Her Majesty the Queen, ) ) Deborah Carlson, v. Mark Kantor,, 2019 MBPC 73

CITE: R. v. Heppner, 2019 MBPC 73 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN: Her Majesty the Queen, ) ) Deborah Carlson, and Mark Kantor, ) ) for the Crown - and – ) ) ) Darren Lyle Heppner, ) ) Sarah Inness, for the Accused Accused ) ) ) Reasons for Decision ) Delivered: November 19, 2019 A. Krahn, A.C.J. Introduction [ 1 ] Darren Heppner was charged with sexual assault, obtain sexual services for consideration and three counts of breaching his recognizance. His trial began with a voir dire where he alleged his

section 8, 9, and 10(

b) Charter rights were violated. I outlined my decisions on his Charter motion in advance of the trial continuation dates, and indicated more fulsome written reasons would follow. These are those reasons. [ 2 ] In order to place the legal issues in context, I will provide a brief overview of the evidence heard during the voir dire . [ 3 ] Tiffany Moxam is a vulnerable person as defined in The Vulnerable Persons Living with a Mental Disability Act (“The Vulnerable Persons Act”) . Ms. Moxam receives support services from Kaitlin Beaudry, a caseworker employed by Turning Leaf.

Turning Leaf is a non-profit organization that supports adults with mental illness and mental disabilities. Turning Leaf receives funding from Community Living Disability Services (CLDS), a government department. [ 4 ] In February 2018, Ms. Moxam reported to her caseworker, Ms. Beaudry, she was fearful of an individual she had met and with whom she had exchanged email communications. Ms.

Moxam reported this person identified himself as the owner of Astroid Management, a property management company in Winnipeg, and she was required to have violent sex with this person in order to be paid and to be able to sublet her apartment. Ms. Moxam provided a copy of these emails to Ms. Beaudry. Ms. Beaudry forwarded these emails to Ms. Moxam’s community services worker with CLDS. [ 5 ] Ms. Arnason, a protection investigator for CLDS, was assigned to investigate the matter. Ms.

Arnason, accompanied by a Winnipeg Services police officer in the position of the Vulnerable Persons Coordinator, went to an address on Talbot and met with the leasing office. After reviewing tenancy information, Ms. Arnason was able to determine the address of Darren Heppner, whose phone number and email matched those of the person who had been communicating with Ms. Moxam. [ 6 ] After conducting an investigation, Cst. Gross with the Counter-Exploitation Unit of the Winnipeg Police Service decided to arrest Mr. Heppner. Prior to attending Mr. Heppner’s apartment on April 3, 2018, he confirmed Mr.

Heppner’s address with the caretaker or tenant office of the building. Mr. Heppner was arrested outside his apartment. Mr. Heppner asked to turn off his stove and TV in the apartment. Cst. Gross and Cst. Robbins followed him. In the apartment they heard a sound they believed was a text notification on a cell phone. Mr. Heppner was on release conditions that prohibited him from having a cell phone. Mr. Heppner was asked two questions about the sound. He pointed to a drawer which was opened by Cst. Gross and a cell phone was located.

Police seized the cell phone and subsequently sought a warrant to search the cell phone. [ 7 ] The issues for the Court to decide are as follows:

1.) Is s. 22(2) of the Vulnerable Persons Living with a Mental Disability Act compliant with s. 8 of the Charter? 2.) Was this a criminal investigation from the outset such that Ms. Arnason exceeded the scope of her regulatory or administrativeauthorities – the Jarvis issue? 3.) Did Mr. Heppner have a reasonable expectation of privacy over the tenancy records maintained by Astroid Management? 4.) Does Mr. Heppner have a reasonable expectation of privacy in the email communications turned over by Ms.

Moxam to her TurningLeaf worker, ultimately provided to the police without warrant? 5.) Was the warrantless entry into Mr. Heppner’s apartment a breach of Mr. Heppner’s s. 8 rights? 6.) Was the warrantless seizure of the cell phone a violation of Mr. Heppner’s s. 8 Charter rights? 7.) Were Mr. Heppner’s s. 10 rights violated when Cst. Gross asked him where the phone was? 8.) Were Mr. Heppner’s s. 8 rights violated by an overbroad warrant? Is Section 22(2) of the Vulnerable Persons Living with a Mental Disability Act compliant with s. 8 of the Charter? [8]

Section 8 of the Charter protects persons from unreasonable search or seizure. [9] Mr. Heppner argued the broad powers exercised by Ms. Arnason without warrant and without reasonable grounds breach s. 8. [10] Section 22(2) of the Vulnerable Persons Act provides broad powers of investigation when the executive director receives areport or believes on reasonable grounds that a vulnerable person is or is likely to be abused or neglected.

Section 22 provides: Investigation by executive director 22(1) When the executive director receives a report under

section 21 or believes on reasonable grounds that a vulnerable person is or islikely to be abused or neglected, the executive director shall investigate the matter. Powers of investigation 22(2) In conducting an investigation under this section, the executive director may (

a) communicate with and visit the vulnerable person and may enter any place at any reasonable time for this purpose; (

b) require any person to provide any information, including personal information as defined in The Freedom of Information andProtection of Privacy Act and personal health information as defined in The Personal Health Information Act, or produce any record,paper or other thing in his or her custody or under his or her control which, in the opinion of the executive director, may be relevant tothe investigation; and (

c) solicit, accept and review reports and information which in the opinion of the executive director, may be relevant to the investigation. [11] Mr. Heppner argues The Vulnerable Persons Act allows for searches of any place, requires any person to provide information asrequested without the necessity of prior judicial authorization and on a very low standard of “may be relevant”, rather than a reasonablegrounds to believe standard. Mr. Heppner argues in Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145 the SupremeCourt held, to be compliant with s. 8 of the Charter, a search would only be reasonable if there was prior judicial authorization and if itwas issued on a reasonable grounds to believe standard. [12] Mr. Heppner points out the provision allows for personal information, as defined in The Freedom of Information and Protectionof Privacy Act and personal health information as defined in The Personal Health Act to be provided to the investigator, without warrant.

