2019 QCCQ 3012, 2019 QCCQ 3012

Estrella Llaneza c. R. 2019 QCCQ 3012 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL Criminal Division No: 500-01-119960-158 DATE: May 10, 2019 ______________________________________________________________________ PRESIDING : THE HONOURABLE SERGE DÉLISLE, J.C.Q. ______________________________________________________________________ Rafael Eduardo ESTRELLA LLANEZA Applicant v.

HER MAJESTY THE QUEEN Respondent ______________________________________________________________________ JUDGMENT ON AN APPLICATION SEEKING THE EXCLUSION OF EVIDENCE ______________________________________________________________________ BACKGROUND [ 1 ] Applicant will stand trial on two counts of aggravated sexual assault, beginning on October 21, 2019. [ 2 ] In the course of the investigation, D/Sgt Annie Prevost met with the two alleged victims in order to obtain video statements. [ 3 ] The meeting with the first victim, An. B. (hereafter An. B.) took place on November 14 , 2014. At that time, An.

B. provided D/Sgt Prevost with a videotaped statement in which he referred to text message conversations and a photo of a false document. [ 4 ] The electronic conversations addressed the possibility that Applicant had transmitted the HIV virus as well as requests by An. B. for evidence establishing that Applicant was HIV negative. It would have been in that context that Applicant sent a photo of a document falsely originating from a doctor. [1] [ 5 ] At the end of the meeting, An.

B. intended to give the cell phone containing the text message communications between him and Applicant to D/Sgt Prevost but realized that he had forgotten it in his room. It was then agreed that he would give the cell phone to the other alleged victim, A. H. (hereafter A. H.) who would remit it to D/Sgt Prevost. [ 6 ] A. H. met with D/Sgt Prevost on November 18, 2014, and provided a videotaped statement. On that date, A. H. remitted An. B.’s cell phone to D/Sgt Prevost. [ 7 ] On December 11, 2014, at the request of the Tech Crime Unit, D/Sgt Prevost had An.

B. sign a consent authorizing the extraction of the text message conversations between him and Applicant as well as the extraction of a photo in the FileVault of the cell phone.

According to D/Sgt Prevost, the consent was requested in order to follow proper procedure and to ensure that the owner of the device understood that if data relating to the perpetration of an offence other than those mentioned in the consent form was found, charges could be laid against him. [ 8 ] The said extractions were performed on April 20, 2015. [ 9 ] Applicant argues that he had a reasonable expectation of privacy in the text message conversations and seeks their exclusion from evidence, along with the photo extracted from An.

B.’s cell phone, on the basis that this evidence was obtained without a judicial authorization. According to him, the search was unreasonable and violated his s. 8 Charter rights. It follows that the evidence should be excluded from evidence pursuant to s. 24(2) of the Charter . [ 10 ] Respondent submits that Applicant did not have a reasonable expectation of privacy in the text message conversations because the cell phone was given to the investigator by An. B., with his consent. Furthermore, the photo transmitted is one of a counterfeit document attesting that he is HIV negative.

In sending a false document, Applicant committed an offence and therefore hereby voiding his expectation of privacy. [ 11 ] Finally, Respondent pleads that if the Court concludes that Applicant had a reasonable expectation of privacy and a warrant was needed, D/Sgt Prevost was in good faith and Applicant’s expectation of privacy was lessened in light of the shared control of the private text message conversations with An. B.. Also, according to Respondent, a warrant could easily have been obtained thereby reducing the impact of the violation.

Lastly, given the nature and circumstances of the offences, as well as society’s interest in the adjudication of the case on its merits and the available evidence, the text message conversations and the photo should not be excluded pursuant to s. 24(2) of

the Charter . ISSUES [ 12 ] Did Applicant have a reasonable expectation of privacy in the text message conversations he had with one of the alleged victims? [ 13 ] If so, was extraction of the electronic conversation from the alleged victim’s cell phone authorized by the law? [ 14 ] If not, should the evidence be excluded pursuant to section 24(2) of the Charter ? ANALYSIS A.

Reasonable expectation of privacy [ 15 ] As a general rule, a Charter claimant must prove both the existence of a reasonable expectation of privacy in the relevant subject matter and the unreasonableness of the search or seizure of that subject matter in order to make out a breach of s. 8. [2] [ 16 ] Thus, an accused must show a subjectively held, and objectively reasonable, expectation of privacy in the subject matter of the putative search.

There is no “search and seizure” within the meaning of s. 8 if the claimant cannot demonstrate a reasonable expectation of privacy. [3] [ 17 ] Objective reasonableness is assessed in light of the “totality of the circumstances”. Examining the totality of the circumstances entails an evaluation of all aspects of privacy.

Four lines of inquiry guide the application of the test: (1) an examination of the subject matter of the alleged search; (2) a determination as to whether the claimant had a direct interest in the subject matter; (3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and (4) an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances. [4] [ 18 ] In the present case, it is not disputed that Applicant had a subjective expectation of privacy in the electronic conversations that took place between him and An.

