R. v. E.F., 2022 MBPC 53

CITATION: R. v. E.F., 2022 MBPC 53 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) V. Hebert ) ) for the Crown - and – ) ) ) E.F. ) ) C. Pauls for the Accused ) ) ) Judgment delivered: ) November 4, 2022 Restriction on Publication: Pursuant to s. 486.4 of the Criminal Code , any information that could identify the complainant or the accused shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. Corrected Judgment: An erratum was filed on November 15, 2022.

The text of the initial judgment is reproduced here with the correction, and the erratum is appended at the end of this Corrected Judgment. HARVIE, P.J. RULING ON THE VOIR DIRE INTRODUCTION [ 1 ] The accused E.F. (“E.F.”) or (“the Applicant”) is charged that between the dates of May 25 and June 17, 2020 he committed a sexual assault contrary to

Section 271 of the Criminal Code (the Code ”) and that he made a visual recording of the complainant without her consent contrary to Section 162(5) of the Code . The Applicant challenges the admissibility of evidence obtained as a result of the search and seizure of two cellphones alleged to be his, asserting a series of Charter

Section 8 breaches. Pursuant to Charter Section 24(2) he argues that the evidence should be excluded. BRIEF OVERVIEW OF THE FACTS [ 2 ] On June 19, 2020 at 11:46 p.m. Selkirk Royal Canadian Mounted Police (“RCMP”) received a “walk-in” complaint from the complainant CW who said that E.F was her roommate and that he had sexually assaulted her while she was sleeping at their residence in Selkirk, Manitoba. CW advised that she had located an unfamiliar Samsung cellphone which was not password protected.

When she reviewed the images on the cellphone, she identified multiple sexual recordings and photographs which she said were of herself and a mutual friend KG. She provided the cellphone to the officer. [ 3 ] On June 20, 2020 at 1:30 a.m. E.F. was involved in an altercation with CW and was arrested at the dwelling house. An LG cellphone was located and seized incidental to arrest. He was interviewed and eventually admitted ownership of both the seized LG phone and the Samsung phone turned in by CW. Both cellphones were lodged in a locker at the RCMP station in Selkirk.

On June 26, 2020 a Report to a Justice was filed by the investigating officer pursuant to Code

Section 489.1(b)(ii). [ 4 ] On September 17, 2020 a four count Information was sworn setting out charges related to the complainant CW, as well as her friend KG. An application brought by defence counsel for severance of the counts respecting the individual complainants was granted and separate trial dates have been set. [ 5 ] On October 16, 2020, RCMP Constable (“Cst.”) Gavin Lee (who was not the initial investigating officer) swore an Information to Obtain a Search Warrant (the “ITO”) for the two cellphones and warrants for each cellphone were granted on October 17, 2020.

On October 19, 2020 the two cellphones were transported to the RCMP Digital Forensic Services and “placed in a queue”. On

January 8, 2021 the cellphones were removed from the Digital Forensics Services locker and the analysis was commenced andcompleted over a two day period. [6] Crown seeks to have introduced into evidence the images obtained as a result of the search and analysis of the two cellphones.A total of 84 images purportedly taken between July, 2017 and March, 2020 were retrieved. [7] At the voir dire Crown counsel called the original arresting officer as well as Corporal (“Cpl.”) Jennifer Warkentin fromDigital Forensic Services who downloaded the contents of the cellphones and completed the analysis. Cst.

Lee, the Affiant whocompleted and swore the ITO, was not called to testify. THE ISSUES Seizure and detention of the Samsung Cellphone and subsequent Report to a Justice [8] The Applicant challenges the initial seizure of the Samsung cellphone without warrant, as well as the ongoing detention ofboth cellphones. He submits that the RCMP failed to comply with the provisions of Code

Section 489.1 and 489.2, arguing that the initialReport to a Justice was not completed “as soon as is practicable”. He also argues that the items ought to have been the subject of afurther Report to a Justice after the expiration of the three month detention period set out in Code Section 490(2). [9] I am satisfied that the initial seizure of the Samsung cellphone was lawful and the circumstances did not require police toimmediately obtain a warrant in order to retain it. When the investigating officer was provided the phone by the complainant, she clearlyadvised him that it contained evidence of a crime.

