Her Majesty the Queen - v. -, 2015 SKPC 29

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 029 Date: March 3, 2015 Information: 24507749 Location: Nipawin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Hailey Jones & Roger John Appearing: Trent Forsyth and David Fittes (student-at-law) For the Crown Rosanne Newman, Q.C. and Neil McPhee (student-at-law) For the Accused , Hailey Jones Loree Richardson For the Accused, Roger John CHARTER APPLICATION DECISION J. RYBCHUK , J INTRODUCTION [ 1 ] Two teenagers are sitting inside a car in a school parking lot.

A series of vehicles drive up to them, exchange something and then drive off. The police stop the car being driven by one of the teenagers, take away his cell phone and go through it. This case asks whether the police have the authority to do this.

[ 2 ] The co-accused, Hailey Jones and Roger John, are charged with: Count 1: Trafficking in a controlled substance, cannabis marihuana, contrary to s. 5(1) of the Controlled Drugs and Substances Act ; Count 2: Possessing a controlled substance, cannabis marihuana, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act ; and Count 3: Possession of Canadian currency not exceeding $5,000.00 knowing that it was obtained by the commission in Canada of an offence contrary to s. 354(1) (

a) and s. 355 (

b) of the Criminal Code of Canada. ISSUES [ 3 ] The three main issues to be determined in this application on a voir dire pursuant to the Canadian Charter of Rights and Freedoms [ Charter ] are as follows:

(1) Whether the police violated the accuseds’ s. 9 Charter right not to be arbitrarily detained when they pulled the vehicle over?

(2) Whether the police violated the accuseds’ s. 8 Charter right against unreasonable search and seizure when they seized and went through the cell phone? (

i) At the scene of arrest and police station (ii) Sending the phone away for analysis of its contents

(3) If there has been a Charter breach should the evidence be excluded? (

i) The seriousness of the Charter -infringing state conduct (ii) The impact of the breach on Charter -protected interests (iii) Society’s interest in adjudication on the merits ANALYSIS

(1) Whether the police violated the accuseds ’ s. 9 Charter right not to be arbitrarily detained when they pulled the vehicle over? [ 4 ]

Section 9 of the Charter provides that: 9 Everyone has the right not to be arbitrarily detained and imprisoned. [ 5 ] In order for police to be able to pull over and detain a vehicle they must have a statutory or common law power to do so. [ 6 ] A statutory power can be found in s. 209.1(1)(

b) of The Traffic Safety Act , c T-18.1 as follows: 209.1(1) A peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the police officer: ... (

b) is in the lawful execution of his or her duties and responsibilities .

(emphasis added) [7] Further, s. 36(2)(a)(ii) of The Police Act, 1990, c P-15.01 provides that: 36(2) ... a member [of the police service] has the power and responsibility to: (

a) perform all duties that are assigned to constables or police officers in relation to: ... (ii) the prevention of crime and offences against the laws in force in the municipality (emphasis added) [8] A common law duty “to provide such assistance as may be required in the circumstances” of a 911 call is afforded to policeofficers in the Supreme Court of Canada decision in R v Godoy, (SCC), [1999] 1 SCR 311, at paragraphs 16 and 22. [9] However, this police duty to investigate 911 complaints does not mean that they have the unqualified power to stop any car a911 caller thinks might be suspicious.

The Supreme Court of Canada stated in R v Mann, 2004 SCC 52 [Mann], at paragraph 35: Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they arenot empowered to undertake any and all action in the exercise of that duty ... police officers do not have carte blanche to detain.

Thepower to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest. [10] Rather, the question is whether the particulars of the 911 complaint combined with the police officer’s observations areenough to create a reasonable suspicion that an offence has occurred.

It is only then that the police can be said to be acting within thelawful execution of their duties and powers in pulling over a vehicle and detaining its occupants. [11] The requirement that there be a reasonable suspicion before detaining an individual during an investigation was articulated atparagraph 34 of Mann: The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, in forming the officer’ssuspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

Reasonable groundsfigures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated inthe criminal activity under investigation.

The overall reasonableness of the decision to detain, however, must further be assessed againstall of the circumstances ... (emphasis added) [12] ‘Reasonable suspicion’ was recently considered by the Supreme Court of Canada in R v Chehil, 2013 SCC 49, [2013] 3 SCR220 [Chehil], where it was determined that the onus is on the Crown to show that objective and ascertainable facts rise to the level of areasonable suspicion, such that a reasonable person, standing in the shoes of the police officer, would have a reasonable suspicion ofcriminal activity.

Reasonable suspicion must be assessed against the totality of the circumstances, inculpatory or exculpatory. Theinquiry must be fact-based, flexible and grounded in common sense and practical, everyday experience. A constellation of objectivelydiscernable facts will not be sufficient to ground reasonable suspicion where it amounts merely to a generalized suspicion that wouldcapture too many innocent people.

While the police must point to particularized conduct or particularized evidence of criminal activityin order to ground reasonable suspicion, such evidence need not itself consist of unlawful behaviour or evidence of a specific knowncriminal act. The Court articulated the standard at paragraph 39 as follows: Is the totality of the circumstances, including the specific characteristics of the suspect, the contextual factors, and the offence suspected,sufficient to reach the threshold of reasonable suspicion?

