R. v. Groves, 2011 ONCJ 350

COURT FILE No.: DATE: Citation: R. v.

Groves , 2011 ONCJ 350 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — William Groves Before Justice Heather Perkins-McVey Reasons released on June 22, 2011 Kevin Phillips.............................................................................................................. for the Crown Gary Barnes...................................................................................... for the accused William Groves PERKINS-McVEY, J.: [ 1 ] This trial commenced with a Charter application pursuant to s.8 of the Canadian Charter of Rights and Freedoms alleging that the accused’s rights to be free of unreasonable search and seizure had been violated. [ 2 ] Both Counsel agreed that the facts as set out in paragraphs 1 to 19 of the applicant’s Charter application, as well as the investigative action of Constable Fernando Vieira , which was filed as Exhibit 1, and the evidence of Detective Leanne Blais, form the evidence for consideration on this application.

Factual Background [ 3 ] On April 3, 2001, Mr. Groves was sentenced to a conditional sentence for sexual interference and initiation to sexual touching. This conditional sentence was to end April 6, 2009. The conditions of the sentence included the following terms:

a) to answer the door and telephone to allow the Ottawa Police Service and your supervisor to confirm that you are complying with this order

b) not to possess or access any electronic device that has the capacity to connect to the internet, including computers, cellular telephones, blackberries, mp3 players, or the equivalent thereof, except with the written consent of your supervisor expressly identifying the device and purpose for which it is permitted to be used. [ 4 ] On March 19, 2008, the accused was residing at 8-311 Blake Blvd. with his roommate Anne Jaggy. Ms. Jaggy was aware of the conditions of the accused’s conditional sentence that he could not access the internet or possess any device that would allow him access to the internet. Ms.

Jaggy did not allow the accused to access her internet ready devices, and kept her internet modem and computer in her room when she was not home. [ 5 ] Ms. Jaggy had been suspicious of the accused entering her room while she was at work and using her modem to access the internet. On March 19, 2008, she came home from work and unsuccessfully attempted to log on to the internet. When she called a technician to fix the problem, she was told that a second modem within the apartment was accessing the internet which would cause her modem not to work. [ 6 ] Ms. Jaggy confronted the accused about this while in his room.

When she opened the door, she noticed he had a web cam on his laptop. She further confronted him attempting to see if his laptop was connected to a modem. The accused did not allow Ms. Jaggy the opportunity to check if he was connected to the modem. An altercation ensued which caused her to contact police. [ 7 ] Constables Vieira and Hart confirmed through a CPIC check that the applicant was under the afore mentioned conditions. The officers attended the residence at 11:20pm. The officers knocked at the door loudly; when no one answered, Ms. Jaggy provided a key to the residence.

The officers noticed a light coming from Mr. Groves’ bedroom. When attempting to open the door, Constable Vieira noticed the door was barricaded. The officer identified himself and requested that the door be opened. Once the accused opened the door, the officers could see in plain view a number of items the applicant was prohibited from possessing such as:

a) A laptop that was turned on and connected to speakers

b) A desktop computer, monitor, keyboard, speakers and mouse

c) Two cell phones which could be used to access the internet

d) Floppy discs

e) Webcam in the open closet [8] On March 19, 2008, these items were seized incident to arrest and lodged in the central property room for evidence and possiblefurther investigation. The accused was arrested for breaching his conditional sentence order, and the report was set to the sexual assaultchild abuse (SACA) unit for review [9] Detective Blais was assigned the file from the SACA unit. Detective Blais attempted to follow up with the witness Anne Jaggy butwas not able to reach her.

On July 20, 2008, Detective Blais turned the file over to Detective Melchiorre of the High Tech Crime Unit.Detective Blais gave evidence that when she turned the file over to Detective Melchiorre, she asked him to check the computer to see ifthe accused has been connecting to the internet. [10] On August 12, 2008, Detective Villeneuve of the Ottawa Police High Tech Crime Unit took possession of the laptop. DetectiveVilleneuve started a forensic analysis of the contents to determine what the accused was doing online.

Detective Villeneuve was underthe belief as result of discussion that the search of the computer was authorized as a search incident to arrest. After searching thecomputer, Detective Villeneuve categorized certain of the 152,000 images as child pornography and found 38 movies also categorized aschild pornography. [11] Detective Blais testified that at the time the computer was turned over to the High Tech Crime Unit, she believed there wascase law allowing the search of items seized incident to arrest and that the case law allowed there to be a delay to allow experts toexamine the item.

Detective Blais said she discussed this with Detective Melchiorre and that she is always mindful of when judicialauthority is required to search. Detective Blais gave evidence that at that time in 2008, she had not yet taken the police search warrantcourse, although she had been a police officer since 1988 and had asked to take the course previously. [12] Detective Blais said she learned about search warrants by getting information from other officers, by reviewing warrants othershad drafted and sometimes from orders from the chief’s office or legal department.

