r v. LOTFI AOUICHI, 2019 QCCQ 360

Translated from the original French Directeur des poursuites criminelles et pénales c. Aouichi 2019 QCCQ 360 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LAVAL LOCALITY OF LAVAL “Criminal and Penal Division” No.: 540-61-080994-160 540-61-083945-177 DATE: January 31, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE SERGE CIMON, J.C.Q. ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecutor v.

LOTFI AOUICHI and NICHOLAS MUSYOK KIOKO Defendants ______________________________________________________________________ DECISION ON A MOTION TO EXCLUDE EVIDENCE ( Sections 8 , 9 , 10( a ) , 10( b ) , and 24 of the Canadian Charter of Rights and Freedoms ) ______________________________________________________________________ [ 1 ] On September 24, 2018, the Court dismissed the motion to exclude evidence brought by the defendants, with reasons to follow [1] in order to avoid unduly delaying the proceedings. [ 2 ] Here are the reasons for that decision.

BACKGROUND [ 3 ] Following complaints from the taxi industry that drivers were offering passenger transportation for remuneration using the UberX application, highway controllers (“controllers”) conducted several checks. [2] [ 4 ] The UberX mobile application connects customers to drivers. Geolocation allows customers to see nearby cars and an estimated wait time is displayed for each car. Customers choose a car and communicate with the driver, whose first name, photo, licence plate, and make and model of car is displayed.

After customers enter the desired destination, the driver offers them transportation services. When the customer receives an estimate of the cost, he or she can book the transportation. The driver then receives this confirmation and sets out.

At the pick up location, the driver and the customer confirm each other’s identity. [3] [ 5 ] In this case, a controller, who had requested a trip using the UberX application using a false name in order to ascertain compliance with the Act respecting transportation services by taxi , [4] intercepted the defendants. [ 6 ] The Prosecutor alleges that the defendants offered passenger transportation by automobile, for remuneration, without holding a taxi owner’s permit, thereby violating s. 117 of the ATST . [ 7 ] At the outset of their trial, the defendants presented a motion to exclude evidence based on ss. 8 , 9 , 10(

a) and 10(

b) of the Canadian Charter of Rights and Freedoms (the “ Charter ” ). ISSUES IN DISPUTE [ 8 ] The issues in dispute have been defined as follows:

A) Have the defendants established a reasonable expectation of privacy with respect to the UberX application?

B) If so, does the collection of information using the UberX application constitute an unreasonable seizure?

C) Were the defendants arbitrarily detained in breach of s. 9 of the Charter ?

D) Have the defendants established a breach of s. 10 of the Charter ?

E) If there were one or more breaches, should the evidence obtained be excluded under s. 24(2) of the Charter ? ANALYSIS 1. HAVE THE DEFENDANTS ESTABLISHED A REASONABLE EXPECTATION OF PRIVACY WITH RESPECT TO THE UBERX APPLICATION? 1.1 The positions of the parties [ 9 ] The defendants argue that the threshold for establishing a reasonable expectation of privacy is low and that an overly heavy burden must not be imposed on them before applying s. 8 of the Charter .

They claim that their subjective expectation of privacy in the UberX application can be presumed or that it can be inferred from the circumstances. [5] They suggest that the objectively reasonable nature of their expectation is established by the fact that the state accessed personal information [6] (first name, licence plate, make and model of the vehicle) and their geolocation in real time using an interactive map.

They note that they had a reduced expectation of privacy in their vehicle but that it existed nevertheless, [7] which allows them to benefit from the protection of s. 8 of the Charter . [ 10 ] The prosecution argues that nothing is known of the defendants’ subjective expectation because they chose not to testify. In addition, it alleges that the defendants could not have had an expectation of privacy because they chose to register on a public platform and share information about themselves.