[ 13 ] In Chehil , the accused purchased with cash a last-minute one-way ticket to travel from Vancouver to Halifax. He travelled alone with a checked bag. The police officers testified that these were characteristics indicative of narcotics trafficking, which the Court determined was enough to meet the reasonable suspicion threshold to detain the passenger and employ a police sniffer dog to search his bag. [ 14 ] In R v MacKenzie , 2013 SCC 50 , [2013] 3 SCR 250 [ MacKenzie ], the police stopped a car for erratic driving and detained the driver after he was observed to be nervous.

He had a pinkish hue in his eyes, was possibly displaying symptoms of marihuana use and was travelling from Calgary to Regina, a known drug pipeline.

The Court determined that the reasonable suspicion standard required for the police to detain him and employ a sniffer dog search had been met in this case as well. [ 15 ] The Saskatchewan Court of Appeal in R v Yates , 2014 SKCA 52 at paragraphs 28 and 29 , [2014] 8 WWR 489, summarized the case law and legal principles surrounding the reasonable suspicion standard and emphasized that there need only be a possibility, not a probability , that the suspected individual is connected to an offence in order to meet the threshold of reasonable suspicion. [ 16 ] An important consideration in determining whether an officer has reasonable suspicion to detain an individual is the officer’s training and experience. [1] Officer training and experience can provide an objective experiential, as opposed to empirical, basis for grounding reasonable suspicion.

Police officers are trained to detect criminal activity. Thus, in assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should be conducted through the lens of a reasonable person standing in the shoes of the police officer. However, police training and experience should not be accepted uncritically by the courts. Hunches or intuition grounded in an officer’s experience will not suffice, nor is deference necessarily owed to a police officer’s view of the circumstances because of his or her training or experience in the field.

Essentially, a trial judge must appreciate the significance of police training and experience when evaluating the worth of the factors considered in forming a belief that an accused might be involved in a drug-related offence. [ 17 ] Having established this legal framework, I will now consider the totality of the circumstances of this case based on the following objectively discernable facts from the voir dire . [ 18 ] RCMP Officers Laura Cockrum and Rob Wilson received a call from 911 dispatch on July 18, 2013, at approximately 7:10 p.m. in the evening.

The 911 caller had reported suspicious activity occurring at the Wagner School teachers’ parking lot in Nipawin, Saskatchewan, specifically that: - a white car was parked in the school parking lot; - three or four vehicles had pulled up alongside it; - exchanges took place between these vehicles and the white car; and - the vehicles drove off while the white car remained there. [ 19 ] The 911 caller provided the phone number and address they were calling from, but wished to remain anonymous.

Constables Cockrum and Wilson immediately followed up on the 911 complaint and drove to Wagner School to observe the situation. On their way there, the officers phoned the 911 caller back who confirmed they lived close to Wagner School and provided further details of the exchanges with the white car they observed. There was a series of short duration visits with the white car and the other cars, where something would be transferred in what sounded like hand-to-hand exchanges between individuals in the cars. The other cars would then leave and the white car remained consistent there. The caller also provided Cst.

Cockrum with the white car’s licence plate number being 675 IWL. A search of the police force CPIC data base revealed that the licence plate was for a 2006 white Crown Victoria registered to the accused, Hailey Jones. [ 20 ] A factual issue arose during argument whether the exchanges were really ‘hand-to-hand’ exchanges and amongst the various cars that entered the parking lot.

From my review of the testimony and transcript of evidence, I find as a fact that the 911 caller reported hand-to-hand exchanges and that in any event, the only logical inference that can be made when items are exchanged between cars in a parking lot is that they are exchanged by hand. I also find as a fact that the 911 caller clearly communicated that the white car was the only car that remained constant in the parking lot that day. As a result, the brief encounters and exchanges that were occurring with the cars that were coming and going from the parking lot that day were with the white car.

[ 21 ] Constables Cockrum and Wilson parked their police cruiser a half block away from the school where they could view the parking lot. The police officers observed a white car matching the caller’s description in the parking lot with a few people standing and milling around it. They continued observing this behaviour for approximately five minutes at which point the white car drove out of the parking lot. The police officers followed it. When they got close enough and were able to confirm it was a white Crown Victoria they activated their emergency lights and pulled it over.

The licence plate was confirmed to be 675 IWL, matching the information provided by the 911 caller. [ 22 ] Hailey Jones drove the car. Roger John was the passenger. [ 23 ] Cst.

Wilson testified in the voir dire that: - he had been involved in over 100 drug investigations and arrests; - he took on many roles in drug investigations; - he worked undercover in drug investigations for street level buying; - he has been an affiant in upwards of 30 ITOs dealing with drug investigations; - he cultivated and made use of informants to assist with drug investigations; - he had taken a source handling course; - he is familiar with, and has made arrests of drug dealers involved in Dial-A-Dope operations; - the nature of the circumstances described by the 911 caller were consistent with drug transactions he had encountered during the course of his duties; and - this was criminal activity he was specifically trained to detect. [ 24 ] When considering the totality of these circumstances surrounding this police stop, I have no hesitation concluding that the officers harboured a reasonable suspicion that the occupants of the white Crown Victoria car were possibly or might be connected to a drug-related offence.

The constellation of objectively discernable facts do not indicate that the car was detained on some sort of mere hunch, but rather that it was stopped because the officers recognized the genuine possibility that its occupants were participants in illegal drug transactions. In the words of Chehil at paragraph 46 , the constellation of objective facts is “capable of supporting a logical inference of criminal behaviour”. [ 25 ] The facts of this case do not amount to a ‘generalized suspicion’ that would capture too many innocent people.

