Her Majesty the Queen - v. -, 2017 SKPC 36

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 036 Date: June 22, 2017 Information: 24524785 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - BoAllan Clinton Appearing: Barrie Stricker For the Crown Todd Parlee For the Accused DECISION ON SECTION 24(2) CHARTER APPLICATION R. GREEN , J I. INTRODUCTION [ 1 ] Mr. Clinton is charged with impaired driving contrary to section 253(1) (

a) of the Criminal Code and with committing mischief by giving a false statement to a police officer contrary to section 140(1) (c), both on September 24, 2016 at or near Moosomin . The Crown proceeded by

summary conviction, and the defendant entered not guilty pleas to the charges.

[ 2 ] On this day, two RCMP officers from Moosomin, Special Cst. Katrina Brace and Cst. Jonathan Berkshire, investigated a complaint from Mr. Clinton that his vehicle had been stolen. His vehicle was located in a ditch close to Moosomin, apparently after the vehicle had gone out of control and crashed into the ditch. The vehicle was a write-off, and cans of beer and a cell phone were found in the car together with blood on the steering wheel. Cst. Berkshire took a swab of the blood and seized the cell phone. He subsequently discovered information on this phone which he at some point connected to Mr. Clinton.

In the course of this investigation, later on the same day he seized the blood and cell phone from Mr. Clinton’s vehicle, he attended to the Uptown bar in Moosomin and both spoke to the bartender and obtained video surveillance from the bar taken on the previous evening. [ 3 ] The defence claims that the seizure and search of this cell phone violated Mr. Clinton’s rights under

section 8 of the Charter of Rights and Freedoms [ Charter ] , and, further, that evidence of any information obtained by Cst. Berkshire from the cell phone together with so-called derivative evidence obtained later this day by this officer at the Uptown bar be excluded under section 24(2) of the Charter. [ 4 ] A Charter voir dire was conducted and the issues to be determined are:

(1) Whether Mr. Clinton had a reasonable expectation of privacy in the cell phone when it was seized by Cst. Berkshire, so as to provide him with the protection of

section 8 of the Charter ;

(2) If so, whether the seizure and search of the cell phone by Cst. Berkshire constituted a violation of Mr. Clinton’s rights under

section 8; and

(3) If so, whether the evidence obtained by Cst. Berkshire from the cell phone and the evidence the officer obtained later that day at the Uptown bar should be excluded under section 24(2) of the Charter . II. BACKGROUND [ 5 ] Special Cst. Brace began her shift in Moosomin at 8:00 a.m. this day, and learned of a complaint by Mr. Clinton, from the evening before, that his vehicle had been stolen. She was given a description of this vehicle together with the license plate number. Mr.

Clinton had further advised, in his complaint, that the vehicle’s keys and his cell phone were in the vehicle when it was stolen. [ 6 ] Special Cst. Brace attended to the Squire Motel where she understood Mr. Clinton was staying and went to his room. He did not answer the door. While at the motel, the officer was approached by a person outside the restaurant who told her that a white vehicle, which matched the description she had of Mr. Clinton’s vehicle, was in the ditch north of Highway #1 near Moosomin. She then went to that location, and found Mr.

Clinton’s vehicle in the ditch, with skid marks leading to it and lots of damage to the vehicle. She saw a cell phone and cans of beer in the vehicle and blood on the steering wheel. No one was around the vehicle, and she called Cst. Berkshire to come assist her as she was not trained to collect evidence. [ 7 ] Special Cst. Brace played no further role in this investigation, except for calling for a tow truck. After Cst. Berkshire arrived at the scene, she saw him pick up and look at the cell phone. Later, she returned to the Squire Motel with Cst. Berkshire to arrest Mr. Clinton. [ 8 ] Cst.

Berkshire was radioed this day by Special Cst. Brace at 10:45 a.m. to assist in the investigation of a stolen vehicle complaint from Mr. Clinton. She had located his white Dodge Charger in a ditch near Moosomin, north of Highway #1 . He arrived at the scene at 10:58 a.m., and could see blood on the vehicle’s steering wheel, a cell phone out in the open in the vehicle and cans of beer scattered throughout it. He had been on shift the previous night, and was aware that Cpl. Fleming had received a report of an unknown white Dodge driving erratically near the Uptown bar. [ 9 ] Cst.