She indicated that she took the search warrant coursein August 2009 and that around that time she became aware that there was a necessity to get a warrant to search the computer in question.She could not say if she learned this at the course or not. [13] There was evidence from Detective Blais that in October 2008 prior to laying further charges for possessing child pornography,Detective Melchiorre spoke to a Crown who said because no search warrant was obtained that no charge should be laid. Detective Blaissaid at some point after October 2008 she received an inquiry from the Court

Section inquiring what was happening in the investigationand whether a further charge was going to be laid against Mr. Groves. [14] As such, Detective Blais contacted Detective Melchiorre to find out what was happening on this file, she learns of thediscussion he had with a Crown, the name of whom he could not recall. Nor could Detective Melchiorre recall the information he hadprovided to the Crown which led to the Crown providing that opinion. There are no notes of this meeting.

As a result, in February/March2009, Detective Blais decides to consult Assistant Crown Attorney Marie Dufort and present all the relevant facts as Ms. Dufort had beenthe Crown on the original file for which Mr. Groves was on the conditional sentence and had personal knowledge of the file. DetectiveBlais received advice that this was a legal issue and to proceed to lay the charge.

As result on March 23, 2009, the accused was arrestedat the Ottawa Courthouse while attending court on other matters for possession of child pornography. [15] Detective Blais stated that when the charge of possession of child pornography was laid in March 2009, she still believed theallegation of breach of the conditional sentence was still before the courts. Detective Blais was cross-examined at length about herknowledge of Mr. Groves’ breach allegation and her understanding of conditional sentences in general.

She showed no knowledge aboutwhat had happened to the breach charges and insisted that in March 2009, she was still looking for evidence to support the allegation ofbreach. [16] Detective Blais showed a similar deficit of knowledge about conditional sentences in general. Similarly, when discussing herknowledge of search warrants, she was unable to recall the case law she was relying on which authorized the search of the computerincident to arrest allowing delay for that search by experts and showed limited knowledge of search warrants in general.

Search Analysis [17] The search of the laptop computer was clearly a warrantless search. In Hunter v. Southam (SCC), 1984 SCC 33, [1984] 2 S.C.R. 145, the Supreme Court of Canada held that a warrantless search is prima facie unreasonable. The SupremeCourt has held that once an accused has demonstrated that the search was warrantless, the Crown has the burden of showing that thesearch was, on a balance of probabilities, reasonable. [18] In this case, Constable Vieira seized the laptop computer which was in plain view as an incident to arrest and for furtherinvestigation.

Clearly, the seizing of the laptop in and of itself would afford evidence of the breach allegation and this is not our issue.The issue is the examination of the contents of the laptop for a purpose not related to the arrest and related to an investigation on anothercharge. [19] In R. v. Polius, [2009] O.J No 3074, Justice Trafford of the Ontario Superior Court held that police were not justified in

examining the electronic content of a cell phone which had been seized incident to arrest. [20] In Polius, as in our case, the officer believed that the power to seize a cell phone as evidence of a crime during a search incidentto the arrest of a person for the crime included power to examine the contents of the cell phone, without prior judicial authority.Therefore, he decided to have the cell phone examined by police technicians without obtaining a search warrant. The search in Poliusoccurred December 2007.

The decision in Polius, released in June 2009, sets out the criteria for a valid search incident to arrest includingthat the power to seize a cell phone during a search incident to arrest where there is reason to believe it may afford evidence of the crimedoes not include a power to examine the contents of the cell phone without prior authorization, absent exigent circumstances. [21] In the Polius decision, there is an extensive review of the case law including decisions of the S.C.C. such as R. v.

Law (2002)2002 SCC 10 , 160 C.C.C. (3d) 449 where police during the investigation of a theft of a safe, recovered the safe and its contentsand conducted various tests on it. They inspected its contents. The S.C.C. found the search was a breach of the accused s.8 rights and R.v.Buhay which speaks of the fact that s.8 rights includes the right to keep information confidential. In R. v. Polius, Justice Trafford rejectsthe argument that the power to seize incidental to arrest includes a warrantless power to examine its contents, and chooses not to followthe decisions of R.v.

Lefavre [2003] O.J No 3861 (S.C.J.) and R.v. Giles 2007 BCSC 1147 , [2007] B.C.J. No 2918 (B.C.S.J.) [22] It should be noted that in R.v. Polius having found that the search of the cell phone infringed the accused rights under s.8 of theCharter, the court chose not to exclude the evidence finding that the admission would not bring the administration into disrepute. [23] Recently, the Ontario Court of Appeal dealt with a similar search issue in R.v.

Manley 2011 ONCA 128 , [2011] O.JNo.642 in obiter, at paragraph 39, the Ontario Court of Appeal stated at paragraph 39: “While I would not apply Polius in the particular circumstances of this case, I am far from persuaded that Polius was wrongly decided orthat it ought to be overruled. Cell phones and other similar handheld communication devices in common use have the capacity to storevast amounts of highly sensitive personal, private and confidential information – all manner of private voice, text and e- mailcommunications, detailed personal contact lists, agendas, diaries and personal photographs.