At that point the officer refrained from searching the phone or looking at any of theimages it purportedly contained. The officer merely detained an electronic device which may have contained evidence of a crime.Further, when the accused was arrested, within hours of the Samsung’s seizure, he acknowledged ownership of the cellphone. Thearresting officer continued to refrain from searching the cellphone, opting instead to eventually complete a Report to a Justice, and laterto obtain a warrant for a forensic analysis of the phones.

I am satisfied this manner of detaining and handling the evidence wasappropriate and it was not necessary for the officer to immediately obtain a warrant to retain possession of the cellphone. [10] I am also satisfied, based on the totality of the evidence, including the time and circumstances of the arrest on June 20, 2020and the subsequent investigation, that the Report to a Justice was completed “as soon as is practicable”. While unfortunate, the delayuntil June 26 for the completion of this task is reasonable in the context of the investigation as a whole.

This includes the fact that theinitial meeting with the complainant was an unscheduled “walk in” and that the accused was arrested very quickly and unexpectedlyafter the initial meeting with the complainant. This investigation unfolded quickly and there was much paperwork to complete.

Under allthe circumstances the delay in completing the report was adequately explained and was reasonable. [11] Further, I am satisfied that the ongoing detention of the items was authorized by Code Section 490(2)(b), which states that acontinued detention of items seized is authorized where “proceedings are instituted in which the thing detained may be required”. In thiscase, the Information commencing the prosecution was sworn on September 17, 2020, a date prior to the expiration of the three monthdetention authorized under Code

Section 489.1(2). By operation of these sections, the continued detention of the cellphones wasauthorized and the filing of a further Report to a Justice was not required. The Breadth of the Search Warrant [12] The Applicant argues that the wording of the search warrant was overly broad for several reasons. First he argues that althoughthe charges indicate that the offences were committed during a period between May 25 and June 17, 2020, the warrant itself does notlimit the search by date.

Further, he argues that the warrant allowed the search of information on the cellphones far beyond the searchfor the images and videos supporting the charges. He submits that cellphones are items which can contain a significant amount ofpersonal information and that the warrant ought not to have been “open-ended”. As such, he challenges whether the warrant draftedought to have been granted. [13] The appropriate standard to be applied by a Judge reviewing an ITO and the subsequent issuance of a warrant was summarizedin R. v.

Campbell, 2011 SCC 32 at paragraph 14: In order to comply with s. 8 of the Charter, prior to conducting a search the police must provide “reasonable and probable grounds,established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search”(Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 168).

The question for a reviewing court is “not whether thereviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence” to permit anissuing justice to authorize the warrant (Morelli, at para. 40). [14] As noted by the Supreme Court in R. v. Araujo, 2000 SCC 65 at paragraph 52: As this Court confirmed in Bisson, supra, the reviewing judge must carefully consider the existence of sufficient reliable information,that is, information that may reasonably be believed on the basis of which the authorization could have issued. And at paragraph 53:

Other appellate court jurisprudence confirms this understanding. In the context of reviewing a search warrant, appellate courts havelooked to whether the authorization could have issued: e.g., Mitton v. British Columbia Securities Commission (1999), 1999 BCCA 186, 123 B.C.A.C. 263; R. v. Allain (1998), (NB CA), 205 N.B.R. (2d) 201 (C.A.), at p. 217; and R. v.Krist (1998), (BC CA), 113 B.C.A.C. 176, at p. 179. But they look at this in context.

For example, in R. v.Monroe (1997), (BC CA), 8 C.R. (5th) 324 (B.C.C.A.), at p. 333, Esson J.A. stated that, after looking for whetherthere was sufficient grounds on which the judge could have authorized a warrant, “The judge was then required to assess the evidenceplaced before the justice, in the light of the evidence brought out at trial, in order to determine whether, after expunging any misleadingor erroneous information, sufficient reliable information remained to support the warrant” (emphasis added). [15] As further noted, the authorities “stress the importance of a contextual analysis” and remind reviewing Judges that “errors,even fraudulent errors, do not automatically invalidate the warrant”. [16] At first blush, the lack of dates limiting the range of search of the cellphone is noteworthy.