The officers may not have observed anything unusual going on in the parking lot when they arrived there, and there may be other innocent explanations for the exchanges that were taking place with the white car. For example, they may have been exchanging notes from class or items for purchase and sale off the internet. But, these were a succession of quick exchanges between cars in the teachers’ parking lot of an elementary school in the evening in the middle of summer when the school was closed and no one else was around.

It is more possible, and likely, that they were selling drugs from the Crown Victoria vehicle than they were selling items off ebay or passing notes from class at summer school. [ 26 ] The accused argued that the police need significant details in an anonymous tip or something more than an anonymous tip before they can have a reasonable suspicion. They rely upon three cases in support of this proposition. The first is R v Imoro , 2010 ONCA 122 , [2010] OJ No 586 [ Imoro ], where officers received an anonymous phone call that “a man was selling drugs on the 12 th floor of an apartment building”.

An undercover officer investigated by taking the elevator to the 12 th floor. When the elevator opened, a man was there and said “come with me”. The officer asked the man some questions, including whether the man could get him drugs. The man said he could. The Ontario Court of Appeal held that the phone call was insufficient to justify a finding of reasonable suspicion of drug trafficking. There was no reasonable suspicion of drug trafficking when the officer asked the man if he could get drugs. The reasonable suspicion threshold was only achieved when the man confirmed his ability to get the officer drugs.

[ 27 ] R v Gladue , 2012 ABCA 143 , [2012] AWLD 2164 [ Gladue ], was a decision of the Alberta Court of Appeal. The facts of the call at paragraphs 2-4 of the decision were as follows: An Edmonton police officer received a tip from a first time informant with a criminal record that a phone number was being used to sell crack cocaine at a Dial-A-Doper scheme. The informant specified two Edmonton locations where the drugs were typically sold and named individuals associated with the Dial-A-Doper number. To protect the informant, the names were not disclosed to the Court.

Without taking steps to verify the tip, the police officer passed the tip on to a sergeant who received about 30 tips a month concerning Dial-A-Doper numbers. The sergeant took no steps to verify the tip but instructed Cst. Smith to phone the Dial-A-Doper number and attempt to arrange a cocaine purchase. Cst. Smith phoned the number and spoke to an unidentified male. He asked the male if he was “working” or “rolling”. Cst. Smith testified he asked this question to determine whether the male was working in a drug dealing capacity. To Cst. Smith, the term “rolling” meant in a vehicle selling drugs. Cst.

Smith was not qualified as an expert witness on drug jargon. The male responded positively and asked “Who are you?” Cst. Smith replied “Johnny”. The male asked Cst. Smith what he wanted and Cst. Smith asked if he could get “four for a hundred”, meaning four-gram pieces of crack cocaine for $100.00. The male responded that the price would be $110.00 and agreed to meet Cst. Smith at a specified location. The respondent sold Cst.

Smith approximately two grams of crack cocaine for $110.00. [ 28 ] The trial judge had found that a reasonable suspicion of criminal activity necessary to ground the bona - fide inquiry exception to entrapment had not been met. The Court of Appeal agreed with the trial judge, holding at paragraph 11 that: ... The unverified tip, received from a first time informant with a criminal record, was not enough to raise a reasonable suspicion. We also agree that the conversation between Cst.

Smith and the respondent, particularly the use of the words “rolling” or “working”, was not enough to elevate the circumstances beyond mere suspicion. [ 29 ] However, both Imoro and Gladue are cases that deal with the issue of entrapment and a consideration of s. 7 of the Charter . As a result, these cases are of limited value and assistance to the Court in considering whether a ‘reasonable suspicion’ standard has been violated under of s. 9 of the Charter, as is alleged in this case.

Further, I note that both Imoro and Gladue are decisions of the Ontario and Alberta Courts of Appeal, respectively and that they were decided prior in time to the Supreme Court of Canada decisions in Chehil and MacKenzie, which are now the governing authorities on the standard for reasonable suspicion in Canada. [ 30 ] Further, both these cases are distinguishable from the facts of this case. Imoro involved a mere general allegation of drugs being sold on the floor of an apartment building. The caller did not say he personally saw anything being exchanged, as the caller did here.

Nor did the caller in Imoro indicate the precise location or apartment from which the exchanges were taking place inside the public building as the caller did here when they specifically described the vehicle from which the exchanges were taking place in the public parking lot and provided its licence plate number. [ 31 ] Likewise in Gladue all the police had was a Dial-A-Dope number from an unverified source with a criminal record. In the present case, the source of the 911 call was verified by Cst.

Cockrum in a subsequent follow-up telephone conversation and the caller provided considerably more, additional information as to where, when, how and who was performing the hand-to-hand exchanges he had personally observed. [ 32 ] The accused also cited the Ontario Court of Appeal decision in R v Williams , 2013 ONCA 772 , 111 WCB (2d) 574 [ Williams ], where an anonymous tip was given alleging that a person was carrying a handgun. At paragraph 26, the tipster said: ... A person was walking south at 1800 Martingrove with a gun. The person was described as a black man wearing a black t-shirt and jeans.

The man was 5 feet, 8 inches tall, had a baby face, and wore his hair in dreadlocks. The officer asked the caller’s name. The caller hung up. [ 33 ] The Ontario Court of Appeal held that initial tip alone was insufficient to support the officer’s reasonable suspicion of an offence being committed. Reasonable suspicion justifying an investigative detention was eventually found, but only after police

questioned the suspect in a manner not amounting to a detention. [34] However, the Williams decision is also distinguishable on the facts as the police officer was not able to confirm theinformation received. The caller did not provide his name or where he was calling from and when asked, the caller hung up. In the caseat bar, Cst. Cockrum was able to and did phone the tipster back to confirm the details of the alleged activity and obtain furtherinformation directly from him.