The purpose was to connect them to potential customers so that they could enter into a transportation contract for remuneration. Moreover, it notes that everyone can see the licence plate and the make and model of the vehicle when it is travelling on a public road, so the defendants cannot seriously allege that they had an expectation of privacy. 1.2 Applicable law [ 11 ]

Section 8 of the Charter guarantees a general right to be secure against unreasonable search and seizure in cases where the person subject to it had a reasonable expectation of privacy. [8] [ 12 ] A reasonable expectation of privacy is a prerequisite for the application of that right.

In this respect, the Court must consider whether a reasonable, informed person in the position of the defendants would reasonably expect privacy. [9] [ 13 ] The person seeking protection under s. 8 of the Charter must establish, on a balance of probabilities, [10] that he or she has a reasonable expectation of privacy. [11] [ 14 ] There is both a subjective and an objective component to the test for this reasonable expectation. [12] [ 15 ] At the subjective stage of the analysis, the Court must determine whether the person had, or was presumed to have, an expectation of privacy.

The threshold is low. [13] [ 16 ] That belief must also be objectively reasonable.

To determine whether a person has an objectively reasonable expectation of privacy, the Court must consider the totality of the circumstances [14] and the following non-exhaustive [15] list of factors: [16] (1) the nature or subject matter of the evidence gathered; (2) the defendant’s presence at the time of the seizure; (3) the place where the alleged seizure occurred; (4) possession or control of the property searched; (5) ownership of the property or place; (6) historical use of the property; (7) the ability to regulate access, including the right to admit or exclude others from the place; (8) whether the subject matter was in public view; (9) whether the information reveals intimate details of the person’s lifestyle or information of a biographical nature; (10) whether the information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality; and (11) whether the search technique itself was objectively intrusive or unreasonable. [ 17 ] That said, it is common ground that information can be seized [17] and that Charter protection does not depend on whether the person’s privacy shelters legal or illegal activity. [18] 1.3 Application to the facts [ 18 ] For the following reasons, the Court finds that the defendants did not establish, on a balance of probabilities, that they had a reasonable expectation of privacy with respect to the UberX application. [19] • A public space [ 19 ] The evidence establishes that the UberX application is a public space, [20] in that any member of the general public with a cell phone, a credit card, and an email address can sign up and create an account. [ 20 ] No prior control or check is done when a new user signs up; even fictional persons can use the application. • Use of the UberX application [ 21 ] The evidence establishes that the purpose of the UberX application is to bring a driver into contact with a potential customer so that they can enter into a transportation contract. [21] [ 22 ] In this case, the Court must infer that the defendants authorize UBER to disclose to potential customers the limited information about them.

Therefore, by allowing that information to be available to the public or a segment of the public, the defendants cannot have a reasonable expectation of privacy in that information. [22]

[ 23 ] By acting this way, far from asserting a right to anonymity or to informational privacy, the defendants instead agree to allow others to consult and use this information.

In addition, there is nothing to indicate that the controller’s use of the UberX application reduced the defendant’s expectation of privacy. [23] • The ownership of UberX [ 24 ] There is no evidence suggesting that the defendants own the UberX application in any way. [24] On the contrary, the evidence shows that UBER provides the detailed receipt sent to customers. [25] • Accessibility and control of the application [ 25 ] There is nothing establishing that the defendants control the accessibility of the UberX application or that they can exclude a user from accessing the application. [26] Moreover, there is nothing indicating that Uber had any obligation of confidentiality or that the defendants expected that the disclosed information would remain confidential. [27] • Implicit waiver [ 26 ] The information is only disclosed with the defendants’ express agreement because it is only transmitted once they have accepted the trip.