According to the ITO, thecomplainant CW advised that she had moved in with E.F. as a roommate at the beginning of June 2020, and further that E.F. confirmedduring his police interview that CW had been staying with him since May 25, 2020. CW also identified that the images depicted on thephone were consistent with the background and furnishings of their present residence. It was for that reason that the offence dates wereselected by the investigating officer.

That would suggest some limitation by date might have been appropriate. [17] However, the ITO also indicates that according to CW the parties had known each other for approximately five to six years,often drinking together during that period of time. Equally significant is the fact that in drafting the ITO, the affiant consulted andquoted Cst. Gord Olson, a member of the Manitoba RCMP Internet Child Exploitation Unit (the “ICE Unit”). Cst. Olson providedsignificant information respecting the forensic extraction process for cellphones as performed by the RCMP Digital Forensic ServicesUnit.

It is perhaps not surprising that Cst. Olson urged the issuance of a warrant as broadly worded as possible, in part to assist inconfirming the ownership of the cellphones. More importantly, he warned that “in order to conduct an effective forensic analysis of thedata, it is not possible to limit examinations by date.

Not every file and activity undertaken by computer is stamped with time and date.” He went on to advise that such searches which are not date limited allow not only for the identification of incriminating evidence but canalso help to “exclude innocent people who might otherwise be wrongly suspected.” The assertions in the ITO were confirmed by the vivavoice evidence of Cpl.

Jennifer Warkentin who conducted the digital analysis of the cellphones. [18] I am satisfied that, despite the specific dates in the information respecting the commission of the offences, the lack of atimeframe in the warrant limiting the search of the cellphones is supported by the evidence in the ITO. Given the totality of theinformation contained in the ITO, it was open to the issuing Justice to grant a warrant that did not specify dates. [19] Defence counsel further objects to the breadth of the warrant, arguing that its wording allowed for the search of items farbeyond the images complained of. Indeed, Cpl.

Warkentin requested and reviewed a copy of the ITO to assist in refining her search asshe described the warrant itself as being “wide open”.

The warrant for each cellphone had identical wording, authorizing a search asfollows: …including but not limited to email, text messages/short message service (SMS), other text based communication, call log information,location data including GPS, images, video, internet artifacts including web browser history and bookmarks, calendar entries, contactand/or address book entries, installed applications and their applicable databases, stored password information, connected wirelessnetworks including Bluetooth devices and digital artifacts relating to the aforementioned items including evidencing knowledge andcontrol of any of this data. [20] An assessment of this ground will begin with a few preliminary comments.

As technology relating to cellphone capabilities anduse continues to expand, so too does the amount of personal information that may be contained within a cellphone. Cpl. Warkentinconceded in her evidence that cellphones can contain a vast array of personal information, including banking, medical and other corepersonal information which may have no relevance to the particular investigation.

It is important to remember, therefore, that there mustbe a clear link between the information outlined in the ITO and identified in the warrant and the information which is reviewed as a partof the actual search. [21] Interestingly, as already noted, Cpl. Warkentin requested and reviewed a copy of the ITO to assist in refining her search.Although the warrant was broadly worded and covered a range of information and applications, I am satisfied that there was sufficientreliable information before the issuing justice to grant the warrant as drafted.

The ITO contains extensive references to the informationprovided by Cst. Olson as to the need for a broad based search of the cellphones. While another justice reviewing the ITO, and beingaware of the breadth of personal information that might be on a cellphone, may have sought fit to limit the scope of the search, that is notthe legal test to be applied. In the words of Campbell, supra, the question is whether there was “sufficient credible and reliable evidence”to permit the issuance of the warrant.