This elevated the 911 caller from an anonymous tipster to a reliable informant. [35] In any event, the common concern the Courts had that underlined all three of these cases is that the anonymous tips couldhave been mere rumour or conjecture. There was nothing that allowed the police to determine how the tipster knew the information theywere passing along or what the basis was for it. In this case though, the police were able to phone up and speak directly to the callerwhile en route to the scene.

They not only verified, but received further details of the activity that the caller was observing that simplywas not present in all three of these cases. This elevated the 911 caller from a mere unverifiable and anonymous tipster to a credible andreliable informant. The police knew which house the caller was calling from relative to the observations he was observing in the schoolparking lot.

The caller provided more information of the exchanges and a licence plate number which corroborated the earlierinformation provided to 911 and made this caller more trustworthy. [36] The licence plate number was for a white Crown Victoria vehicle that the caller observed in the parking lot.

It was not untilthe officers could positively identify the white car they observed and followed as the Crown Victoria, that it was pulled over anddetained. [37] R v Plant, (SCC), [1993] 3 SCR 281 [Plant] is a decision of the Supreme Court of Canada that dealt with ananonymous tip of a drug house within a specified city block corroborated by a police check of the electrical consumption at the streetaddress of the drug house ascertained by police.

The Supreme Court held that this was sufficient to constitute reasonable grounds for theissuance of a search warrant, at page 297: The information given by the anonymous informant was compelling in that it identified the location of the cultivation operation andlocated the appellant’s house in a fairly specific geographic region, albeit without specifying an exact street address.

It is impossible todetermine whether the source was credible except by reference to the fact that the information was subsequently corroborated by a policerecognizance which resulted in identification of the exact address of the residence described by the informant. The tip itself, therefore,was compelling enough in its specification of the place in which the offence was occurring for the police to readily locate the exactaddress of the appellant’s residence and corroborate the report of the informant.

I conclude that the anonymous tip, although made by anunknown informant, was sufficiently reliable to have formed part of the reasonable grounds asserted in the information to obtain thewarrant. [38] The information given by the caller in this case was compelling as well. It identified where the white car was located in theteachers’ parking lot of Wagner School. It contained details of the exchanges with three or four cars pulling up alongside the white carin succession. The visits were brief, something was exchanged and the cars would leave with the white car remaining in the parking lot.

Further, the police were able to determine the source was credible by phoning the caller and confirming the information received andobtaining further information, including a licence plate number of the white car in the parking lot. This information was subsequentlycorroborated by a police recognizance which resulted in identification of the precise 2006 white Crown Victoria car described by theinformant.

The police were able to readily locate it. [39] In conclusion, I find this compelling and credible tip combined with the corroborating evidence of the police officer issufficient to constitute reasonable suspicion for them to pull over the vehicle, and it may have even been sufficient to constitutereasonable grounds for them to obtain a search warrant according to the Plant decision of the Supreme Court of Canada. I therefore, findthe accused were not arbitrarily detained and there was no violation of their s. 9 Charter rights when the white Crown Victoria waspulled over.

The police officers were acting under a reasonable suspicion that the individuals in the car were connected to an offence,and as such they were lawfully executing the duties and powers entrusted to them as police officers in stopping the vehicle.

(2) Whether the police violated the accuseds’ s. 8 Charter right against unreasonable search and seizure when they seized and wentthrough the cell phone?

[ 40 ]

Section 8 of the Charter provides: 8 Everyone has the right to be secure against unreasonable search and seizure. [ 41 ] The police search of Hailey Jones’ cell phone was a warrantless search.

Warrantless searches are prima facie unreasonable and a violation of s. 8 of the Charter [2] unless the Crown can establish the reasonableness of the search on a balance of probabilities [3] . [ 42 ] A well recognized exception to this rule is that the police may conduct warrantless searches incident to arrest. [4] The Supreme Court of Canada in R v Fearon , 2014 SCC 77 , [2014] SCJ No 77 [ Fearon ], indicated that police can search a cell phone incident to an arrest provided four conditions are met, at paragraph 83:

(1) The arrest was lawful;

(2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are: (

a) Protecting the police, the accused, or the public; (

b) Preserving evidence; or (

c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;

(3) The nature and the extent of the search are tailored to the purpose of the search; and

(4) The police take detailed notes of what they have examined on the device and how it was searched. [ 43 ] I will now apply this legal framework to the facts of the present case. (

i) At the scene of the arrest and police station

(1) The arrest was lawful. [ 44 ] When the police pulled over the white Crown Victoria vehicle, Cst. Wilson went to the driver’s side to speak to Hailey Jones and Cst. Cockrum went to the passenger side to speak to Roger John. [ 45 ] While speaking to Hailey Jones, Cst. Wilson smelled fresh marihuana in the vehicle. He also saw in the open console Ziplock baggies and a silver container which he believed to be a marihuana grinder. Furthermore, Cst.

Wilson noticed in the door handle area a slightly exposed black pipe, which he believed was used as a means to smoke marihuana. [ 46 ] Based on the totality of these observations, Cst. Wilson decided he had reasonable and probable grounds to arrest and did arrest both accused for possession of a controlled substance. [ 47 ] The officers then began searching the car and seized several items, including a backpack containing Ziplock baggies. One of the baggies contained eight individually rolled tinfoil balls, with roughly one gram of marihuana in each. $10.00 in coins was also in this baggie.

