2021 QCCA 102, 2021 QCCA 102

Wyke c. R. 2021 QCCA 102 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006599-177 (500-01-107926-146) DATE: 22 JANUARY 2021 CORAM: THE HONOURABLE JACQUES J. LEVESQUE, J.A. MARIE-JOSÉE HOGUE, J.A. PATRICK HEALY, J.A. OSWALD WYKE APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] This is an appeal against a guilty verdict pronounced by a jury in the Superior Court, District of Montreal, [1] on one count of second-degree murder. [2] [ 2 ] The appeal raises two issues, one concerning the admissibility of data from a cellular telephone and the other concerning the judge’s instructions on a factual element in the prosecution’s submissions to the jury. Admissibility of data from the cellular telephone of Kwame John [ 3 ] The appellant was charged with second-degree murder in the shooting of Alfredo Olvin Paz on 28 June 2014.

In the following days investigators learned that between 20 June and 30 June 2014 there were 122 communications between the cellular telephones of the appellant and Mr. John. On 5 September 2014 investigators arrived unannounced at Mr. John’s place of business to ask him questions. Mr. John confirmed that he knew the appellant and that he had tattooed images of dollar signs on the appellant’s forearms. He showed photographs of these tattoos to the investigators that were recorded in his cellular telephone.

He also told them that he had had no contact with the appellant after the murder. [ 4 ] After this encounter the investigators sought to confirm the number of communications between the appellant and Mr. John between the murder and 30 June 2014. They were informed that there were 94 communications. The investigators then informed their superior officer that they would return to Mr. John’s business to seize his cellular telephone without warrant to ensure the preservation of any evidence. Upon their return they observed the telephone next to a cash register and seized it without obtaining Mr. John’s consent.

The battery was removed and the device was kept in a secure place until investigators obtained judicial authorisation to examine the contents of the telephone. [ 5 ] The appellant sought the exclusion from evidence of the data contained in the telephone on the ground that it had been obtained in violation of his right to protection against unreasonable search and seizure under

section 8 of the Charter. [ 6 ] At the voir dire on 21 September 2017 the investigators explained that on 5 September 2014 they learned that there had been 94 communications between the appellant and Mr. John in the two days after the murder and that they were shown by Mr. John, on that day, the photographs of the tattoos on the appellant’s arms. The tattoos had been mentioned by several witnesses and the investigators thus concluded that the content of the telephone appeared relevant. [ 7 ] On 29 September 2017 [3] the judge ruled that the seizure of the telephone was lawful under section 489(2) of the Criminal Code and, further, that even if the seizure was unreasonable under

section 8 of the Charter the relevant data in the telephone was admissible according to the criteria established in Grant . [4] This conclusion implies that the appellant had standing to seek the exclusion of the data. The judgment was given while Marakah [5] and Jones [6] were under reserve in the Supreme Court of Canada. [ 8 ] It must be noted that the circumstances at issue disclose two distinct phases in the sequence of events. The first is a seizure without warrant of Mr. John’s telephone. The second is a subsequent search and seizure with warrant of the contents of that telephone.

It must also be noted that the appellant did not contest the validity of the warrant for search and seizure of the data in the telephone. [ 9 ] The appellant sought the exclusion of data recovered in Mr. John’s telephone. It is clear that the appellant had no standing to challenge the warrantless seizure of the telephone if he had no reasonable expectation of privacy in the physical device of another person

over which he had no control. [7] He cannot assert the personal right of another. [8] This basic principle concerning the Charter has not been displaced. [ 10 ] The appellant relied on Reeves , [9] which was concerned with the manner in which a court should characterise the object of a seizure in the application of

section 8 of the Charter. The Court affirmed that the appropriate approach is a functional assessment of the privacy interests that action of the state might affect. Such an approach does not lead inevitably to an expansive extension of an expectation of privacy. In Reeves , the police had seized without a warrant, but with the consent of his former partner, the computer shared by her and the accused. The police subsequently obtained a warrant to search the data contained in the computer.

The invalidity of the warrant was not contested and the Court was concerned solely with the legality of the seizure of the computer. In this specific context the majority stated the following: [29] Turning first to the subject matter of the alleged seizure, in oral argument, the Crown distinguished between the taking of the physical hardware and a subsequent search of the computer’s data, which, in this case, occurred pursuant to a search warrant.