B. [ 19 ] Indeed, the subject matter of the search was private electronic conversations in which Applicant had a direct interest given that he was a participant in the conversations. Although there is no evidence that Applicant asked An.

B. to delete the text messages from his phone or to keep them private, the hurdle to establish Applicant’s subjective expectation of privacy is overcome in the circumstances. [5] [ 20 ] Was that subjective expectation of privacy objectively reasonable? [ 21 ] Since Telus [6] , it is clear that text messages are private communications when made under circumstances in which it is reasonable for the originator to expect that they will not be intercepted, that is, acquired in the course of the communication process, by any person other than the person intended by the originator to receive them. [7] As a result, a Criminal code

Part VI authorization is required to intercept a text message conversation that is in the transmission process. [ 22 ] The situation is different with respect to historical text messages, that is, when text messages have been sent and received. [8] [ 23 ] In Marakah , the Supreme Court wrote that historical text messages can, in some circumstances, attract a reasonable expectation of privacy. [9] [ 24 ] The majority concluded that senders generally maintain a reasonable expectation of privacy in messages stored on recipients’ devices seized by the police and will have standing to claim that the police violated their s. 8 rights.

However, the exchange of electronic messages will not always attract a reasonable expectation of privacy and each case must be assessed on its own merits by the trial judge. [10] [ 25 ] In that case, the Court concluded that Marakah had a reasonable expectation of privacy in the electronic conversation accessed by the police through an accomplice’s device. [ 26 ] While Marakah addresses some issues related to text messages, both the majority and dissenting justices alluded to - but did not resolve - the question of whether a sender has a reasonable expectation of privacy when the recipient – an alleged victim - voluntarily gives his device to the police for them to extract an electronic conversation. [11] [ 27 ] The Court finds that in the present case, the extraction of the text message conversations by the police from An.

B.’s cell phone was not an investigatory technique that constitutes a search or seizure for constitutional purposes for the following reasons. [ 28 ] An. B. referred to the text message conversations and the photo of the false document in his statement. It was his intention to give his device to the police and he voluntarily did so.

The consent form he signed at the request of the Tech Crime Unit was more to inform him of the possibility that charges that could be laid if data relating to other offences was found than to obtain his consent to search and extract the text messages. [ 29 ] Unlike Telus or Jones , the police did not attempt to obtain or access Applicant’s text messages. Nor did they obtain third-party consent to obtain An. B.’s device and search to obtain evidence of unknown content like in Cole and Reeves .

The police did not take anything from the accused, intrude upon a private conversation or view a text message conversation between two other parties, as in Marakah . [30] Once a text message is received, both sender and recipient are left with an independent record of the conversation. [12] The Court does not see any distinction between a victim that voluntarily provides investigators with a printed record of his conversation and the extraction of the same conversation from his device which is handed over voluntarily to the police. [13]

[31] As author Steven Penney wrote: “[T]his conclusion is buttressed by

Part VI of the Criminal Code , which regulates the interception and recording of private communications.

Section 184 makes it an offence for anyone to intercept a private communication, subject to certain exceptions. Most pertinent to this article, this prohibition does not apply to a party to a private communication, whether oral or text-based. A party to a private, oral conversation may consequently record it, even surreptitiously, without committing an offence.

Why then would the law forbid a party from voluntarily disclosing to police a text conversation that the sender knew would be recorded?” [14] [32] It would be inconceivable for the police, who have a duty to investigate crime and protect the public, to refuse to take possession of printouts made by an alleged victim.

It would be as inconceivable for the police to refuse to look at or to extract an electronic conversation from a device belonging exclusively to the same alleged victim, where such device is provided. [33] In Mills , Justice Karakatsanis [15] wrote that it is not reasonable to expect that sent messages (emails, Facebook messenger and, this Court adds, text messages) will be kept private from the intended recipient. [16] Indeed, an individual cannot reasonably expect their words to be kept private from the person with whom they are communicating. [17] [34] In the present case, Applicant clearly intended for An.

B. to receive his messages. It would not be reasonable for Applicant to expect otherwise and it would not be reasonable for him to think or expect that his messages would be kept private from the intended recipient, An. B.. Moreover, because it is inherent in the action of text messaging, Applicant and An.

B. were not only aware that a permanent written record of their communication existed, they actually created the record themselves. [18] Each party thus had a record of the conversation, over which each would have exclusive control. [35] That shared control is relevant when it comes the time to assess the conduct of the police when they intrude in a device, in an electronic conversation or try to obtain evidence from a device that is seized in the course of an investigation.

However, when the device is handed over to the police by a recipient who voluntarily chooses to disclose an inherently recordable conversation that he was privy to, as was the case here, it is irrelevant. [36] If An.

B. had given print screens of the text message conversations to D/Sgt Prevost, s. 8 would not require her to get a warrant prior to reviewing them. [37] Canadians ought not to expect privacy in a conversation involving an alleged victim, where such conversation is provided to the police without the police having taken any affirmative action, but is simply received from one of the participants. [38] In the context of the criminal law, it is action by the state (most frequently, the police) that attracts Charter scrutiny.