Two marihuana grinders and three pipes were also seized from the car and backpack. Furthermore, $120.00 in cash was seized from Roger John, as well as $175.00 in cash from Hailey Jones’ wallet which was left in the car.

[ 48 ] During the search, Cst. Wilson also found in the console a cell phone belonging to Hailey Jones. The cell phone was already powered on and was not password-protected. Cst. Wilson viewed two recent text message conversations. In one text message conversation, an individual was asking the owner of the phone if they could buy a “30”. In another text message conversation, a different individual was asking to buy a “40”. Cst. Wilson interpreted these messages as arranging to buy marihuana. [ 49 ] After viewing these text messages, Cst.

Wilson re-arrested both accused at 7:50 p.m. for trafficking in a substance and possession for the purpose of trafficking (cannabis marihuana) contrary to s. 5(1) and 5(2) of the Controlled Drugs and Substances Act , S c 1996, c 19 . [ 50 ] At 2:13 a.m. the next morning at the Nipawin RCMP Detachment, Cst. Wilson examined the cell phone more thoroughly and viewed additional text message conversations. He transcribed the content of these messages in his police notes.

The text message conversations viewed at this point were similar to the two he had viewed earlier during the initial stop of the car in that they appeared to involve trafficking with the sender of the incoming messages asking the recipient if they could meet to buy drugs. Two of the conversations transcribed by Cst. Wilson involved the sender asking to buy marihuana with the recipient responding in the affirmative and indicating to the sender to meet at Wagner School for the exchange.

These conversations occurred at around the time the original complaint from the 911 caller was made. [ 51 ] I have already determined that the accused were lawfully detained because the police held a reasonable suspicion that they were involved in the commission of an offence. [ 52 ] Their subsequent arrest was based on Cst. Wilson’s observations of various paraphernalia related to drug trafficking located in plain sight in the car, the smell of raw marihuana emitting from it and his own extensive experience in investigating drug transactions. Their arrest was lawful.

(2) The search is truly incidental to arrest. [ 53 ] The discovery of evidence is an important function necessary for police officers to effectively carry out their duties.

Police are not limited to exigent or emergency circumstances when conducting a search incidental to arrest because the timely search of items which may indicate the arrestee’s innocence or guilt is of fundamental importance in criminal investigations. [5] Indeed, the Supreme Court of Canada has ruled that police must be empowered to collect evidence located at the scene of an arrest, including in a motor vehicle. [6] It is at the scene of an arrest where police need access to evidence the most. [ 54 ] There is Saskatchewan case law instructive on the issue of cell phone searches incident upon arrest for drug related offences.

In R v Larose , 2013 SKQB 226 , [2013] SJ No 384 [ Larose ], the accused was suspected of being involved in drug trafficking. The accused’s cell phone was seized incident to arrest and the officer who searched the phone testified that she believed examining the cell phone would uncover further evidence with respect to the offence. The cell phone was seized at 2:30 a.m. and searched at 10:00 p.m. later that day at the police station.

In all the circumstances, this was held to be a reasonable search. [7] [ 55 ] With regard to the search of Hailey Jones’ cell phone, the accused were initially arrested for a drug offence. Cst. Wilson testified in the voir dire that he had been involved in over 100 “Dial-A-Doper” drug investigations, which involved arranging for the purchase and exchange of drugs using cell phones.

It is reasonable to believe that an examination of the cell phone found at the scene of the arrest would recover relevant information towards the purchase and sale of drugs and indeed, their drug investigation would have been stymied or significantly hampered absent their ability to promptly search the cell phone upon arrest. [ 56 ] In addition to having a reasonable belief that the search was connected to one of the three purposes justifying a search of a cell phone incident to arrest, for a search to be truly incidental it must also have occurred “within a reasonable period of time after the arrest”. [8] In this regard, police investigations often continue after the immediate time of the arrest.

While a search conducted weeks after an arrest may be unreasonable and require a judicial warrant, a search hours after an arrest has been found to be reasonable in the following similar cases dealing with searches of cell phones in Saskatchewan:

- In Larose a cell phone was charged and searched at the police station over 19 hours after the initial arrest. The search was deemed to be incidental to arrest and three text messages viewed and transcribed from the cell phone were admitted into evidence. - In R v Adeshina , 2013 SKQB 414 [ Adeshina ], a cursory inspection of the accused’s cell phone when he arrived at the police detachment was lawful and text messages were admitted into evidence.

However, further searches of some messages and photographs on the cell phones performed months later along with a ‘data dump’ that provided 682 pages of information were too distant in time to be considered searches incidental to arrest. - In R v Meagher , 2013 SKPC 152 , [2013] SJ No 534, the police seized three cell phones from an accused involved in trafficking cocaine. The phones were brought back to the detachment and the text messages on all three phones were reviewed with messages pertinent to the drug investigation being transcribed within hours after the arrest.

The search was found to be incidental to arrest and the transcriptions were admitted into evidence. [ 57 ] In the instant case, the initial search of the cell phone took place immediately after arrest, as well as another search roughly six hours later at the Nipawin RCMP Detachment in which the contents of the text messages were transcribed. Both searches fall within a reasonable period of time after the arrest has occurred such that they are still connected and incidental to arrest. The search performed at the detachment was for the same purpose as the search performed at the scene of the arrest.