However, this Court has held that the subject matter must not be defined “narrowly in terms of the physical acts involved or the physical space invaded, but rather by reference to the nature of the privacy interests potentially compromised by the state action” ( Marakah , at para. 15 , citing Ward , at para. 65). The guiding question is “what the police were really after” ( Marakah , at para. 15 , citing Ward , at para. 67). [30] Here, the subject matter of the seizure was the computer, and ultimately the data it contained about Reeves’ usage, including the files he accessed, saved and deleted.

I acknowledge that the police could not actually search the data until they obtained a warrant ( see R. v. Vu , 2013 SCC 60 , [2013] 3 S.C.R. 657 , at paras. 3 and 49 ). Nevertheless, while the privacy interests engaged by a seizure may be different from those engaged by a search, Reeves’ informational privacy interests in the computer data were still implicated by the seizure of the computer.

When police seize a computer, they not only deprive individuals of control over intimate data in which they have a reasonable expectation of privacy, they also ensure that such data remains preserved and thus subject to potential future state inspection. [31] Thus, I disagree with the Court of Appeal’s assertion that “[s]eizing the computer did not interfere with Reeves’ heightened expectation of privacy in its informational content; it did not imperil any of his legitimate interests, beyond mere property rights” (para. 61).

Clearly, the police were not after the physical device (to collect fingerprints on it, for example), but rather sought to preserve and permit access to the data it contained. To focus exclusively on the property rights at issue (that is, on Reeves’ interest in the computer ) neglects the important privacy rights in the data that are also engaged by the seizure. [ … ] [34] Personal computers contain highly private information. Indeed, “[c]omputers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations.

They even reveal our specific interests, likes, and propensities” ( R. v. Morelli , 2010 SCC 8 , [2010] 1 S.C.R. 253 , at para. 105 ; see also Vu , at paras. 40-41 ; Cole , at paras. 3 and 47-48 ). Computers act as portals — providing access to information stored in many different locations ( Vu , at para. 44 ; R. v. Fearon , 2014 SCC 77 , [2014] 3 S.C.R. 621 , at paras. 131-32 ). They “contain information that is automatically generated, often unbeknownst to the user” ( Vu , at para. 42 ). They retain information that the user may think has been deleted ( Vu , at para. 43 ).

By seizing the computer, the police deprived Reeves of control over this highly private information, including the opportunity to delete it. They also obtained the means through which to access this information.

Indeed, these are the reasons why the police seized the computer. [10] [ 11 ] The majority’s view that the object of the seizure includes data contained in the computer is based on the following argument: the seizure of a device has an effect of the right of a person to informational privacy because it deprives this person of the control over his or her information, and thus the opportunity to prevent the state form preserving it. [ 12 ] In the present case the appellant never had physical control of the device that was seized and thus never had the opportunity to erase the content in order to prevent its preservation.

As distinct from the majority position in Reeves , the seizure of the device from Mr. John could not by itself infringe the appellant’s privacy interests [11] . This distinction was explicitly recognised and applied by the British Columbia Court of Appeal in Vickerson . [12] [ 13 ] Even assuming that the appellant had a reasonable expectation of privacy in communications from him that were stored in Mr. John’s telephone, [13] and thus had standing, this claim could not succeed unless he established that the search and seizure of the data authorised by judicial warrant was itself a violation of his right under

section 8. But the appellant did not impugn the validity of the warrant and unless he could do so his claim could not succeed. [ 14 ] Accordingly, the appellant had no standing to impugn the warrantless seizure of Mr. John’s telephone and he did not establish, or attempt to establish, that the judicial authorisation by warrant concerning the data in the telephone was itself a violation of

section 8 of the Charter. The only manner in which such an attempt could prevail would require the appellant to demonstrate that he had a reasonable expectation of privacy in the physical object of Mr. John’s telephone that would prevent the issuance of a warrant to search and seize the data in which he has an expectation of privacy in his personal information. [ 15 ] In any event, it was not established that the seizure of Mr. John’s telephone was in any way unlawful. The trial judge concluded that the seizure was lawful under section 489(2) of the Code.