This type of information is defined in each of the respective acts and encompasses deeply private information, including informationabout a person’s political beliefs, health history and genetic information. I agree the information that can be required under thesedefinitions includes deeply personal information over which a person would clearly have a reasonable expectation of privacy. [13] Mr. Heppner argues it should have been clear to the drafters of the Act there would be a very high likelihood the investigationwould result in criminal charges. The

definitions of abuse and neglect, he argues, clearly encompass criminal conduct. “Abuse” isdefined in The Vulnerable Persons Act as: “mistreatment, whether physical, sexual, mental, emotional, financial or a combination thereof, that is reasonably likely to cause death,or that causes or is reasonably likely to cause death, or that causes, or is reasonably likely to cause serious physical or psychological harmto a vulnerable person, or significant loss to his or her property.” It also defines “neglect” as:

an act or omission whether intentional or unintentional, that is reasonably likely to cause death or that causes or is reasonably likely tocause serious physical or psychological harm to a vulnerable person, or significant loss to his or her property. [14] Mr. Heppner says terms such as “investigate” and “investigator” which are used in The Vulnerable Persons Act support hisposition the Act is criminal in nature and not administrative. He argues the requirement for prior judicial authorizations cannot besidestepped under the guise of administrative searches, when the outcome can and likely will result in criminal charges.

[15] The Crown responds that the Supreme Court has consistently refused to apply “warrant” and “reasonable grounds” standards toadministrative, regulatory inspections. In Comité paritaire de l’industrie de la chemise v. Selection Milton, (SCC),[1994] 2 S.C.R. 406 the Court said prior judicial authorization was not required for regulatory inspections to be compliant with s. 8 of theCharter.

The Court looked at the expectation of privacy attached to the information, the purpose of the regulatory statute and the needfor the powers of inspection, and concluded that a proper balance of the rights of individuals and the interests of society did not requireprior judicial authorization. Justice La Forest said at paragraph 13: . . . The underlying purpose of inspection is to ensure that a regulatory statute is being complied with. It is often accompanied by aninformation aspect designed to promote the interests of those on whose behalf the statute was enacted.

The exercise of powers ofinspection does not carry with it the stigmas normally associated with criminal investigations and their consequences are less draconian. While regulatory statutes incidentally provide for offences, they are enacted primarily to encourage compliance.

It may be that in thecourse of inspections those responsible for enforcing a statute will uncover facts that point to a violation, but this possibility does notalter the underlying purpose behind the powers of inspection. . . . [Emphasis added] [16] The impugned provision must be assessed bearing in mind the purpose and the context of the entire Act.

The Crown says TheVulnerable Persons Act followed the Report of the Review Committee Examining Legislation Affecting Adult Manitobans Living with aMental Disability as Vulnerable Persons: Towards the Recognition and Enhancements of Rights of Vulnerable Persons Living with aMental Disability. Recommendations 17 and 18 of this report contain recommendations relating to reporting neglect and abuse ofvulnerable persons and a process for investigation in order to protect a vulnerable person. The emphasis of Recommendation 18 is theprotection of the vulnerable.

These recommendations can be seen in the Act, particularly in

Part 3 of the Act which is entitled, “Protectionand Emergency Intervention.” All of the provisions of this Part satisfy me that the aim is to protect the vulnerable person, not to furthera criminal investigation. [17]

Section 25 of The Vulnerable Persons Act sets out action that can be taken if the executive director believes a vulnerable personhas been abused or neglected. One of the options included in 25(

b) is to request an investigation by a law enforcement agency. Thissupports my conclusion there is a separation between the investigation that takes place under the Act and a criminal investigation. [18] The Crown filed the Legislative Assembly of Manitoba, Debates and Proceedings, 35th Leg. 3rd sess, 1993, with respect to TheVulnerable Persons Living with a Mental Disability Act.

In introducing the bill at second reading, the Honourable Harold Gilleshammer(Minister of Family Services) said, “This bill then recognizes and protects the rights of Manitobans living with a disability to be self-determining where possible and to receive assistance where necessary in a manner which respects their dignity, independence andprivacy.” (May 12, 1993, page 2876). The legislative debates make clear to me that the Act was trying to balance the rights ofvulnerable persons to make their own choices, self-determination and the need to protect vulnerable persons from abuse.

The emphasiswas not on criminal investigation or criminal charges. These are not mentioned. [19] The Vulnerable Persons Act was amended in 2011 to establish an adult abuse registry for entering the names of persons who arefound to have abused or neglected vulnerable persons as protected under the Act. A criminal conviction is not required to enter a nameon the adult abuse registry.

At second reading, The Honourable Gord Mackintosh, Minister of Family Services and Consumer Affairs,explained the amendments being proposed were to provide additional protections for vulnerable persons in Manitoba, (pages 2463-2464). [20] Mrs. Bonnie Mitchelson, a member of the Manitoba Legislative Assembly representing River East, provided an example of anincident which highlighted the need for an adult abuse registry: Mr.

Speaker, this act was precipitated by an incident where an individual was hired by a non-profit organization that offers residentialfoster care respite and day services to disabled people, and was unknowingly hired after leaving very vulnerable individuals that lived atSt. Amant Centre, leaving them in a van while they went into a movie. This person was let go but did not indicate, when applying atanother residential facility, that they had worked at St. Amant, and therefore all of the records checks, including sexual abuse registryand the criminal history registry were passed, and that individual was hired.

When it came to government’s attention, there was felt thatthere was a need to establish an adult abuse registry. (Legislative Assembly of Manitoba, Debates and Proceedings, Fifth Session,Thirty-Ninth Legislature, Vol.

LXIII No. 63, June 15, 2011, page 2912) This supports my conclusion the predominant purpose of the The Vulnerable Persons Act is to protect vulnerable persons. [21] I agree with the Crown the changes to The Vulnerable Persons Act, including the obligation to provide the types of informationthat might fall under the The Freedom of Information and Protection of Privacy Act and The Personal Health Act was to require suchinformation of the vulnerable person to be produced.

The vulnerable person’s personal information could well be in the hands of analleged abuser and the protective purpose of The Vulnerable Persons Act would be frustrated if those who are alleged to have caused theneglect or abuse could rely on privacy rights of the vulnerable person to avoid detection. This conclusion arises from looking at theentire Act and the Hansard transcripts. [22] Janna Arnason testified she was a Protection Investigator with Community Living and Disability Services. She was assigned toinvestigate if CLDS received reports of abuse or neglect of a vulnerable person.

She said there were three possible outcomes of herinvestigation: 1.) Report is unsubstantiated which means there was no abuse or mistreatment; 2.) Inconclusive, which means there was mistreatment but no serious harm or potential for serious harm; 3.) Substantiated, which means there was mistreatment resulting in serious harm or the potential for serious harm. If the investigation was substantiated, Ms. Arnason said she could refer the matter to the Adult Abuse Registry. She testified asubstantiated investigation would mean they would undertake safety planning for the vulnerable person.

In my view, her evidence isconsistent with the statutory provisions and emphasizes protective steps rather than criminal investigative steps. Admittedly, in this case,

a further referral to the police also occurred, but in my view that does change the initial purpose of the investigation conducted by Ms.Arnason. [23] There are limitations to the broad powers to produce information to a protection investigator. Section 22(2)(

b) and (

c) do notprovide a power of entry.