Berkshire was further aware that Special Cst. Brace had gone to the Squire Motel earlier that morning to try to find Mr. Clinton, without success. He used an evidence kit to seize blood from the steering wheel of the vehicle, seized the cell phone and

photographed the cans of beer he saw in the vehicle. When Cst. Berkshire picked up the cell phone, in his words: “it turned on”. He could not recall whether he touched the screen, but a message that was clearly visible on the screen of the cell phone said something to the effect of “this is your responsibility now so you’ll have to deal with it”. [ 10 ] Cst.

Berkshire said that, at that point, he thought it was possible the owner of the vehicle knew the vehicle had been in an accident, and not stolen, and the alcohol in the vehicle suggested to him that it was possible that the driver of the vehicle was impaired and that there had been a false report of a theft of a vehicle. Nothing on the cell phone suggested to him whom the cell phone belonged to, and he seized it. He as well discovered what he said were tickets and insurance papers in the vehicle, belonging to Mr. Clinton and he seized these as well. [ 11 ] Cst.

Berkshire said the reason he did not obtain a warrant before seizing either the blood on the steering wheel or the cell phone was that he was at that point investigating Mr. Clinton’s stolen vehicle. Cst. Berkshire was then called away to another complaint in the area, and Special Cst. Brace stayed at the vehicle and had it towed to the police compound. [ 12 ] Later at the detachment, Cst. Berkshire looked further at the cell phone, and discovered a picture of Mr. Clinton drinking beer at a bar which he said in his general report was the Uptown bar.

When testifying at the voir dire , however, he said he was mistaken on this and, upon viewing the picture in court, believed it was taken at the Squire Motel bar and not the Uptown bar. [ 13 ] Later that day, around supper, Cst. Berkshire attended to the Uptown bar in response to the earlier complaint by the bartender. There he spoke to the bartender and obtained information about whether Mr. Clinton had been at the bar the previous evening and about Mr. Clinton’s sobriety. He as well obtained a surveillance video from the bar of what had occurred there the previous evening. Cst.

Berkshire said the reason he went to the bar was that he was responding to the complaint from the bar received by Cpl. Fleming the previous night. He denied that it was in response to a text message that he saw on the cell phone when he picked it up at the scene of the accident. Cst. Berkshire thought the complaint from the Uptown bar might well be connected to Mr. Clinton’s vehicle in some way. That was because there were very few white Dodge Chargers - a description which he understood was similar to the subject vehicle of the complaint received by Cpl.

Fleming the evening before - in the Moosomin area, and this seemed to him like more than a coincidence. As a result, he wanted to investigate whether or not the driver of the white Dodge Charger he found in the ditch had been in the Uptown bar. III. DID MR. CLINTON HAVE A REASONABLE EXPECTATION OF PRIVACY IN HIS CELL PHONE WHEN IT WAS SEIZED BY CST. BERKSHIRE? [ 14 ] To avail himself of the protection against unreasonable search and seizure provided by

section 8 of the Charter , Mr. Clinton must have had a reasonable expectation of privacy in this cell phone when it was seized and then searched by Cst. Berkshire (see R v Edwards [1] ). Counsel for Mr. Clinton argued he had such an expectation in both his vehicle and his phone. I disagree for the following reasons. [ 15 ] The police officer was investigating a stolen vehicle complaint from Mr. Clinton. In doing so, I am satisfied that, upon finding his vehicle in a ditch, he was entitled to enter the vehicle as part of his lawful investigation of the complaint.

While the Supreme Court of Canada has acknowledged that the owner of a cell phone has a significant privacy interest in a cell phone if it is seized from him upon arrest [2] , clearly that was not the case here. Cst. Berkshire was in the course of his duty investigating a complaint by Mr. Clinton that his vehicle had been stolen, when he seized both the blood sample from the steering wheel and the cell phone. Taken together, in these circumstances I do not accept that Mr.