An open –ended power to search without awarrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious andsignificant invasion of the Charter-protected privacy interests of arrested persons.

If the police have reasonable grounds to believe thatthe search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrantauthorizing the search.” [24] The Crown in this case concedes that given the current state of the law regarding search incident to arrest that police shouldhave obtained a warrant to search Mr. Groves’ computer, and that the police actions in this matter support a finding that a breach of theaccused s.8 rights has occurred. I concur and find that the search of Mr.

Groves’ computer was an unreasonable search and a searchwhich violated his rights under s.8 of the Charter. Section 24(2) Analysis [25] In R.v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, the Supreme Court of Canada clarified at paragraph 71 theapproach to be taken on application to exclude evidence as a result of a Charter breach in the following terms: “A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring theadministration of justice into disrepute engages three avenues of inquiry, each rooted in the public interest engaged by s. 24(2), viewed ina long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assessand balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of theCharter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impactof the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little),and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance theassessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidencewould bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations setout in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.” [26] With respect to the seriousness of the breach, it is significant that the decisions in R. v. Polius and R. v.

Manley were notrendered until after the search in the present case. Detective Blais testified that in March 2008, she believed that a search of the contentsof the laptop as a search incident to arrest did not require a warrant. She did not learn of this requirement until shortly after she took thesearch warrant case. The officer could not indicate the name of the case or the basis of her understanding of the law in 2008.

It is ofconcern that an officer with the degree of responsibility held by Detective Blais had not been able to attend the search warrant course andthat there was not a systematic process in place atop to ensure officers become aware of changes in the law. [27] Detective Blais’ lack of knowledge of conditional sentences and the law regarding search warrants became apparent in herevidence.

Further, the fact that she continued to search for evidence to support the breach allegation long after it had been resolvedspeaks of poor communication procedures between courts and the investigating officer. [28] Similarly, I have concerns in this regard regarding the knowledge of Detective Melchiorre as he is said to have discussed thewarrant issue with Detective Blais in August 2008 and was not aware the changing case law in this area of the law.

I do not find howeverthat there is any evidence that either of the officers were involved in Crown shopping, as Detective Blais indicated went to see the Crownthat had the most information regarding the accused substantive file and to present all the relevant information to her prior to obtainingan opinion whether to lay a charge. [29] Further, it does not appear from the evidence that Ottawa Police purposefully disregarded the Charter or were insensitive to therequirements. It appears the current practice is to obtain a warrant before examining the content of data stored in an electronic device.

Itis acknowledged that there were certain ambiguities regarding the state of the law in Ontario prior to the June 2009 decision in R. v.Polius and that prior to that decision the decisions of R. v. Gilles and R. v. Lefavre suggested a warrant was not required. Hence thedeficiencies in the officer’s knowledge regarding warrants, although not condoned, must be put in context of the state of the law in March

2008. I do not as such find that this conduct amounted to a negligent conduct from which the court must disassociate itself as spoken of in the Grant decision. I find that the failure to obtain a search warrant before examining the contents of the laptop was not a serious breach of the Charter in this circumstance. [ 30 ] With respect to the impact on the Charter protected interests of Mr. Groves, I take into consideration that Mr. Groves at the time of his arrest and the seizure of his laptop was under a conditional sentence of incarceration.

He was under a jail sentence, to be served in the community under strict conditions. One of, those terms required him to answer the door and/or telephone to allow police or his conditional sentence supervisor to confirm he was complying with the order. The other condition precluded his having the computer. In these circumstances, Mr. Groves had little, if any expectation, of privacy compared to a person who was not under a conditional sentence with such conditions.

It is difficult to claim a privacy interest in something he was specifically precluded by law from possessing. [ 31 ] I therefore conclude that the impact of the Charter breach on the privacy interests of William Groves was not significant. [ 32 ] Lastly, I consider society’s interest in the adjudication on the merits of the charges against Mr. Groves. The evidence obtained in this matter is reliable in the sense that it is not a statement which requires a person to give evidence against himself.

Further, I consider that if this evidence is excluded, the Crown is without evidence to support a prosecution on this charge. In this case, given the evidence of Constable Vieira and the circumstances of the accused arrest, I must also consider that a warrant would likely have been given had Detective Blais or Detective Melchiorre have sought a warrant to search the laptop in this case. I conclude that exclusion of the evidence in this case would impair the truth seeking function of the court on the charges before the court. [ 33 ] After weighing all the factors to be considered, I am not satisfied that Mr.

Groves has established that having regard to all the circumstances of his case, the admission of the content found on the laptop computer would bring the administration of justice into disrepute. Conclusion [ 34 ] Based on the foregoing reasons, the application to exclude the evidence seized from Mr. Groves’ computer is dismissed. Released: June 22, 2011 ___________________________ Justice Heather Perkins-McVey