On a review of the ITO as a whole, I am satisfied that such evidence was before the issuing justice. [22] I am mindful as well that none of the items the Crown wishes to introduce into evidence go beyond video and photographicimages, the very items initially identified by the complainant. Had the Crown sought to introduce evidence far beyond that which wasidentified by the complainant and articulated in the ITO, different issues would have to be considered. On the facts of this case, I amsatisfied that the warrant was not overly broad and could have been issued.

Timing of the Execution of the Warrant [23] As noted earlier, while the search warrant was issued on October 17, 2020 and the items were delivered to the RCMP ForensicUnit on October 19, 2020, the analysis of the cellphones did not commence until January 8, 2021. The Applicant argues that the searchwas conducted outside the timeframe of the warrant which states on its face that “warrant expires October 24, 2020 at 9:00 p.m.” Crowncounsel argues that the timeframe related only to the delivery of the cellphones to the RCMP Digital Forensic Services, not the

completion of the forensic analysis. [ 24 ] In order to conduct a contextual analysis of the warrant expiry date, it is helpful to consider the information contained in the ITO. In paragraph 2, the affiant sets out a series of

definitions respecting computer data, going on to define and explain “computer forensic analysis”. The affiant explained that “computer forensic analysis” is broken into two distinct phases, the first being the “acquisition” phase, which involves the “capturing of the contents of the digital media.

A forensically sound image sound image of the digital media is made using specialized hardware and software.” This is followed by the “analysis” phase which involve “the examination of the resulting forensic image for evidence using specialized software capable of recovering active and deleted data as well as data artifacts.” From a plain reading of the ITO, it appears that the affiant was requesting authorization for a three step process: the transport of the phones from the detachment to the RCMP Digital Forensic Services, the acquisition of the data and the analysis of the data. [ 25 ] The ITO concludes with the following paragraphs: 21.

That evidence that does exist in the cellphones can be extracted by means of a complete forensic analysis that is conducted by a Computer Forensic Technician. 22. That a complete forensic analysis is the only means by which investigators can conduct a thorough analysis of the evidence including locating any deleted date/digital artifacts to support the charges listed in this ITO. 23.

I respectfully request the search warrants be granted to search the RCMP detachment main exhibit locker “R4” for the said items, and to perform a complete forensic analysis on the said items: A1(1) Samsung cellphone in an exhibit bag labeled 2020813654PE001 B1(1) LG cellphone in an exhibit bag labeled 2020813654PE002 24. It is further requested that the granted search warrant be valid for a seven (7) day time period from the date it is signed.

It is the intention of the police, however, to execute the granted search warrant as soon as practicable. (emphasis added) [ 26 ] A plain reading of paragraphs 21 through to 24 requests that the transport, acquisition and forensic analysis be completed within a seven (7) day period. It is noteworthy that it was the affiant who suggested the period of seven (7) days for completion of all steps, including the analysis of the data.

Unfortunately, these steps were not completed until 76 days after the expiry of the search warrant. [ 27 ] The Crown argues that the Court should adopt the reasoning in the Ontario Superior Court decision in R. v. Sinnapillai , 2019 ONSC 5000 which referenced the related decisions of R. v. Nurse, 2014 ONSC 1779 and R. v. Neill , 2018 ONSC 5323 and R. v. Yabarow , 2019 ONSC 3669 . In Sinnapillai , Bowsell, J expressed concern about Form 5 of the warrant forms which he described as being “not well suited to searches of electronic devices.

The language used in the form is awkward and, in my view, fails to accurately reflect the nature and terms of the search authorized. A common sense

interpretation of warrants must be brought to bear”. (see paragraph 87) [ 28 ] Cases of this nature are very fact based and are highly dependent on the actual wording of the ITO and the warrant in question. In Sinnapillai , the warrant was described as authorizing police to “attend at central property room at York Region Police Headquarters between 3:00 p.m. on February 14, 2018 and 8:59 p.m. on February 15, 2018 and to retrieve the Samsung cellphone for the purpose of investigation.” The warrant did not, however, require that the actual investigation of the cellphone be conducted within that limited timeframe.