The defendants thereby implicitly waive the protection of their privacy for this information. [28] That waiver also arises from the fact that the higher the number of users of the UberX application, the harder it becomes to allege a reasonable expectation of privacy in the information that appears there. [29] [ 27 ] Furthermore, there is nothing in the evidence indicating that the defendants reasonably intended the information to remain private, [30] or that they took means to preserve the confidentiality of this information. [31] • Nature of the information [ 28 ] In this case, the transmitted information does not include biographical information about the defendants’ personal lives, nor does it reveal intimate details of their lifestyle or their personal choices. [32] The information is even useful for the drivers as the customers at the pick-up point can more easily identify them. [33] [ 29 ] In addition, the Court notes that drivers have no expectation of privacy in respect of their identity when they are driving a vehicle. [34] Moreover, everyone can see the licence plate and the make and model as soon as a vehicle is travelling on a public road.

There is no expectation of privacy when a vehicle is observed in traffic. [35] In addition, the defendants voluntarily exposed themselves to the public or a segment of the public. [36] [ 30 ] Furthermore, driving an automobile is a privilege [37] and a highly regulated activity. [38] Because of the obligation for every driver to hold a driver’s licence and to remit it to a peace officer for examination, no one can claim a right to anonymity when they are driving a road vehicle. [39] • Exercising a commercial activity [ 31 ] Drivers normally retain a reduced expectation of privacy in their motor vehicles. [40] However, by deciding to engage in the economic activity of the transportation of persons the defendants were no longer just using a passenger vehicle, but a “commercial vehicle”, thereby reducing any expectation of privacy. [41] [ 32 ] Furthermore, they could not have been unaware of the risk that controllers could immediately seize their vehicle. [42] In addition, the defendants behaved in a manner inconsistent with an expectation of privacy.

They were far from carrying out intimate or sensitive activities with the understanding that these activities would be anonymous . [43] [ 33 ] That said, objectively, the commercial context [44] in which the UberX application is used cannot give rise to any expectation of privacy in the information transmitted in the ordinary course of the regulated activity of passenger transportation for remuneration. [45] On this point, the defendants cannot plead ignorance of the law. This is particularly true in Mr.

Aouichi’s case because he held a taxi driver’s permit at the time of the events. • Implicit consent [ 34 ] Furthermore, by accepting to make a trip, the defendants no longer had an expectation of privacy because they were implicitly authorizing customers to open their car door at the pick-up point. [ 35 ] The Court also notes that pursuant to s. 47 of the Taxi Transportation Regulation , [46] drivers must even help a customer requiring assistance to get in or out of their automobile. 2.

IS THE COLLECTION OF INFORMATION USING THE UBERX APPLICATION AN UNREASONABLE SEIZURE? [ 36 ] Although the defendants have not established a reasonable expectation of privacy, the Court will examine the alleged abusive nature of the search, because the parties selected these cases as the “key cases”. [47] 2.1 The positions of the parties [ 37 ] The defendants argue that the controllers exceeded their powers. They contend that prior to the legislative amendments of September 8, 2016, the ATST did not grant controllers investigative powers.

They allege, however, that in this case, the controllers undertook a genuine penal investigation, whose predominant objective was to find and punish offences under the ATST by UBER drivers. In support of their submission, they note that controllers held preparatory meetings and set [ translation ] “traps” to entice drivers,

who were unknown to their department, to commit offences. To do so, they used many vehicles (both official and undercover vehicles), several officers (both undercover and in uniform), and targeted specific places.

They also created fictitious profiles and obtained credit cards and cell phones, which allowed them to sign up as users on the UberX platform. [ 38 ] The defendants also argue that pursuant to ss. 66 and 67 of the ATST in effect at the time, controllers had only a very limited power of inspection with respect to passenger vehicles. [ 39 ] Moreover, when they opened the car door, the controllers conducted an illegal search of the vehicle.

