and impressive. [ 64 ] It is equally clear that Sgt. Dalphond subjectively believed he had sufficient grounds to order the arrest of Mr. Soper. But for the problems related to the legal underpinnings for the tracking warrant, I would have found without hesitation that those grounds were objectively reasonable. As it developed, the legal foundation for Sgt.

Dalphond’s work was undermined by a fatal flaw in an ITO that was not of his making, and was unknown to him as the operation was unfolding. [ 65 ] I will turn now to the second Grant factor, the impact of the breach on the Charter protected interests of the accused. [ 66 ] Police investigative techniques involving invasions of privacy are assessed on a sliding scale that is itself related to an individual’s reasonable expectation of privacy in any given situation. It is understood that taking a sample of bodily substances for DNA analysis, body cavity searches and strip searches sit at the top of that continuum.

Searches of a home are more personally invasive than the search of a commercial building or a car. Listening to and recording a private communication is more intrusive than obtaining a production order for mobile phone records. [ 67 ] So where might location information from the tracking of a cell phone fall on that privacy scale? This issue came up recently in R. v. Zacharias , 2023 BCSC 270 . In that case, Justice Williams found that police investigators had committed a number of Charter breaches.

One involved a warrant to track a cell phone; the court excised part of the ITO filed in support of the application and found the balance did not support issuance of the warrant, and that police surveillance linked to that warrant breached the applicant’s Charter rights. Although he did not rule on the admissibility of the surveillance evidence, Justice Williams considered the breach as part of his assessment of the overall seriousness of police conduct in the case.

The court found that the tracking warrant gave police the ability to follow the applicant wherever he went, and that although it did not permit police access to the contents of the phone itself, “the extent of the intrusion is significant and the seriousness of the breach is commensurately high.” Justice Williams found the impact on the applicant’s Charter protected rights was moderate to serious. [ 68 ] The tracking warrant in this case alerted police to Mr. Soper’s approximate geographic location, but it did not go any further than that. The tracking data did not reveal any of Mr.

Soper’s core biographical information, although I suppose a tool like this one can be employed to determine a person’s probable residential address or other locations frequented by a target on a regular basis. Here, the data was employed as an investigational aid to develop reasonable and probable grounds to make an arrest. [ 69 ] Overall, I find that a tracking warrant for a cell phone is less intrusive than many of the judicial authorizations I outlined earlier in these reasons.

Having said that, a cell phone tracker - which allows police to pinpoint the location of a target within a small geographical radius every fifteen minutes - is a powerful investigative tool that does have a significant impact on an individual’s reasonable expectation of privacy. [ 70 ] Given the lesser expectation of privacy engaged by a tracker warrant of this type, and because this investigative tool did not reveal the target’s core biographical information, I find that the impact on Mr. Soper’s Charter protected rights was moderate.

However, in this case that data was used to develop reasonable and probable grounds to arrest Mr. Soper, which is a more invasive investigative tool than the tracking warrant itself. Given that the arrest would not have happened without the tracking data, it is relevant to my assessment of the second Grant factor. I find that the totality of the circumstances here tip the balance toward exclusion of the evidence. [ 71 ] The third Grant factor requires a consideration of society’s interest in adjudicating the case on its merits. The cell phone and the data contained in the phone are both reliable evidence.

The evidence of the civilian RCMP analyst persuades me that the data will be of real assistance to the Crown. I am also satisfied that exclusion of that evidence would essentially gut the Crown’s case against Mr. Soper. This factor weighs strongly in favour of admitting the evidence. [ 72 ] The balancing that occurs after consideration of the three Grant factors is not a mathematical exercise.

Even if two of the three factors tip the scale toward exclusion of the evidence, my task is to weigh and balance all three factors and determine whether, on a balance of probabilities, admitting the evidence would bring the administrative of justice into disrepute in the long term, considered from the perspective of a reasonable person. [ 73 ] I have found that the affiant’s reckless drafting of the ITO misled the issuing justice. I found further that even after adding back into the ITO accurate information about the fingerprint, the warrant could not have issued.

While it is possible that the evidence as amplified on review might have satisfied the reasonable suspicion standard for the tracking of a motor vehicle, Parliament set a higher standard where a person is being tracked via an object – like a cell phone – which they will generally carry on their person. Accepting as I do that Sgt. Dalphond had no reason to doubt the validity of the tracking warrant, the fact is he would not have been able to complete his mission and order the arrest of Mr.

Soper without regular access to the tainted tracking data. [ 74 ] Having engaged in the balancing process, I have concluded that the first and second Grant factors are of critical importance in this case. The police were not acting in good faith when the justice was misled at the front end. The evidence in the ITO, when corrected on review, was insufficient to support the warrant. This flawed process – which effectively gave police the authority to track a target on a near continuous basis over large distances to acquire grounds to make an arrest - undermined all that followed.

I find that a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of this evidence would bring the administration of justice into disrepute. [ 75 ] The evidence the Crown seeks to tender is not admissible.

_____________________________ The Honourable Judge M. Jetté Provincial Court of British Columbia