The delay was not substantial and the considerations related to the search did not change from the time of the arrest. [ 58 ] I therefore conclude that the search of Hailey Jones’ cell phone at the scene of the arrest and the detachment was truly incidental to arrest.

(3) The nature and the extent of the search are tailored to the purpose of the search. [ 59 ] The Supreme Court of Canada stated in Fearon with regard to the third requirement that the search be tailored to its purpose at paragraph 76: In practice, this will mean that, generally, even when a cell phone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted.

But these are not rules, and other searches may in some circumstances be justified. [ 60 ] Cst. Wilson’s search of the cell phone at the scene of the arrest and at the station was focussed and limited solely to the text messaging function of the phone. It consisted of him thumbing through some recent messages on the phone’s text messaging feature. At no point did he access the phone’s e-mail, photos, contact numbers, call log or any other applications on the phone. [ 61 ] As well, Cst. Wilson testified that he only viewed the most recent text messages on the phone.

He was mindful to look at and only transcribed those text messages relating to the offence. [ 62 ] There is plenty of Saskatchewan case law that has admitted into evidence text messages as a result of a search of a cell phone incident to arrest in drug trafficking trials. [9] Text messaging is the lifeblood of Dial-A-Dope drug dealers. The officer performed only a cursory search and did not stray into other areas or applications on the phone that would not have yielded further evidence of an offence.

As such, I find the officer tailored the nature and extent of his search of the cell phone at the scene and station to the purpose of the search.

(4) The police take detailed notes of what they have examined on the device and how it was searched. [ 63 ] The Supreme Court of Canada stated in Fearon with regard to the fourth requirement to keep good notes at paragraph 82:

The record should generally include the applications searched, the extent of the search, the time of the search, its purpose and itsduration. [64] Once Cst. Wilson was back at the detachment and had more time to inspect the phone, he went through the incoming andoutgoing text message conversations on the cell phone again. This time he actually wrote down word for word two of the conversations. These were the same two conversations he had observed at the scene of the arrest where the incoming messages ask if they can buydrugs and the outgoing message indicates ‘yes’.

The incoming message then asks ‘where?’ and the outgoing message replies ‘Wagner’. Defence counsel conceded and I conclude, that the police had indeed kept detailed notes of what they searched and did not search on thephone, when they searched it and what they found. [65] As such, I find the police complied with all four requirements of Fearon. The limited, cursory search of the cell phone at thescene of the arrest and at the detachment was incidental to arrest and lawful.

I admit into evidence the text messages obtained from it. (ii) Sending the phone away for analysis of its contents [66] The Supreme Court of Canada stated in Fearon at paragraph 78: ... the fact that some examination of a cell phone is truly incidental to arrest does not give the police a licence to rummage around in thedevice at will. The nature and extent of the search must be truly incidental to the arrest in order for it to fall within the scope of thecommon law rule and respect s. 8 of the Charter.

I agree with the Courts of Appeal in British Columbia and Nova Scotia that, generally,the search of the entire contents of a cell phone or a download of its contents is not permitted as a search incident to arrest: Mann, at para.123; Hiscoe, at paras. 63 and 79. [67] Five days after the arrest on Tuesday, July 23, 2013, Cst. Wilson completed an Assistance Request to the SaskatchewanTechnological Crime Unit in Saskatoon.

The purpose of the Assistance Request was for the Technological Crime Unit to complete aforensic analysis of the contents of the phone. [68] It was not entirely clear in the voir dire exactly what the purpose of this further analysis or download or ‘data dump’ of theentire contents of the phone was, except to gather even more evidence of an offence than had been obtained at the scene of the arrest anddetachment that night. [69] Cst. Wilson had already transcribed word for word the incoming and outgoing text messages of conversations on the phonethat he felt indicated the accused were trafficking in drugs.

So there was no reason to believe the entire contents of the phone had to bedownloaded or copied in order to preserve this evidence. Remote data wipes of cell phones are possible, but that was not cited as anexigent circumstance justifying sending the cell phone away in this case. Once the police were in possession of Hailey Jones’ cell phonethere was no need to fear its destruction. Even if Cst. Wilson had cited concern of a remote data wipe as justification for a data dump,there are less invasive procedures for preventing a remote data wipe.

For example, by removing the phone’s battery and network card orstoring the phone in a Faraday box thereby preventing the phone’s network communication officers could have safely stored HaileyJones’ cell phone while awaiting judicial authorization for a search warrant in accordance with Hunter v Southam, (SCC), [1984] 2 SCR 145 protocols. [70] The only case referred to by our Saskatchewan courts as permitting downloading of the contents of a cell phone incident toarrest was R v Giles, 2007 BCSC 1147 , 2007 BSCS 1147, [2007] BCJ No 2918 [Giles].

However, this is the earliest of all thedecisions dealing with this issue and well before the Supreme Court of Canada’s decision in Fearon. It also has not been endorsed byany other province. [71] Sending the phone away for analysis really runs afoul of condition #3 in Fearon. The search of the entire contents of thephone is so vast and extensive it cannot logically be said to be proportional or tailored to the original purpose for searching the phoneincidental to arrest to gather evidence of drug trafficking.

It is not necessary to go through all the applications on the phone, including allof the holder’s personal photos, contacts, calendar, call logs and internet browsing history in order to find evidence of drug trafficking. As such, it cannot reasonably be said that this mobile device data analysis is merely an extension of the police authority to conduct a

search of an item seized incident to arrest. The police are not merely looking inside someone’s car. They are looking inside someone’slife. There being no legitimate purpose tailored to such an invasive search, I find the forensic analysis of the phone constitutes a breachof Hailey Jones’ s. 8 Charter right. [72] Just because Hailey Jones’ s. 8 Charter rights have been breached as a result of a search of his cell phone does not mean thatRoger John’s s. 8 Charter rights were breached as well.