Clinton had a reasonable expectation of privacy in the cell phone found on the seat of this vehicle, any more than he had a reasonable expectation of privacy in the blood found on the steering wheel. [ 16 ] Nor do I find Mr. Clinton had a reasonable expectation of privacy in the cell phone when Cst. Berkshire later, and at the RCMP detachment, found an undated picture of Mr. Clinton in a bar on the cell phone. That is because I accept the officer’s evidence which I understand to be that he still did not know who this cell phone belonged to at the point he saw the picture. IV.

DID THE SEIZURE AND SEARCH OF HIS PHONE CONSTITUTE A VIOLATION OF

SECTION 8?

[ 17 ] If I am wrong in my finding that Mr. Clinton did not have a reasonable expectation of privacy in his cell phone when it was seized by Cst. Berkshire, I will examine whether the search and seizure of Mr. Clinton’s phone constituted a Charter breach. Based on the Supreme Court’s ruling in R v Collins [3] , I accept that the warrantless seizure and search of this cell phone will be considered reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the seizure was carried out is reasonable.

I am satisfied that the seizure and subsequent search of the cell phone was authorized by law and was done reasonably for the following reasons. [ 18 ] Section 489(2) of the Criminal Code provides, in part, that every peace officer who is in the execution of his duties may, without a warrant, seize any thing that the officer believes on reasonable grounds will afford evidence in respect of an offence against the Criminal Code or any other Act of Parliament. While investigating this vehicle, Cst.

Berkshire seized a blood sample and a cell phone, and took pictures of beer cans, all of which he thought would afford evidence in respect of Mr. Clinton’s stolen vehicle complaint. That power, in my view, would further authorize the officer to look at (search) a cell phone he did not, until he saw the picture of Mr. Clinton at a bar, reasonably believe belonged to Mr. Clinton. [ 19 ] As a result, I am satisfied that the seizure and search of this cell phone: (1) was authorized by law; (2) with no suggestion to the contrary, this law ( section 489(2) ) is reasonable; and (3) that the seizure and search by Cst.

Berkshire was done reasonably. As a result, I would not have found a violation of Mr. Clinton’s rights under

section 8 had I found he had a reasonable expectation of privacy in the phone in these circumstances. V. IS ANY EVIDENCE TO BE EXCLUDED UNDER SECTION 24(2)? [ 20 ] Because I have not found a violation of Mr. Clinton’s rights under

section 8 of the Charter , I need not decide whether any evidence is to be excluded under section 24(2) of the Charter upon the defence application. [ 21 ] That said, I will address one further matter focussed on by Mr. Parlee. He claimed that any evidence Cst. Berkshire discovered later this day at the Uptown bar should as well be excluded, as it was derivative of the text message and the photograph found by the officer on this cell phone. In other words, the evidence Cst.

Berkshire obtained later this day at the Uptown bar would not have been received “but for” the manner in which the cell phone was seized and searched. The Supreme Court of Canada R v Feeney [4] established the “but for” test in determining whether evidence was derivative, but as well held that evidence was not derivative if it would have been discovered independently of the impugned evidence (here the evidence obtained from the cell phone). [ 22 ] Even if I had found a

section 8 breach as a result of the seizure and search of this cell phone, I would not have found the evidence Cst. Berkshire obtained at the Uptown bar to be derivative of the information from the cell phone. Whether or not Cst. Berkshire initially thought the undated picture on this cell phone was taken of Mr. Clinton at the Uptown bar, I am satisfied that the evidence later obtained by him at the Uptown bar would have been independently discovered by him, in following up the complaint Cpl. Fleming received from a bartender at the Uptown bar the evening before.

In my view, that earlier complaint provided an independent link between what occurred at or near the bar on the previous evening and the vehicle, reported as stolen, which was found in the ditch by the officer. VI. CONCLUSION [ 23 ] For the reasons stated above, I am not satisfied that Mr. Clinton’s rights under

section 8 of the Charter were violated by the seizure and search of his cell phone by Cst. Berkshire. The defence’s application under section 24(2) of the Charter is therefore dismissed. R. Green, J

[1] (SCC), [1996] 1 SCR 128 at p 140. [2] See R v Fearon, 2014 SCR 621. [3] (SCC), [1987] SCJ No 15 (QL).. [4] (SCC), [1997] 2 SCR 13 at para 68-70.