In short, since no prior judicial authorization or legal power allowed them to act as they did, the controllers carried out an abusive seizure. 2.2 The position of the Prosecutor [ 40 ] The Prosecutor argues that the Charter analysis must be carried out using a contextual approach to take account of the regulatory nature of the offence and its place within a larger scheme of public welfare legislation. [48] This explains why a Charter right may have a different scope and different implications in a regulatory context than it would in a criminal one. [49] The explicit objective of the ATST is to increase the safety of users. [50] To do so, the ATST imposes conditions to become a driver, among other things, and sets out obligations with respect to the maintenance of the vehicles used. [ 41 ] The Prosecutor also maintains that the licensing theory [51] applies to the defendants, since they freely chose to use their vehicle as part of a highly regulated commercial activity, that is, passenger transportation for remuneration. [ 42 ] Furthermore, the Prosecutor notes that just because the controllers set up an elaborate operation and used various tools at their disposal does not mean that they were conducting a penal investigation.

In this case, the Prosecutor argues that the controllers were performing a general audit to ascertain compliance with the ATST . To do so, and in order to avoid a fishing expedition, the controllers acted like any citizen by using the UberX application as users. [ 43 ] The Prosecutor added that when the defendants arrived, the controllers knew that it was passenger transportation for remuneration, but they did not know if the defendants held a taxi owner’s permit.

At that point, s. 67 of the ATST authorized the controllers to stop the automobile used to provide passenger transportation, inspect it, and examine any document relating to the application of the Act. 2.3 Applicable law •

Section 8 of the Charter [ 44 ] A warrantless search is presumptively unreasonable. [52] The party seeking to rebut this presumption must establish on a balance of probabilities that the search was authorized by a law that is itself reasonable and that the manner in which the search was carried out was reasonable. [53] [ 45 ] Both an inspection and a seizure are searches within the meaning of s. 8 of the Charter .

However, this constitutional guarantee must be interpreted in a regulatory law context. [54] [ 46 ] That said, it has been recognized that the purpose of administrative inspections is to ensure compliance with regulatory statutes, even if they may give rise to a criminal prosecution. [55] [ 47 ] It is also accepted that an agent of the state who already has reasonable grounds to believe that an offence has been committed must obtain prior judicial authorization before undertaking an inspection. [56] A legal inspection does not become an illegal search solely because a controller expects to find a statutory offence [57] or because it results from a complaint. [58] • The ATST [ 48 ] Passenger transportation for remuneration is a highly regulated economic activity, in particular with a view to ensuring the safety of users, which is a public policy consideration . [59] For this reason, the legislature aims to prevent persons from engaging in passenger transportation for economic gain without being subject to the rules applicable to such activity. [60] [ 49 ] Therefore, s. 36 of the Transport Act prohibits any person from acting as carrier or providing the services of a means of transport or transport system for direct or indirect remuneration, unless he or she holds the permit prescribed for that purpose by regulation. [61] In addition, s. 4 of the ATST requires every person who offers or provides, for remuneration, passenger transportation by automobile, to be authorized to do so by a taxi owner’s permit and to be registered in accordance with the applicable tax laws. [62] [ 50 ] In short, a person cannot unilaterally take on the role of a taxi driver or owner. [63] 2.4 Application to the facts [ 51 ] For the following reasons, the Court finds that the controllers did not conduct an unreasonable search or seizure, even if we assume that the defendants had an expectation of privacy. • A search authorized by the ATST [ 52 ] By using the UberX application, the controllers were acting within their powers, because they ensured that the vehicle they were about to stop was being used for passenger transportation. [64] The controllers could then inspect it and examine any document relating to the application of the ATST . [65] In that respect, it is accepted that remitting a document that a person is required to remit for examination does not constitute a search within the meaning of s. 8 of the Charter , because there is no expectation of privacy. [66] • A search carried out in a reasonable manner

[ 53 ] There is nothing in the evidence establishing that inspections made by the controllers with respect to the defendants were carried out in an unreasonable manner or with an ulterior motive. Furthermore, the inspections were carried out quickly. In addition, the use of several officers and service vehicles is not determinative in itself in transforming a simple, planned audit into an actual penal investigation. [67] 3. WERE THE DEFENDANTS ARBITRARILY DETAINED IN BREACH OF S. 9 OF THE CHARTER ? [ 54 ] The defendants argue that they were unlawfully detained as of the moment the controllers stopped them.