Not so, actions taken by private citizens. [19] [39] Therefore, the Court concludes that Applicant did not have an objective reasonable expectation of privacy in the text messages sent to the intended recipient / alleged victim because he could not reasonably have expected his words to be kept private from the recipient An. B. and because the police didn’t use any investigative technique to reduce his sphere of privacy. [40] However, in the event that I am in error in my analysis concerning the text messages, the specific status of a photo sent by Applicant to An.

B. will be addressed in order to determine if the former had a reasonable expectation of privacy in it. As previously mentioned, the evidence at voir-dire established that the photo was one of a false document attesting that Applicant is HIV negative. [41] To determine whether Applicant had a reasonable expectation of privacy in the photo sent to An. B., four lines of inquiry guide the application of the test (see par. 18). [42] The first step is to identify the subject matter of the search.

In the present case and as seen previously, the police wanted to retrieve an electronic conversation between Applicant and An. B. but also a “picture and screen picture located in my file vault on my cellular”, as found on the consent form signed by An. B. [20] and mentioned by D/Sgt Prevost in her testimony. [43] In the case of Rafferty [21] , emails containing etransfers were found alongside text messages exchanged between a drug overdose victim and the accused, some 75 minutes before the victim’s death. The judge concluded that Rafferty had a reasonable expectation of privacy in the text message conversations.

On the other information found, he wrote: “The other information seized, however, such as the emails containing the etransfers, has nothing to do with Applicant, other than they purport to send him money. They were not created by him, nor do they contain any communicative act or private information about him .” [22] (Emphasis added) [44] The photo extracted from An. B.’s device is one of a false document. No matter who the creator of the document is, Applicant cannot argue that it reveals private information that falls within the “biographical core” of information because it is a false document.

Therefore, he cannot claim to have a reasonable expectation of privacy in it. [45] Consequently, in light of the facts of this case, neither the text messages nor the photo are subject to s. 8 Charter scrutiny. B. Should the evidence be excluded under s. 24(2) of the Charter? [46] In the event that this Court is in error in its analysis, and the warrantless extraction of the data from An.

B.’s device was unreasonable, s. 24(2) will be addressed. [47] The test for exclusion of evidence under s. 24(2) of the Charter was described by the Supreme Court in Grant . [23] The relevant evidence is assessed in a three-part analysis, which assists in focusing the balancing of interests that must ultimately occur: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused;

(3) Society’s interest in an adjudication on the merits.

The seriousness of the Charter -infringing state conduct [48] A helpful method of gauging the significance of Charter-infringing conduct is to determine where it falls on a spectrum of seriousness, with “inadvertent or minor violations” at one end and a blatant or brazen disregard for Charter-protected interests at the other. [24] [49] The conduct of D/Sgt Prevost in this case would be best described as a minor violation. Unlike the seizure in Marakah , Prevost’s receipt of the physical device was lawful.

The owner of the phone handed it over wilfully, consent was formalized upon request by the Tech Crime Unit, and at the time of the warrantless examination, the law did not recognize a privacy interest in sent text messages. It cannot be said, at the time of examination, that either D/Sgt Prevost or the Crime Tech Unit was ignorant of Charter principles during their interaction with the phone. While this finding does not preclude a

section 8 violation, given the evolution in the law at the Supreme Court level, it does favour admission on this part of the Grant test. The impact of the breach on the Charter-protected interests of the accused [50] Turning to the second branch of the test, there would be an obvious impact on Applicant because he is a participant in the electronic conversation. However, it is important to note that Applicant sent a photo of a false document to An. B.. Also, unlike Marakah who shared control over the conversation with his accomplice, Applicant shared it with his alleged victim.

While this does not eviscerate his privacy expectation, it does diminish it considerably. Overall, this factor points towards admission. Society’s interest in an adjudication on the merits [51] The third factor examines whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. [52] There is no reason to be concerned about the reliability of the evidence.

Unlike an improperly obtained confession, for example, nothing about the police conduct in this case undermined the reliability of the messages or photo retrieved from the phone. [53] However, even though aggravated sexual assault is a serious offence, this case would not have been “gutted” by the exclusion of the text message conversations and the photo evidence, given the existence of An. B.’s testimony. [54] Consequently, this factor is of limited assistance.

Conclusion [55] Having assessed and balanced the various interests and factors through the lens of this three-part test, the Court concludes that the admission of the text messages and the photo, in the event of a violation to s. 8 rights, would not bring the administration of justice into disrepute. The police conduct was reasonable and compliant with the law as it was at the time. Also, the expectation of privacy would at best be diminished. Finally, the evidence is reliable and confirmatory in a case where the offences are serious.

In conclusion, the Court is convinced that Applicant’s text messages and the photo he sent should be admitted at trial. FOR THESE REASONS , the Court DISMISSES the Application for the exclusion of evidence . __________________________________ SERGE DÉLISLE, J.C.Q. Me Isabella Teolis and Katia Zazzara For Applicant Me Olivier Charbonneau For Her Majesty the Queen Date of hearing: March 15, 2019