The Supreme Court of Canada in R v Belnavis, (SCC), [1997]3 SCR 341 at paragraph 19, held that an individual cannot claim a Charter remedy based on a breach of someone else’s Charter rights. [73] Roger John has no claim to any s. 8 remedy with respect to the contents of Hailey Jones’ cell phone. In order for a s. 8challenge to be made, Roger John must establish that he had a reasonable expectation of privacy with regard to the items searched andseized.

The factors for considering the existence of a reasonable expectation of privacy elucidated in R v Edwards, (SCC), [1996] 1 SCR 128 at paragraph 25, provide guidance for determining if a reasonable expectation of privacy exists with respect toRoger John. Chiefly, he never exhibited any control over the cell phone, nor has it been shown that he is a frequent and usual user of it. Nor does any of the information retrieved from the phone establish that Mr.

John had a reasonable expectation as to its contents. [74] Charter rights are personal rights and one cannot claim a Charter breach in relation to the breach of another’s rights. Assuch, I find that Roger John’s s. 8 Charter rights were not violated as a result of the search and seizure of Hailey Jones’ cell phone.

(3) If there has been a Charter breach should the evidence be excluded? [75] Section 24(2) of the Charter provides: 24(2) Where ... a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed bythis Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, that the admission of it in theproceedings would bring the administration of justice into disrepute. [76] The party seeking to have evidence excluded bears the burden of proving its exclusion is required on an assessment andbalancing of the evidence in light of the following three factors set out in R v Grant, 2009 SCC 32, [2009] 2 SCR 353 at paragraph 71. (

i) The seriousness of the Charter-infringing state conduct [77] According to the Supreme Court of Canada in R v Buhay, 2003 SCC 30, [2003] 1 SCR 631 at paragraph 52: The seriousness of the police’s conduct depends on “whether it was committed in good faith, or was inadvertent or of a merely technicalnature, or whether it was deliberate, wilful or flagrant” It is also relevant to consider whether the violation was motivated by a situationof urgency or necessity.

Also pertinent is whether the police officer could have obtained the evidence by other means, thus renderingher or his disregard for the Charter gratuitous and blatant. [78] I found Cst. Wilson to be quite forthright and candid in his explanation on the stand that when he sent the cell phone toSaskatoon for forensic analysis, he was of the honest belief that doing so did not require a warrant. He testified that his understanding ofthe law at that time was that sending a cell phone away for forensic analysis did not require a warrant if it was sent within a reasonabletime of its seizure.

He referred to case law and understood that at some point a warrant would be needed. For example, in a prior case,34 days had passed before Cst. Wilson sent a phone away which the Technological Crime Unit sent back indicating they needed awarrant. But, he did not believe that one was required in this case given that he came into the detachment on the next available day offhe had (ie. he was working night shifts from 7:00 p.m. to 4:00 a.m. the night the cell phone was seized on July 18, 2013 and for the nextsucceeding four nights) being five days later, on Tuesday, July 23 to send the phone off.

He came in on his own time and while off-duty,filled out the required paperwork and sent the phone for technical analysis. This indicates Cst. Wilson was mindful of the accuseds’Charter rights and not acting in intentional or flagrant disregard of them.

[ 79 ] To further complicate matters, the law with respect to search and seizure of cell phones at the time Cst. Wilson sent the phone away for data analysis was unclear and in a state of flux. [ 80 ] Adeshina was the only Saskatchewan case dealing with a cell phone sent away for forensic analysis.

In that case, the phone had been sent away for analysis five months after the date it was seized and the Court concluded this was not sufficiently close to the time of arrest to be considered part of the search incidental to arrest. [ 81 ] However, there was also then existing the Giles decision out of British Columbia that had permitted a forensic analysis of a cell phone performed a couple of months after seizure as being a lawful search incident to arrest. [ 82 ] And as can be seen from this decision, there were a myriad of other cases emerging in courts all across the country at the time dealing with the issue of cell phone searches in general.

There was no clear consensus or direction concerning the proper protocol for these types of warrantless searches until the Supreme Court of Canada ruling in Fearon which was released subsequent to the voir dire being held in this case. When there is uncertainty in the law, the seriousness of a Charter breach may be lessened. [10] [ 83 ] Cst. Wilson’s desire was to send the phone off to Saskatoon in a timely fashion as part of a search incidental to arrest. However, there was nothing to indicate that the contents of the cell phone might be destroyed while waiting to obtain a search warrant.

Even if that concern had been cited as a justification there were less intrusive measures the police officers could have taken to ensure the phone contents were protected while seeking out a warrant. [ 84 ] In all these circumstances, I conclude that Cst. Wilson was acting in good faith when he thought he did not require a warrant to have the phone sent away to be searched. His conduct falls at the low end of the spectrum of seriousness and no adverse message would be sent by admitting the evidence from the contents of the phone into evidence. The Court is not required to disassociate itself from this conduct.

I find the first factor favours admission of the evidence. (ii) The impact of the breach on Charter -protected interests [ 85 ] The search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other “places”. [11] The Supreme Court of Canada stated in Fearon at paragraph 51 : As outlined in Vu , computers - and I would add cell phones - may have immense storage capacity, may generate information about intimate details of the user’s interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinks that it has been destroyed, and may provide access to information that is in no meaningful sense “at” the location of the search: paras. 41-44. [ 86 ] However, with regard to the mobile device analysis performed here it is important to note that Cst.