The Prosecutor replies that it was instead a lawful detention of short duration, which was carried out as part of an inspection to ensure compliance with the ATST . 3.1 Applicable law [ 55 ] In general, the purpose of s. 9 of the Charter is to protect individual liberty from unjustified state interference. [68] [ 56 ] Indeed, ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. [69] [ 57 ] Detention for Charter purposes arises when an agent of the state assumes control over the movement of a person by a direction or demand that may have significant legal consequences. [70] [ 58 ] However, only arbitrary detention is a violation of s. 9 of the Charter .

It follows that lawful detention is not arbitrary, unless the law authorizing the detention is itself arbitrary. [71] It has been recognized that the valid interception of a driver infringes the s. 9 Charter right, but that the infringement is justifiable. [72] [ 59 ] Furthermore, persons are not necessarily detained when they voluntarily provide their name and address to a peace officer. [73] 3.2 Application to the facts [ 60 ] For the following reasons, the Court finds that the defendants were detained only once an officer gave them the signal to stop, from which point they were no longer free to leave. [ 61 ] That detention was not arbitrary, however, because it was justified under s. 67 of the ATST , and the controllers limited their inspection to what was necessary for the purposes of the law. [74] [ 62 ] In addition, controllers in uniform quickly informed the defendants of the reasons they had been stopped. [75] [ 63 ] The Court also notes that controllers are peace officers authorized to monitor and control highway transportation of persons with respect to any road vehicle used to provide transportation, whether for remuneration or not. [76] 4.

HAVE THE DEFENDANTS ESTABLISHED A BREACH OF S. 10 OF THE CHARTER ? [ 64 ] The defendants argue that they were under investigative detention the moment the controllers stopped them.

That means the controllers had an obligation to inform them of the reasons for their detention, of their right to silence, and to allow them to retain and instruct counsel. [77] They add that undercover officers had to identify themselves [78] as controllers as soon as they made initial contact with them, especially since they were trying to get them to make an incriminating statement. [79] [ 65 ] The Prosecutor argues that the controllers have no obligation to provide the defendants with the opportunity to contact counsel. [ 66 ] The Court rejects the defendants’ argument for the following reasons. [ 67 ] First, any contact between a peace officer and a citizen, even a suspicious one, does not necessarily trigger the application of the s. 10 Charter right. [80] [ 68 ] In addition, the controllers had no obligation to inform the defendants of their right to counsel or allow them to exercise that right since a lawful detention related to highway safety does not trigger the application of that right. [81] [ 69 ] It has also been recognized that a person is not detained within the meaning of the Charter when they readily identify themselves to peace officers using a ruse to confirm their identity on the street. [82] [ 70 ] Furthermore, the short inspection authorized by s. 67 of the ATST is incompatible with the right to counsel.

Rather, there is an implicit limit on the right to counsel, which ends as soon as the inspection authorized by law has been completed. [83] [ 71 ] Last, the Court notes that the defendants were detained for only a short period: 11 minutes in the case of Mr. Kioko, and 30 minutes in the case of Mr. Aouichi. 5.

SHOULD THE EVIDENCE OBTAINED BE EXCLUDED UNDER S. 24(2) OF THE CHARTER ? [ 72 ] Although the defendants have not established that their fundamental rights were infringed, the Court will perform the s. 24(2) Charter analysis because these are the key cases. [ 73 ] Evidence obtained pursuant to a Charter breach is not automatically excluded. [84] The person seeking to have evidence excluded must establish that the exclusion of the evidence would bring the administration of justice into disrepute having regard to all the circumstances. [85] To this end, the Court must examine the following factors: (1) the seriousness of the Charter - infringing state conduct, (2) the impact of the breach on the interests of the defendants, and (3) society’s interest in the adjudication of the case on its merits. [86]