Section 23 of the Act requires judicial authorization to enter any place if there are reasonable grounds tobelieve that a vulnerable person is being abused or neglected. The

section requires the justice making an order to be satisfied theexecutive director has not otherwise been able to gain access to the vulnerable person.

Again, the purpose is to ensure the executivedirector is in a position to protect the vulnerable person. [24] The Vulnerable Persons Act itself is limited only to the investigation of vulnerable persons, defined in the Act as “an adult livingwith a mental disability who is in need of assistance to meet his or her basic needs with regard to personal care or management of his orher property.” In Comité, Justice L’Heureux-Dube noted the “pragmatic aspect”, the powers of inspection allowed the inspectors todetermine if there had been an offence committed.

If they were required to have reasonable grounds first, a warrant could never issue (atpara. 89). The same result could easily occur in the context of vulnerable persons who may not be able to express themselves completelyor clearly. A reasonable grounds standard would result in an inability to further an abuse investigation and a compromised ability toprotect our most vulnerable citizens. [25] Counsel for Heppner argued the cases relied on by the Crown were restricted to factual scenarios in highly regulated, industrialsectors. She argued they cannot be applied to the abuse investigations at issue here.

However, in Comité Justice LaForest said, “Thesestatutes deal with areas as diverse as health, safety, the environment, taxation and labour. The common thread is found in theirunderlying purpose: harmonizing social relations by requiring observance of standards reflecting the sometimes delicate balancebetween individual rights and the interests of society.” (at para. 9). In R. v. Wholesale Travel Group Inc., (SCC), [1991]3, S.C.R. 154 the Court emphasized the need for a contextual approach in considering constitutional guarantees.

The “appellant’s claim[must] be considered and weighed in light of the realities of a modern industrial society, where the regulations of innumerable activitiesis essential for the benefit of all. It is vital that the fundamentally important role of regulatory legislation in the protection of individualsand groups in Canadian society today be recognized and accepted.” (p. 227) [26] In applying this contextual approach, I have concluded the purpose of The Vulnerable Persons Act is to protect vulnerablepersons and encourage choice and self-determination for vulnerable persons.

While the types of information protection investigators candemand are broad and can include personal information, its focus is the personal information of the vulnerable person, not the allegedabuser. The investigative powers are circumscribed to apply to the vulnerable person. Judicial authorization allowing a place to beentered is provided for in the Act. The consequences of an abuse investigation are focused on protection, such as an entry on the adultabuse registry, not criminal charges.

In conclusion, s. 8 does not require standards of prior judicial authorization or reasonable groundsfor the types of abuse investigations at issue in s. 22. I find s.22 is not unconstitutional and does not infringe Mr. Heppner’s s. 8 rights. [27] While there are broad powers of investigation, these are further circumscribed by the use that can be made of that informationin a criminal investigation as considered next. Was this a criminal investigation from the outset – the Jarvis issue? [28] Mr. Heppner’s position is that Ms.

Arnason already believed there had been a sexual assault when she went to AstroidManagement. Therefore, this was a criminal investigation from the outset and prior judicial authorization should have been soughtbefore requesting the information from Astroid Management. He argues this was her focal point, to ascertain the identity of the accused,apprehend him and arrest him. [29] In R. v. Jarvis, 2002 SCC 73, the Supreme Court dealt with the test to be applied when regulatory inspection powers turn intocriminal investigations.

The Court said when the predominant purpose of the inquiry relates to a determination of penal liability, the s. 8Charter requirements change. The Court said a court should look at all factors and set out a non-exhaustive list of factors (at para. 94)for a trial judge to consider. Are there facts that point to the administrative matter becoming a criminal investigation rather than anadministrative or regulatory investigation? [30] The evidence of Ms. Arnason is germane to this determination. Ms. Arnason was given emails between Ms. Moxam andanother person.

These emails revealed an email address, a phone number, an apartment building address at 260 Talbot Avenue. Thesender of the emails is only identified by a lengthy numerical number and eventually the name, “Peter Peters” is attached to thenumerical ID. I accept Ms. Arnason’s evidence she needed to identify the person in the emails Tiffany Moxam had given to herworker. While she had concluded that abuse had occurred given the content of the emails, she did not yet know the matter would go tothe police. She did not yet know if Tiffany Moxam would want to pursue the matter with police.

It was her experience the police wouldnot pursue criminal charges if Ms. Moxam did not want to proceed with charges. I also find she would have needed the identity of theperson in the emails in order to proceed with having the person’s name added to the adult abuse registry, a protective purpose under TheVulnerable Persons Act. [31] This evidence is consistent with that of Ms. Kaitlin Beaudry. Kaitlin Beaudry was a clinical case manager with Turning Leaf, anon-profit organization providing support to adults living with mental disabilities. Turning Leaf is funded by Community Living andDisability Services (CLDS).

Ms. Beaudry had known Tiffany Moxam for 15 years as a client. She testified she respected Ms. Moxam’sautonomy so while she encouraged her to report the matter to the police, the final decision was Ms. Moxam’s. She said CLDS had theirown investigative process. [32] Was Ms. Arnason using her authority under the Vulnerable Person’s Act to gather evidence as an agent of the police? Iconcluded the answer was no. Ms. Arnason asked D/Sgt. Nathan Kocis, the Winnipeg Police Service’s vulnerable person’s liaisonofficer, to accompany her to the apartment building at 260 Talbot Avenue.

She asked him to accompany her to provide support andensure she did not ask questions she was not supposed to ask. She said she would have attended to Astroid Management on her own, ifthe liaison officer was not available to accompany her. She recalled that she asked him for assistance rather than him asking her for herassistance. Both Ms. Arnason and D/Sgt. Kocis testified he did not participate at all in the conversation at Astroid Management. He was

in plain clothes. D/Sgt. Kocis testified his only role was a supportive one in attending with Ms. Arnason to 260 Talbot. [33] D/Sgt. Kocis was the coordinator of the Vulnerable Person’s Unit. The unit consisted of one other police officer and a socialworker. He explained his role was to liaise with other agencies who work with vulnerable persons. He said the Vulnerable Person’sUnit did not have an investigative capacity given the small number of people in the unit. While he accompanied Ms.

Arnason, he did nottake any notes or generate any reports as a result of his involvement. [34] After gathering the information from Astroid Management, Ms. Arnason interviewed Tiffany Moxam on March 21, 2018. Shetestified she advised Ms. Moxam of her right to report the matter to the police. Ms. Arnason said if Ms. Moxam had not wanted to pursuethe matter she would not have made a report to the police. She would then have consulted with Ms. Moxam’s social worker and heragency, Turning Leaf, in order to see what safety planning needed to occur. Ms.