The decisions in Nurse and Neill relied upon the decision of Paciocco, J in R. v. Barwell , [2013] OJ No. 3743 (OCJ) . In Barwell , the warrant “authorized Detective Michael Pelletier “between the hours of 6:00 a.m. and 9:00 p.m., to enter and search for “the computer hard drives” and to bring them before me or some other Justice to be dealt with according to law”. Justice Paciocco noted that “it was unrealistic” for the warrant to be interpreted and that any forensic examination of the computer to have occurred within that same brief search warrant on the face of the warrant. This

interpretation of the warrant was that the time limitations on the timeframe related to the initial search of the accused’s residence and that the warrant period was in place to “minimize the intrusion” to the accused’s private dwelling. [ 29 ] I am not satisfied the same logic applies to a plain reading of the warrant in this case. The cellphones had already been detained as part of the initial investigation and had been in the possession of the RCMP for a number of months.

There was no external limited factors such as the search of a private residence which existed in Barwell . [ 30 ] I do agree that the wording of Warrant Form 5 is very awkward and not well suited to data from electronic devices. But because it is the document which is signed by the issuing Justice and it is what authorizes the police to deal with these particular items,

the wording of this specific warrant is important. In this case, the warrant authorizes the seizure of “goods”, being the “data” from the respective cellphones. The “goods” which were to provide evidence of the offences were said to be “concealed” at the RCMP Selkirk Detachment Main Exhibit Locker ‘R4’.

The Form of the warrant concludes by authorizing the officers to “enter into the said premise and to search for the said items ‘by day’ and to bring same before me or some other Justice.” The confusion which flows from the application of the standard wording of Form 5 to the retrieval, transportation for and the completion of a phone analysis is both understandable and concerning.

Whether it is the police who are relying upon these documents to authorize and guide their actions or an accused who is being advised of the nature, purpose and scope of police authority to deal with seized items, the issuing documents should clearly set out the terms and expectations of the search. [ 31 ] Further, while the warrant indicates an expiry date of October 24, 2020 at 9 a.m., the warrant itself does not specify what is to occur within the seven day period. Crown counsel argues the seven day period applies only to the transportation of the phone for analysis.

This argument fails to take into account the wording of the warrant itself, which specifically indicates a search for “data” from the individual cellphones. Both counsel agree that the warrant authorized a search of the cellphones for the data they contained. There is nothing on the face of the warrant limiting prescribed seven day timeframe to the transportation of the cellphones for the purpose of analysis at a later date. In fact, the transportation of the phones to the RCMP Digital Forensic lab is not even mentioned. I note as well that once she started the process, Cpl.

Warkentin was actually able to complete the acquisition and search of the data on the two cellphones within a two day period. [ 32 ] Further, the timeframe set out in the search warrant was requested by the affiant. In her evidence, Cpl. Warkentin indicated that there was a three month backlog due to staff shortages at the Digital Forensic Services Unit.

If it is intended that a warrant is to authorize both the retrieval and movement of an electronic device and the acquisition and analysis of data, and a time frame for these actions is included, there is nothing precluding an affiant from obtaining information as to the amount of time required for each of these steps. Such information would then allow the issuing Justice to determine whether the timeframes sought is appropriate and reasonable.

It is, after all, a fundamental principle that a warrant will be executed in a manner which is reasonable. [ 33 ] I am satisfied that the warrants were executed during a timeframe which far exceeding the expiry date stated on the face of the search warrants. As such, the execution of the warrants and search of the two cellphones was conducted in breach of the accused’s

Section 8 Charter rights. [ 34 ] It is therefore necessary to consider whether the evidence obtained ought to be admitted or excluded. CHARTER SECTION 24(2) ANALYSIS The seriousness of the Charter infringing state conduct [ 35 ] In R. v.

Grant , 2009 SCC 32 the Court discussed this first line of inquiry as follows: 72 The first line of inquiry relevant to Section 24(2) analysis requires the Court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the Courts, as institutions responsible for the administration of justice, effectively condone deviation from the rule of law by failing to disassociate themselves from the fruits of that unlawful conduct.