5.1 The seriousness of the Charter - infringing state conduct [ 74 ] At this stage, the Court must consider the controllers’ conduct as a whole. [87] The more severe or deliberate the state conduct that led to the infringement of rights, the greater the need for the Court to dissociate itself from that conduct by excluding evidence linked to it in order to preserve public confidence in the rule of law. [88] [ 75 ] Although the controllers’ good faith is an important factor, [89] it cannot be relied on if the Charter violation stems from an officer’s unreasonable error or ignorance as to the scope of his or her authority, [90] because the controllers are expected to know what the law is [91] and to ensure that their practices respect the developments in the case law concerning the Charter . [ 76 ] The cumulative effect of several Charter violations can increase the infringing nature of state conduct. [92] However, the administration of justice will be brought into disrepute where evidence essential to substantiate the charge is excluded because of a trivial breach of the Charter . [93] [ 77 ] In this case, the defendants had only a reduced expectation of privacy in regard to their vehicle.

The lower the expectation of privacy, the less serious the breach. [94] In addition, most of the evidence whose admissibility is challenged is not conscriptive; it exists independently of any breach. [ 78 ] Also, since the offending vehicles had no distinctive markings, making the alleged offence difficult to detect, the controllers merely used a non-intrusive technique, that is, the public UberX application, to verify compliance with the ATST . [95] [ 79 ] Furthermore, the defendants’ route was supervised for only a very short period [96] and in the public interest. [97] In addition, geolocation is an integral part of the UberX application, so the Court must infer that the defendants freely consented to having the public follow their movements. [98] The defendants were detained for only a short period. [99] In this case, the alleged breaches are on the lowest end of the scale of seriousness. [ 80 ] This factor favours the inclusion of the evidence. 5.2 The incidence of the breach on the defendants’ rights [ 81 ] This criterion bears on the seriousness of the breach from the defendants’ perspective. [100] The inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. [101] The greater the impact of the breach on the guaranteed right, the greater the risk that admission of the evidence may signal to citizens that Charter rights are of little actual avail. [102] [ 82 ] In this case, the incidence of the breach on the defendants’ rights is minimal.

The use of the UberX application lasted only a few minutes, and the information obtained did not involve intimate biographical data. [103] [ 83 ] This factor favours the inclusion of the evidence. 5.3 Society’s interest in the adjudication of the case on its merits [ 84 ] The examination of this factor reflects society’s interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. [104] [ 85 ] It must be assessed taking into consideration all of the circumstances and must not trump all other considerations. [105] [ 86 ] In short, the Court must ask itself whether the truth - seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. [106] This entails considering the reliability of the evidence and its importance to the prosecutor’s case . [107] [ 87 ] In this case, the ATST is a public interest statute that concerns, inter alia , the safety of transported passengers and of road users. [108] Regulatory legislation involves a shift of emphasis from the protection of individual interests to the protection of public and societal interests. [109] [ 88 ] This factor also favours the inclusion of the evidence. 5.4 The weighing of all of the criteria [ 89 ] At this stage, the Court must determine, in light of all of the circumstances, whether the use of the evidence obtained in breach of the Charter brings the administration of justice into disrepute. [ 90 ] The three avenues of inquiry engaged when determining whether evidence should be admitted [110] must be weighed. [ 91 ] The analysis is qualitative, not quantitative. [111] [ 92 ] In light of all of the circumstances, the Court is of the view that the exclusion of the evidence obtained would bring the administration of justice into disrepute.

FOR ALL OF THESE REASONS, THE COURT: DISMISSES the motion to exclude evidence

__________________________________ Serge CIMON, J.C.Q. Mtre Karine PETROFF Mtre Émilie MORAN Counsel for the Prosecutor Mtre Marc-Antoine CARETTE Mtre Vincent R.-PAQUET CARETTE DESJARDINS Counsel for the defendants Hearing date: Prosecutor’s written submissions: Defendants’ reply: May 3, 2018 June 6, 2018 July 6, 2018