Moxam expressed her willingness to report the matter tothe police, after which Ms. Arnason forwarded the information she had gathered to D/Sgt. Kocis. [35] Cst. Gross of the Counter-Exploitation Unit was assigned to investigate this complaint by his supervisor. Cst. Gross neverspoke to D/Sgt. Kocis prior to beginning his investigation. [36] A separation between the protection investigation and the criminal investigation was maintained throughout, as required by theSupreme Court’s decision in Jarvis. Ms.

Arnason did not act or become an agent of the police. [37] This issue becomes moot in any event given my finding, as detailed below, that Mr. Heppner did not have an expectation ofprivacy in the tenancy records. Did Mr. Heppner have a reasonable expectation of privacy over the tenancy records maintained by Astroid Management? [38] In order for the right in s. 8 of the Charter to be engaged, a reasonable expectation of privacy must attach to the search orseizure at issue. In R. v.

Plant, (SCC), [1993] 3 S.C.R. 281 the Supreme Court said: …s.8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic societywould wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimatedetails of the lifestyle and personal choices of the individual. (at para. 27) [39] Mr. Heppner argues he had a reasonable expectation of privacy in the records regarding his tenancy maintained by AstroidManagement. If he has a reasonable expectation of privacy in these records, then Cst.

Gross breached his Charter rights by confirmingMr. Heppner’s address with the caretaker without a warrant prior to attending his apartment and arresting him. He further argues therewas a duplicate violation when Ms. Arnason attended to gather the tenancy information. I have already found that Ms. Arnason wasexercising her own administrative authority under the Vulnerable Person’s Act when she collected that information. [40] Mr. Heppner relies on R. v.

Roudiani 2018 BCSC 1101 where a trial judge found a reasonable expectation of privacy existed inscanned driver’s licence identification records collected by a nightclub when patrons entered the premises. The police retrieved theserecords without a warrant. This information was used to identify and link the accused to an aggravated assault which occurred on apublic street, captured on surveillance cameras.

In Roudiani (at para. 50), the trial judge quoted from Justice Binnie’s decision in R. v.Tessling 2004 SCC 67 at para. 26 where he noted, “not all information an individual may wish to keep confidential necessarily enjoys s.8 protection.” The trial judge in Roudiani noted the highly fact-specific nature of the inquiry, that the case before him was “very closeto the reasonableness line” referred to by Justice Binnie, but found there was a reasonable expectation of privacy such that the policeshould have obtained a warrant before gathering the information.

Ultimately, the trial judge in Roudiani did not exclude the evidence, 2018 BCSC 2466. [41] In R. v. Spencer 2014 SCC 43 the Supreme Court considered police retrieval, without a warrant, of subscriber data kept by aninternet service provider in order to identify the user an IP address that was accessing child pornography. The Court concluded a warrantwas required given the scope and nature of the information it would reveal about a person’s online activities.

The Supreme Court hascontinued to recognize the special place and different analysis that must apply to computers, cell phones and online activities, see R. v.Marakah 2017 SCC 59 and R. v.

Vu 2013 SCC 60 for example. [42] In Spencer, the Supreme Court set out four main headings to conduct the analysis of whether a reasonable expectation ofprivacy exists: 1.) the subject matter of the alleged search; 2.) the claimant’s interest in the subject matter; 3.) the claimant’s subjective expectation of privacy in the subject matter; and 4.) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of circumstances. [43] The Crown responds this is routine, first step inquiry that does not attract s. 8 Charter protection.

The Crown relies on R. v.Telfer and Crossman, 2019 MBQB 12 where Martin J. found the retrieval of information identifying the renter of a vehicle used in ashooting was not highly personal information and did not reveal intimate details of lifestyle or personal choices. [44] In R. v. Baldovi et al. 2016 MBQB 221, Joyal C.J. concluded the provision of identifying information to the police by thirdparties such as airport authorities, airlines, a hotel and Passport Canada did not attract a reasonable expectation of privacy. [45] In R. v.

Chehil 2009 NSCA 111, the Court determined WestJet information such as a flight number, the accused’s name, thepurchase of a one-way ticket with cash and one bag being checked was not seen to attract a reasonable expectation of privacy.

[ 46 ] In R. v. Law 2017 BCSC 1241 the Court considered whether a reasonable expectation of privacy attached to key fob records, CCTV footage, residency documents obtained from building management, a floor plan and a response to a noise complaint authored by the accused. The Court concluded, relying on R. v. Saciragic 2017 ONCA 91 , application for leave to appeal dismissed [2017] S.C.C.A. No. 106 and R. v. Webster , 2015 BCCA 286 , leave to appeal refused, [2015] S.C.C.A. No. 376 and R. v. Drakes 2009 ONCA 560 , leave to appeal refused, 2010 [2009] S.C.C.A.

No. 381, a reasonable expectation of privacy did not attach to these types of records. In Webster , it did not breach s. 8 for police to gather tenancy information from a multi-unit building without a warrant. In Drakes police entry and gathering information from a parking garage used by 440 units in a multi-unit building was not information over which one could have a reasonable expectation of privacy.

In Saciragic , information about two key fobs used to enter a multi-unit parking garage and information a person matching the accused’s description had accessed the 11 th floor of the building was not protected by s. 8. [ 47 ] In R. v. Voong 2018 ONCJ 352 , Libman J. dealt with driver’s licence information including a person’s name, address, date of birth, sex and digitized photo of the person’s face, held by the Ministry of Transport.

The Court concluded a person could not have a subjective or objectively reasonable expectation of privacy in this information. [ 48 ] I adopt and follow Libman J.’s conclusion, the information at issue in this case can be distinguished from the context before the Supreme Court in Spencer at para. 30 : Information that may be lacking in biographical core value, though, may be accorded a higher degree of privacy depending upon the use to which it may be put and the details it reveals.

Hence, the subscriber information matching a publicly available IP address (name, address and telephone number) was held by the Supreme Court in R. v.

Spencer 2014 SCC 43 (S.C.C.) at para.51 to engage a “high level of informational privacy” since the disclosure of such information would “often amount to the identification of a user with intimate or sensitive activities being carried online, usually on the understanding that these activities would be anonymous.” (para. 66) [ 49 ] A fact-specific inquiry is required on whether a reasonable expectation of privacy attaches to the tenancy information gathered by the police. The authorities cited above did not find a reasonable expectation of privacy in similar types of inquiries and records. This is persuasive.

Unlike the facts in Spencer , the tenancy records revealed nothing about what was happening in Mr. Heppner’s residence. The subject matter of the search was truly to identify the person who lived in a suite and did not reveal personal online activity. In fact, the allegations police were investigating were not alleged to have occurred in his suite. The records accessed were maintained by a third party and were not in Mr. Heppner’s possession. [ 50 ] Mr.