Wilson completed an Assistance Request Form specifically detailing the type of data to be recovered from the phone. The forensic analysis was targeted in this respect, and the search was completed in a manner that attempted to maintain Mr. Jones’ privacy rights as much as possible in the circumstances. [ 87 ] It is also worth noting that the police likely could have obtained a warrant to search the contents of the phone in any event. The police had already obtained abundant evidence from the 911 caller and the search of the vehicle and accused at the scene.

Had they thought it necessary to apply for a judicial warrant, they likely would have had reasonable and probable grounds to obtain one as I intimated earlier when considering their reasonable suspicion to detain under the Plant decision of the Supreme Court of Canada. This reduces both the seriousness of the breach and its impact on the accused. The accuseds’ privacy interests were going to be impacted one way or the other. While this factor favours exclusion, it does so minimally.

(iii) Society’s interest in adjudication on the merits [88] The electronic contents of a cell phone collected via forensic data analysis are inherently highly reliable, cogent and central tothe Crown’s case. While the evidence collected to now may indicate a relatively unsophisticated operation (eg. approximately eightgrams of substance, $120.00 found on Mr.

John and $175.00 in the wallet of Hailey Jones) the contents of the cell phone will allow theprosecution and Court to get a full sense of the extent of the accuseds’ activities in an objective manner divorced from misinterpretation. [89] In Fearon, the Supreme Court of Canada refused to exclude evidence obtained from a cell phone unlawfully searched incidentto an arrest. And in Adeshina, the Saskatchewan Court of Queen’s Bench admitted warrantless evidence obtained from a cell phone in amore egregious Charter violation where the cell phone was sent for analysis more than five months after it was seized.

The Court did soon the grounds that the information obtained was crucial to the prosecution’s case. [90] Drug trafficking is a serious crime and society’s interest would best be served by having the evidence from the cell phoneadmitted. This factor favours admission. [91] In balancing these three factors, I conclude that the exclusion of this evidence would undermine the truth seeking function ofthe justice system and I therefore order that it be admitted into evidence in the trial proper. CONCLUSION [92] The police had a reasonable suspicion of criminal activity when they stopped the accused.

A cursory review of recent texts ona cell phone at the scene and police station is a lawful search incident to arrest. However, sending the phone away for downloading andanalysis requires a search warrant first. The evidence from the cell phone is not excluded because the law was unclear at the time of thesearch. J.

Rybchuk, J LIST OF AUTHORITIES R v Godoy, (SCC), [1999] 1 SCR 311 R v Mann, 2004 SCC 52 R v Chehil, 2013 SCC 49, [2013] 3 SCR 220 R v MacKenzie, 2013 SCC 50, [2013] 3 SCR 250 R v Yates, 2014 SKCA 52, [2014] 8 WWR 489 R v Imoro, 2010 ONCA 122, [2010] OJ No 586 R v Gladue, 2012 ABCA 143, [2012] AWLD 2164 R v Williams, 2013 ONCA 772, 111 WCB (2d) 574 R v Plant, (SCC), [1993] 3 SCR 281 Hunter v Southam, (SCC), [1984] 2 SCR 145

R v Caslake, (SCC), [1998] 1 SCR 51 Cloutier v Langlois, (SCC), [1990] 1 SCR 158 R v Fearon, 2014 SCC 77, [2014] SCJ No 77 R v Beare, (SCC), [1988] 2 SCR 387 R v Stillman, (SCC), [1997] 1 SCR 607 R v Larose, 2013 SKQB 226, [2013] SJ No 384 R v Adeshina, 2013 SKQB 414 R v Meagher, 2013 SKPC 152, [2013] SJ No 534 R v Giles, 2007 BCSC 1147 , 2007 BSCS 1147, [2007] BCJ No 2918 R v Belnavis, (SCC), [1997] 3 SCR 341 R v Edwards, (SCC), [1996] 1 SCR 128 R v Grant, 2009 SCC 32, [2009] 2 SCR 353 R v Buhay, 2003 SCC 30, [2003] 1 SCR 631 R v Cole, 2012 SCC 53, [2012] 3 SCR 34 R v Spencer, 2014 SCC 43 R v Vu, 2013 SCC 60, [2013] 3 SCR 657 R v Morelli, 2010 SCC 8, [2010] 1 SCR 253 [1] Chehil at para 47, MacKenzie at paras 62-64 [2] Hunter v Southam, (SCC), [1984] 2 SCR 145 [3] R v Caslake, (SCC), [1998] 1 SCR 51 at para 11 [Caslake] [4] Cloutier v Langlois, (SCC), [1990] 1 SCR 158, Caslake [5] R v Beare, (SCC), [1988] 2 SCR 387 at para 34 [6] R v Stillman, (SCC), [1997] 1 SCR 607 at para 48 [7] Larose at para 13 [8] Caslake at para 24 [9] Larose, Adeshina and Meagher [10] R v Cole, 2012 SCC 53 at para 86, [2012] 3 SCR 34; R v Spencer, 2014 SCC 43 at para 77; Fearon at paras 93 and 94 [11] Fearon at paras 51 and 96; R v Vu, 2013 SCC 60, [2013] 3 SCR 657 at paras 38 and 40-45; R v Morelli, 2010 SCC 8, [2010] 1 SCR253 at para 2