But even if the seizure of the telephone was a breach of Mr. John’s right, the appellant under current jurisprudence has no standing to invoke Mr. John’s right to support a claim that for this reason his own right under

section 8 was violated by the issuance of the warrant to seize the data in the telephone. Whether Mr. John’s right under

section 8 was breached is thus immaterial. The appellant’s interest is strictly coextensive with his reasonable expectation of privacy. If he cannot otherwise demonstrate that the warrant to seize communications from him in Mr. John’s telephone was an unreasonable breach of his own expectation of privacy in that content, his claim must fail. [ 16 ] In short, this ground of appeal must fail, even if the appellant has standing to challenge the search of the device authorised by a warrant, because the claim is advanced on the basis of a claim for which he has no standing. Thus there was no violation of the appellant’s right under

section 8. For this reason it is unnecessary to consider section 24(2) of the Charter.

Instructions concerning prosecution pleadings [ 17 ] The victim was shot in the back and in the head from behind. An important witness on the issue of identification was Deania Calliste. She testified that she had seen, at the moment of the shots, several persons close to the victim as well as a man walking beside him while the appellant walked ahead of the victim and toward him. She did not see him fire shots and she did not see a weapon in his possession. After the shots were fired, the victim fell forward and several persons ran away, including the appellant who ran to the back of a nearby restaurant.

The theory of the defence was that if the appellant was in front of the victim before the shots, the appellant could not have shot the victim in the back. [ 18 ] The prosecution offered two suggestions with respect to the testimony of Ms. Calliste. Well, we know for a fact that the shot fired in the back had to be fired by someone who was on the... if as we think the victim fell flat on his face, that the shooter had to be on the Mackenzie side because of the angle of the shot.

Remember that the shot came in the lower back and exited near the shoulder and one of the possibilities that the doctor, doctor Bourgault testified about was that either the person was already flat on his face when he received that shot and it should mean that the shooter would be very far because in order for the angle to enter the lower back and come out of the shoulder, he would take such an angle, such a small angle, maybe an angle of ten (10) or fifteen (15) degrees that there would had to be necessarily a very long distance between the shooter and the victim.

Another possibility that I submit to you is more realistic, is that the victim was just bending down and if he bends down in this position, then the shooter could have been a lot closer and then the second shot, if it’s the second shot, we don’t know whether the first shot enters the back or the first shot hit the head, but a more convenient or a more reasonable, I think, way to look at it is that he was hit in the back first and then fell to the ground and then the shot, the second shot was fired right there and then and then it could have been fired by someone that was just over the victim and after, after the second shot was fired, then the shooter might well have been on the head side of the victim if he shot, if he shot in this sequence. [ 19 ] In short, the second suggestion offered by the prosecution was that the first shot was fired from behind the victim and that the killer then changed position over or in front of the victim to fire the second shot.

At trial the defence took issue with the prosecution’s suggestions and insisted that Deania Calliste had testified that she saw the appellant in front of the victim before the shots were fired. [ 20 ] In his second ground the appellant submits that the trial judge did not adequately instruct the jury concerning inaccurate, misleading or unfounded statements made by the prosecution in its final pleadings with regard to this witness’s testimony. Even assuming that there were such statements, this ground of appeal cannot succeed. [ 21 ] The judge was careful to respect the functions of judge and jury.

He was obviously concerned to ensure that the comments of the prosecution would not risk prejudice or unfairness to the appellant. [14] At the jury’s request he allowed them to listen again to the parties’ final submissions relating to the evidence of Ms. Calliste. He reminded the jury that pleadings are not evidence but counsels’

interpretation of evidence. [15] He reminded the jury that it was not his function as the presiding judge to instruct them how to interpret the evidence they had heard. He reminded the jury that they were bound to deliberate on their verdict solely on the basis of evidence presented before them. He reminded the jury that it was their function to interpret the evidence of Ms. Calliste concerning the identification of the appellant. [ 22 ] The jury was thus informed of the need to examine Ms. Calliste’s testimony concerning identification with careful attention.

The judge took steps to ensure that any risk of prejudice would be minimal or eliminated. The judge refrained from any further directions to avoid trespassing on the proper role of the jury. FOR THESE REASONS , the Court: [ 23 ] DISMISSES the appeal. JACQUES J. LEVESQUE, J.A. MARIE-JOSÉE HOGUE, J.A. PATRICK HEALY, J.A. Mtre Maxime Hébert Lafontaine LATOUR DORVAL For Appellant Mtre Robert Benoit DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For Respondent Date of hearing: 20 January 2021