Heppner would have some interest in these records as they relate to his residence, but his residential address does not relate or reveal intimate details of the resident’s life or private decisions of the resident. [ 51 ] I note that Cst. Gross accessed driver’s licence information as a routine investigative step to determine what that database could tell him about Mr. Heppner’s residence. This search was not challenged. I see no difference between the residence information retrieved from that inquiry and the one at Astroid Management. Mr.

Heppner did not testify so I do not have his evidence as to a subjective expectation of privacy. While that is not fatal as I can infer a subjective expectation of privacy, it does not assist him in this case given the mundane, routine nature of the tenancy information at issue. I cannot find a subjective or an objectively reasonable expectation of privacy on the totality of circumstances before me. Does Mr. Heppner have a reasonable expectation of privacy in the email communications turned over by Ms. Moxam to her Turning Leaf worker, ultimately provided to the police without warrant? [ 52 ] Mr.

Heppner relies on R. v. Marakah 2017 SCC 59 , where the Supreme Court found that Marakah did have a reasonable expectation of privacy in his text communications, retrieved from the phone of the recipient of those text communications. [ 53 ] Mr. Heppner urges me to follow the logic in R. v. Devic 2018 BCPC 321 where the Court held an accused had a reasonable expectation of privacy in his email messages to a person he believed to be a child. The email communications were in fact with an organization called Creep Catchers who were posing as a child online.

Creep Catchers voluntarily turned over the phone containing these communications to the police. The trial judge found a breach of s. 8 occurred when police did not obtain a search warrant for these email communications. I note that Devic was decided before the Supreme Court of Canada’s decision in Mills , considered below, where the Supreme Court came to the opposite conclusion. [ 54 ] Mr. Heppner was not identified by his own name in these email communications. No issue was raised with respect to his standing to challenge the admission of Ms.

Moxam’s email communications, so I have proceeded on the assumption he had standing to raise the issue. [ 55 ] The Crown distinguishes Marakah saying “the question of whether the police are required to seek judicial authorization to seize text messages when the recipient provides their consent was not squarely before the court in Marakah which involved a significantly different factual context”.

The police were not able to introduce the text conversation retrieved from Marakah’s phone because of an illegal search, therefore tried to tender it through the recipient’s phone, arguing Marakah did not have standing to challenge that search since it was not his phone. It is noteworthy that the Court in Marakah was dealing with his standing to raise the s. 8 Charter issue, and if he did have standing, the Crown conceded the search was unreasonable. [ 56 ] The Crown relies on the subsequent decision of R. v. Mills 2019 SCC 22 .

Mills was communicating with an undercover police officer posing as a 14 year old girl. After exchanging sexually explicit messages, a meeting was arranged and Mills was arrested when he arrived for the meeting. The majority of the Supreme Court found the accused did not have an objectively reasonable expectation of privacy in communicating online with a “child” he did not know. Karakatsanis J. and Wagner C.J. agreed in the result but for different reasons.

They concluded one cannot . . .“reasonably expect their words to be kept private from the person with whom they are communicating.”. . . (para. 42) Moldaver J. found that both sets of reasons constituted a sufficient basis for dismissing the appeal. [ 57 ] I note that Karakatsanis J. characterized Marakah as engaging s. 8 because it involved the police viewing of text messages between two parties without their consent . ( Mills at para. 49 ). In the case before me, Ms. Moxam chose or provided her consent to

access her email communications. [ 58 ] On either basis as set out in Mills , I conclude that Mr. Heppner had no expectation of privacy in the email communications turned over by Ms. Moxam to the police. Ms. Moxam was a vulnerable person because of her cognitive functioning. In order to receive the support of CLDS her IQ had to be below 70. Her caseworker, Ms. Kaitlin Beaudry testified while she was an adult and “capable” of sexual relationships, her cognitive delays compromised her ability to appreciate the consequences of her decisions. She said Ms. Moxam had a history of exploitive relationships.

She testified the relationships were 100% advantageous to the person Ms. Moxam was having sex with and always to Ms. Moxam’s detriment. So while Ms. Moxam is not a child, like in Mills , there are important societal values in protecting the vulnerable from sexual exploitation. I adopt the comment by Creagh J. in R. v. Lim 2019 ABPC 87 at para. 35 : Indeed, prohibiting the victim of abuse from disclosing the abuse until a search warrant is granted could be described as permitting the abuser to retain a degree of control over the victim”.

The value of protecting vulnerable persons, balanced with self-autonomy is reflected in the Vulnerable Persons Act as I have already said in this decision. I agree with the Crown, in the case of vulnerable persons, requiring a search warrant before such emails could be reviewed might well prevent the effective investigation of sexual offences involving vulnerable persons. [ 59 ] On the separate reasons of Karakatsanis J., Mr. Heppner does not have a reasonable expectation of privacy in Ms. Moxam’s email. Once he chose (assuming it was Mr. Heppner) to use a written medium to communicate with Ms.

Moxam, he had to have known that a written record of the communication would exist ( Mills at para. 48 & 55 ). He opened himself up to the risk that Ms. Moxam would print or share these communications with others. [ 60 ] If I am a wrong, and the police should have sought a warrant because Mr. Heppner had a reasonable expectation of privacy in Ms. Moxam’s email communications resulting in a breach of s. 8, I would not have excluded the evidence. I find persuasive R. v. Devic 2018 BCPC 321 , R. v. J.R. 2018 CarswellOnt 23084 and R. v. Lim 2019 ABPC 87 where similar evidence was not excluded.

The trial judges in J.R . and Lim , assumed, without deciding there was a breach of s. 8. All three decisions preceded the Supreme Court’s decision in Mills . [ 61 ] There are three lines of inquiry as set out by the Supreme Court in R. v. Grant 2009 SCC 32 to determine whether the email evidence should be excluded. 1.) The Seriousness of the Charter infringing conduct . [ 62 ] I do not find the breach of Mr. Heppner’s Charter rights to be serious given the lack of clarity in the law at the time the emails were forwarded to the police.

It was not settled, even after Marakah, that police would require a warrant to receive copies of email communications purposefully turned over to them by a complainant. 2.) The Impact of the Breach on the Charter-Protected Interests of the Accused. [ 63 ] The information in this case was limited to one series of email communications between Ms. Moxam and a person on the internet. It did not disclose vast stores of information such as a general search of a suspect’s computer or phone would ( Devic at para. 51 ). Mr. Heppner’s expectation of privacy was diminished in the communications resident in Ms.