The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the Courts to disassociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. The Court went on to consider a “spectrum” of breaches noting that those at the least serious end of the culpability scales are those which are inadvertent, technical, or minor, or which reflect an understandable mistake. [ 36 ] It was clear from her evidence that Cpl.

Warkentin believed that the seven (7) day expiry warrant applied only to the movement of the cellphone from the detachment to the RCMP Digital Forensic Services Unit, and not to the acquisition of the data or its analysis. The basis of that belief is unclear, and was not explored by either counsel. Cpl. Warkentin also explained how requests for forensic analysis were prioritized.

While I take from her evidence that there is a system in place for addressing requests as they arrive, of concern is the fact that she seemed to have relied on that process rather than on the wording of the ITO and the warrant. [ 37 ] Having said that, I find the state conduct in this case to be more akin to that which is technical and reflective of a mistaken understanding of the terms of the warrant. As noted, the confusion is related in part to the manner of drafting and the difficulty in modifying Code Form 5, something for which the officers cannot be fully faulted.

Impact on the Applicant’s Charter Protected Rights [ 38 ] An assessment under this

section line of inquiry requires an evaluation of the extent to which the breach actually impacted the interests protected by the Charter . In this case, having concluded that the warrant was otherwise duly granted, I am satisfied that the delay in the execution of that warrant and the resulting infringement is reduced. [ 39 ] Both counsel agree that the evidence from the cellphones is an important part of the case for the Crown. Delay in the acquisition and analysis of the data can translate into a delay in the overall trial process.

From a practical perspective, it is important to be mindful of the comments of the Supreme Court in R. v. Jordan , 2016 SCC 27 which opens with the following statement: “Timely justice is one of the hallmarks of a free and democratic society”. The Court commented on the public’s expectation that the criminal justice system should bring accused persons to trial expeditiously and that “everyone suffers” when trials drag on for months or years.

This applies to all aspects of the criminal trial process. [ 40 ] Once commenced, the actual analysis of the cellphones only took a matter of days and could have been completed within the timeframe of the warrant. However, I do not have any evidence that the delay of three months in completing the analysis resulted in a

delay of the proceedings. This reduces the impact of the breach on the accused’s Charter -protected rights. Society’s Interest in the Adjudication of the Case on its Merits [ 41 ] This third line of inquiry requires an assessment of the reliability of the impugned evidence, and its importance to the Crown’s case. Grant suggests an inquiry as to “whether the truth seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.” In this case, the evidence is reliable and all agree that it is critical regarding several aspects of the Crown’s case.

The delay in having the cellphones analyzed did not result in a deterioration of the evidence. This line of analysis favours the admission of the evidence. CONCLUSION [ 42 ] I am satisfied that valid warrants were issued authorizing the search of the Samsung and LG cellphones seized as part of the investigation of the accused, but that those warrants were executed outside the warrant expiry date. The search therefore was conducted in manner in breach of the applicant’s Charter

Section 8 rights. [ 43 ] However, when assessing the seriousness of the state conduct, the impact of the breach on the applicant’s interests and society’s interest in adjudicating cases on their merits, I am satisfied that the evidence ought to be admitted in the trial. [ 44 ] The Applicant’s motion for exclusion of evidence is dismissed. “original signed by” Harvie, P.J. CITATION: R. v. E.F., 2022 MBPC 53 Erratum THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) V. Hebert ) ) for the Crown - and – ) ) ) E.F. ) ) C.

Pauls for the Accused ) ) ) Judgment delivered: ) November 4, 2022 Restriction on Publication: Pursuant to s. 486.4 of the Criminal Code , any information that could identify the complainant or the accused shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence.

HARVIE, P.J. E R R A T U M For purposes of clarity, the following amendment has been made to paragraph 22 of the above noted judgment: 1. The word “ not ” has been inserted in the last line of paragraph 22, so that the last sentence of that paragraph now reads: [22] . . . On the facts of this case, I am satisfied that the warrant was not overly broad and could have been issued. DATED this 15 th day of November, 2022. “original signed by” Harvie, P.J.