Moxam’s email account. The evidence was otherwise reliable and discoverable if the police had obtained a warrant. 3.) Society’s Interest in an Adjudication on the Merits . [ 64 ] The exclusion of this evidence would not entirely gut the Crown’s case, Ms. Moxam could still testify as to her recollection of the conversation. The offences against Mr. Heppner are serious. The conclusions of Sutherland J. are apposite to this case: The Charter violation was an understandable error, and the impact on [Mr. Heppner’s] s. 8 Charter right was relatively minor. Sacrificing society’s interest in [Mr.

Heppner] being tried on a thorough and accurate body of evidence because of a less serious Charter violation with relatively minor consequences would take too great a toll on society’s confidence in the administration of justice. ( Devic at para. 62 ) [ 65 ] In balancing the three lines of inquiry, I would not have excluded the evidence, given the uncertainty in the law at the time, the minor impact on Mr.

Heppner’s privacy rights and the reliability of the evidence and its value as a precise record in furthering the Court’s truth-seeking purpose. [ 66 ] In my view, to so broadly cast the “protection” offered by Charter s. 8, and then balance that with not excluding the evidence under 24(2) is getting the balance wrong and belittles the protection offered by s. 8. Was Mr. Heppner arbitrarily detained? [ 67 ] This argument was predicated on the allegations the police had conducted an unreasonable, warrantless search at the management company’s tenancy office.

I have found they did not require a warrant to gather the residency information. [ 68 ] In any event, Cst. Gross already had information about Mr. Heppner’s Talbot address from a driver’s licence database check. He also recognized the name “Peter Peters” in the email communication as a unique name that had been used by Mr. Heppner in a previous internet luring investigation. The police had the information from Ms. Moxam’s email communications. The content of those communications support, at minimum, Mr.

Heppner was soliciting sexual services for consideration and that he expected her to submit to “extrem ( sic ) hard core rape abuse” for that consideration. The police had taken a videotaped statement provided by Ms. Moxam. They had matched identifying information in Ms. Moxam’s emails to an email and phone number on Astroid Management’s tenancy records.

I find these facts amply provide reasonable grounds for Mr. Heppner’s arrest. Was the warrantless entry into Mr. Heppner’s apartment a breach of Mr. Heppner’s s. 8 rights? [ 69 ] Mr. Heppner argued warrantless entry by police into his home was a breach of his s. 8 rights. He says the highest level of privacy a person enjoys is in their own home. He argues there was no explicit consent or exigent circumstances that required the police to enter his home. [ 70 ] The police had grounds to arrest and Mr. Heppner was properly arrested in the hallway, just outside of his apartment.

He asked the police if he could return into his apartment to shut off the stove and turn off the TV. The police determined this was a reasonable request and told him they would have to accompany him, as he was under arrest. I find this was reasonable as Mr. Heppner was now detained, they needed to maintain custody of him and watch him for officer safety. The entry was not as a result of a demand or request by the police but rather at the request of Mr. Heppner. Both Cst. Gross and Cst. Robbins testified their purpose in going to the apartment was not to enter the suite or search the suite.

They saw the request to enter the suite and turn off the stove as reasonable because leaving the stove on would pose a fire hazard. Mr. Heppner did not have shoes on, they also felt it was reasonable for him to put on some shoes before being taken to the police station. [ 71 ] I distinguish the facts before me from those in R. v. Alcantara 2012 ABQB 341 where Mr. Alcantara did not invite the police into his home. In Alcantara , the police stepped across the threshold to advise Mr. Alcantara he was under arrest. Those facts are also distinguishable from the facts before me. The police testified Mr.

Heppner stepped outside into the hallway. He was advised of his arrest for sexual assault and handcuffed. He then requested to re-enter the suite to turn off his appliances. The handcuffs were removed to facilitate his request. The police testified if Mr. Heppner had not requested to return to his suite, they would have ensured the suite was secure, that is locked, and then taken him to the police car. [ 72 ] I also distinguish the facts in this case from those before the Supreme Court in R. v. Paterson 2017 SCC 15 .

In Paterson the police attended the accused’s residence as a result of a 911 call about an injured woman. The woman had already been taken to the hospital. In speaking with Paterson at the apartment door, police could smell marihuana. At police request, the accused agreed to hand over the marihuana roaches to police who explained they would do a “no case” seizure. When Mr. Paterson tried to close the door to retrieve the roaches, the officer placed his foot in the door and said he would have to accompany the accused for officer safety. Once inside the suite, police observed firearms and a bulletproof vest.

The Court concluded these facts did not give rise to exigent circumstances justifying a warrantless entry into the suite. It is clear, Mr. Paterson did not invite the police into his residence and the police entered his residence to seize evidence. These two key features distinguish that case from the one before me. [ 73 ] The police entering Mr. Heppner’s apartment after he was arrested did not amount to a breach of s. 8. Was the warrantless seizure of the cell phone a violation of Mr. Heppner’s s. 8 Charter rights? [ 74 ] Cst. Gross and Cst. Robbins testified they entered the apartment to watch Mr.

Heppner as he was under arrest and in their custody. They testified they needed to ensure he did not grab a weapon or lock himself in the suite once he was under arrest. Mr. Heppner shut off the stove and was looking for the remote to shut off the TV. The livingroom area was just beyond the entry way of the apartment. As they stood there, both of them testified they heard a notification such as one would hear when a text message is received on a cell phone. [ 75 ] Cst. Gross testified he heard one sound and Cst. Robbins testified she heard three or four. I note the discrepancy but did not find it significant.

I concluded it was the natural effect of time on memory, where different people will remember the same event in different ways. What is significant is that both were confident the sound they heard was a cell phone alert indicating an incoming message. [ 76 ] Cst. Gross testified he said, “What’s that?” Mr. Heppner replied it was the TV. Cst. Gross said he was 100% certain it was not the TV so he said, “No, that’s not it, it’s a phone, where is it?” Mr. Heppner pointed to an armoire. Cst. Gross opened the top drawer of the armoire and saw a cell phone that was powered on.

He seized the phone because he knew that Mr. Heppner was not to be in possession of cell phones connected to the internet. He directed Mr. Heppner to unlock the phone with his fingerprint. He saw that the cell phone was open to “Plenty of Fish”, an online dating site. Once the phone was unlocked, he went to settings and turned the lock feature off as he knew he would be applying for a search warrant for the phone. He testified he did this as an unlocked phone would facilitate the execution of a search warrant for the phone by the tech crimes unit. [ 77 ] I agree with Mr.

Heppner’s argument he did not consent to this search. However, the police did have other lawful authority to search and seize the phone once it made its presence known. I have found the police were lawfully in the apartment, as they were entitled to accompany Mr. Heppner who was lawfully under arrest to keep him and themselves secure. [ 78 ] Cst. Gross knew the accused was bound by a recognizance which included the following conditions: #4 Not to use or have any access to a computer as defined in

section 342.1(2) of the Criminal Code of Canada or access to any internet service or other digital network which includes but is not limited to a device such as a mobile phone except as he may use solely for work purposes. #5 Not use, possess or own any computer system or device that is capable of accessing the internet; #8 Submit to any demand by a peace officer without warrant or without reasonable or probable grounds to search your person, residence or vehicle you own, operate, control or possess for the purpose of verifying compliance of the within conditions up to twice a month during daylight hours. [ 79 ] I conclude the condition of the recognizance allowed him to search for and seize the phone when it made its presence known. [ 80 ] I further conclude the cell phone could be seized under the common law authority of the plain view doctrine.

In R. v. Spindloe

(2001) 2001 SKCA 58 , 154 C.C.C. (3d) 8 (Sask. C.A.) and R. v.

Jones 2011 ONCA 632 at para. 55, the Court reviewed theplain view doctrine and set out the following requirements for the doctrine to apply: 1.) The police must lawfully be in a position from which to have the view; 2.) The nature of the evidence as associated to a criminal offence must be immediately apparent; 3.) The officer must discover the evidence inadvertently; 4.) It encompasses only the authority to seize the evidence and not a further exploratory search of other related evidence. [81] I have already concluded above the police were lawfully in Mr. Heppner’s apartment because he was under arrest.

I concludethat both Cst. Robbins and Cst. Gross concluded it was a cell phone when they heard the characteristic ping of an incoming message. This sound and their experience with such a sound, a sound I conclude a vast majority of people could easily identify, indicated it wascoming from a device connected to the internet. I also find Cst. Gross’ questions about the sound occurred spontaneously. His secondquestion reveals his honest conviction and belief that it was a cell phone. When Mr. Heppner said it was the TV, Cst.

Gross disagreedand said, “it is a phone.” While he said he could not be 100% certain it was a phone until he saw the phone, he also said he was “prettyconfident” it was a phone. The standard the police must meet is one of reasonable grounds not one of 100% certainty. (see Balatoni atpara. 38, referring to Texas v. Brown, 460 U.S. 730 (U.S. Tex., 1983)). [82] I note that in R. v. Balatoni 2003 Carswell Ont 5982 (Ont. S.C), a firearms trafficking investigation, the sounds heard were ofbanging and clanging metal, some of which sounded hollow, from a basement workshop.

The next day, the accused’s spouse carried asuitcase and box from the residence. She was arrested and contraband was located. The Court concluded at paragraph 67, the noisesoverheard by police “signaled the potential destruction or removal of evidence. (my emphasis)” I find this supports my conclusion that100% certainty as to what the sounds indicate is not the standard legally required. [83] In this case, the sound, as evidence, was discovered inadvertently. Both officers testified they did not attend the apartment withthe intent or purpose of searching the apartment. [84] And finally, Cst.

Gross opened only one drawer in an armoire and discovered the phone. He said, when he heard the sound, hehad a “pretty good idea where it was.” The police did not open any other drawers or search any other areas of the apartment. [85] In Balatoni, the Court considered the analogy of the plain view doctrine to sounds police could hear from a room probe pursuantto a judicial authorization allowing the interception of private communications. Dawson J. relies on the following statement from R. v.Lauda (1998) (ON CA), 122 C.C.C. (3d) 74 (Ont. C.A.) at para. 26: . . .

Although it appears that the Canadian authorities have applied this doctrine in the context of tangible objects discovered during theexecution of a search and seizure warrant (Fontana op. cit., 377-84), the American authorities suggest that the doctrine applies to anyevidence detected when a law enforcement officer is able to detect something by utilization of one or more of his or her senses whilelawfully present at the vantage point where those senses are used (La Fave, Search and Seizure: A Treatise on the Fourth Amendment, Vol. 1, 3rd ed. (St. Paul, Minn.: West, 1996 at 395 et seq).

The Court in Lauda then admitted evidence of visual surveillance of the accused tending a marihuana patch, intangible evidence, byanalogy to the plain view doctrine. [86] This supports my conclusion the ping of the phone can be analogized to the plain view doctrine, like a plain hearing doctrine,and justified the targeted search and seizure of the cell phone. Were Mr. Heppner’s s. 10 rights violated when Cst. Gross asked him where the phone was? [87]

Section 10(

b) confers the right of the accused to have access to counsel, after being arrested or detained. Police are required toensure the right to counsel is implemented before they seek to question the accused person, R. v. Prosper, (SCC), [1994]3 S.C.R. 236. [88] I find the questions posed by Cst. Gross did violate Mr. Heppner’s 10(

b) rights because he had not yet had an opportunity tospeak to counsel and the questions required him to incriminate himself. The moment Cst. Gross and Cst. Robbins heard the sound,knowing that Mr. Heppner was bound by a recognizance prohibiting his possession of items like a cell phone, Mr. Heppner was entitledto be advised of the change in his jeopardy and be afforded his right to counsel, including the opportunity to call a lawyer before he wasquestioned, R. v. Sinclair, 2010 SCC 35 , [2010] 2 S.C.R. 310. [89] I find there is a link between the 10(

b) violations and the seizure of the cell phone, R. v. Wittwer, [2008] 1 S.C.R. 235, R. v.Goldhart, (SCC), [1996] 2 S.C.R. 463. Pursuant to 24(2), I would exclude the answers to the questions posed by Cst.Gross because they are a serious violation as they engage the principle against self-incrimination. As noted in R. v. Grant 2009 SCC 32,there is a presumptive general (although not automatic) exclusion of statements obtained in breach of the Charter (at para. 92). [90] However, I do not exclude the seizure of the cell phone. I distinguish the facts before me from those in R. v.

Clarkson, (SCC), [1986] 1 S.C.R. 383 and R. v. Black, [1989] 2 S.C.R. where lengthy interrogations were conducted by the police inviolation of the right to counsel. In the case before me, the right to counsel breach was transient, occurred spontaneously in reaction tothe sound of the text notification and had a trivial impact on Mr. Heppner’s interests protected by 10(b). I find the police wouldinevitably have found the cell phone, even without Mr. Heppner pointing to the drawer. Cst.

Gross testified, the sound came from thearmoire to his immediate right and he had a “pretty good idea where it was.” Ironically, the two pointed questions to Mr. Heppner, ifanything narrowed the search by police to only one drawer, minimizing the invasion of privacy of Mr. Heppner’s property. The Crownis not seeking to rely on the answers given by Mr. Heppner. The police otherwise had authority to search for and seize the cell phone soI would not exclude the cell phone.

Were Mr. Heppner’s s. 8 rights violated by an overbroad warrant? [91] A warrant is to authorize seizure of certain identifiable things. In R. v. Du 2004 ABQB 849 the Court convenientlysummarized the principles as follows at para. 12: The description of the things to be searched for operates as a guide for the officers conducting the search. A jurisdictional error is madewhere the description is either so broad or so vague so as to essentially allow the officers conducting the search carte blanche to searchfor any evidence wherever it may be found within the building.

Some of the applicable principles set out in the cases include: 1. peace officers should be given some latitude in describing things as they are still at the investigative stage; 2. the description may be limited to classes of documents if it is sufficiently limited to the crime for which they are alleged to affordevidence; 3. the Information sworn to obtain the Search Warrant must be read together with the Search Warrant; 4. the nature of the offence(

s) must be considered; 5. in considering all of the factors, appropriate inferences may be made; 6. there need not always be a time limit set out with respect to the documents sought; 7. overly broad or vague descriptions can be severed leaving validly described things remaining; 8. each case must be considered on its own facts. (see R. v. Church of Scientology (No. 6) , supra; Lubell v. R. (1973), (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.); R. v.Silverstar Energy Inc., [2004] B.C.J. No. 1767 (B.C. S.C.); R. v. Sanchez (1994), (ON SC), 93 C.C.C. (3d) 357 (Ont.Gen. Div.); R. v.

PSI Mind Development Institute Ltd. (1977), (ON SC), 37 C.C.C. (2d) 263 (Ont. H.C.)). [92] In Du the Court found a warrant overbroad when it did not contain any time restrictions whatsoever. The warrant as wordedallowed the police to seize all documents from a target home. [93] In this case, the search warrant for the cell phone authorized seizure of “information and data, included but not limited to therelevant data such as emails, photographic images, video, internet history, and application data and messages” contained within thephone.

The description is overbroad as it allows for the seizure of all information and data, without restriction or limit, even that whichis not relevant: “…included but not limited to the relevant data…”. [94] Cst. Gross testified the warrant he sought was for a “cell phone dump”. The phone was forwarded to the Tech Crimes unit whowould extract all the data from the phone and then provide it to him in a format he could read. He reviewed this information looking forevidence related to the offence.

It was his understanding there was no way to filter the results to minimize the amount of material he hadto look through or to restrict it to only emails for example. This information was not included in the Information to Obtain (“ITO”) thesearch warrant. It would be a better practice to include this information so that the authorizing justice understands the scope of thesearch. [95] I have found the trial decisions in R. v. Nurse and Plummer 2014 ONSC 5989 and R. v. Sinnappillai, 2019 ONSC 5000 helpfulas both cases involved “data dumps”. The issue before the Court in Nurse and Plummer was the manner of search.

The police hadestablished grounds to look for the data and the investigating police force intended to look for “correspondence and communications.” The Court concluded the manner of searching was overbroad when the data examined included web browsing history, photographs andcookies. The evidence before that Court was that the RCMP who retrieved the information from a phone would have had the softwarecapability to extract correspondence and communications and not provide a full data dump.

Ultimately, after conducting a 24(2)analysis, the trial judge did not exclude data described as correspondence and communications but excluded all other data retrieved. [96] In Sinnappillai, an internet luring case, the Court considered a challenge to the validity of two search warrants. The practicesreflected in that case reveal more limited searches of a cell phone. The initial warrant sought “phone logs, web browsing history, and

text messages with the undercover officer for the 25 th of March 2016” (at para. 19). The evidence before the Court in that case was similar to the evidence of Cst. Gross in that technologically it was not possible to extract only a portion of the contents of a phone. In order to maintain the integrity of the data, a complete mirror copy of all the data on the phone was created. This copy was then searched for the specific data authorized by the search warrant. The investigator disclosed this investigative plan in the information to obtain.

This allowed the reviewing judge to conclude the warrant was issued by the justice of the peace, knowing of the search protocol. [ 97 ] While the Supreme Court did not require a search protocol in R. v. Vu 2013 SCC 60 , it did emphasize the law requires a search to be no more intrusive than necessary. I note that in Vu , the warrant authorized the search of “documentation identifying ownership and/or occupancy of the property”. There were limitations placed on the types of documents that police could look for. [ 98 ] Ms.

Inness brought a facial attack on the warrant based on the description of the data police were looking for and the information contained in the ITO. The ITO does not contain any information about photographs or videos or provide grounds as to why police could search for those items. Cst. Gross explained in his testimony, his experience is in sexual exploitation investigations, it is not uncommon to find photos being taken to further the offence. He testified in an earlier internet luring investigation of Mr. Heppner, a photo had been discovered on his phone. This evidence does not appear in the ITO.

The additional evidence provided by Cst. Gross’ testimony as to why he included these items is not relevant or admissible at this stage, when the attack on the warrant is a facial one. His evidence would be improper amplification. In R. v. Araujo 2000 SCC 65 the Supreme Court said at para. 59: . . . The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of everyone’s privacy interests ( Hunter v.

Southam Inc . , supra , at p. 160), amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. . . . Cst. Gross should have included the grounds in the ITO to support a search for photographic or video evidence. This he did not do. [ 99 ] I find the warrant is overbroad as it allows for the search of all data and information, including but not limited to relevant data. I have not yet seen or heard the evidence that resulted from the execution of this search warrant.

So I will defer my ruling on 24(2) on this issue until the end of the trial. Some of Cst. Gross’ evidence could be relevant to a 24(2) analysis where I need to assess the seriousness of the Charter infringing conduct which can include the good faith of the police officer. [1] Conclusion [ 100 ] Mr. Heppner’s s. 8 rights were not violated by broad investigative powers in The Vulnerable Persons Act .

Section 8 does not require a warrant or reasonable grounds standard for investigative or regulatory investigations. The regulatory investigation by Ms. Arnason, a CLDS investigator, did not turn into a criminal investigation and she did not become an agent for the police in gathering information. Mr. Heppner does not have a reasonable expectation of privacy in tenancy records kept by a property management company and therefore the police did not breach his s. 8 rights by collecting that information without a warrant. Police had lawful authority to enter Mr. Heppner’s apartment because he was under arrest and Mr.

Heppner asked to return to the apartment; the police did not breach his s. 8 rights by following him. The police should not have asked Mr. Heppner questions when they heard a cell phone, so the answers to the two questions posed are excluded. The police had lawful authority to seize the cell phone when they heard it make a sound and did not violate Mr. Heppner’s s. 8 rights by seizing the cell phone. The search warrant for the seized cell phone did violate Mr. Heppner’s s. 8 rights by being overbroad in the description of the items police could search for. “ORIGINAL SIGNED BY:” Associate Chief Judge Anne Krahn