R. v. Voong, 2018 ONCJ 352

ONTARIO COURT OF JUSTICE (TORONTO REGION) CITATION: R. v. Voong, 2018 ONCJ 352 DATE: May 25, 2018 HER MAJESTY THE QUEEN Respondent - And – KHIN VOONG Applicant Ruling on Search of MTO Driver Licence Database Submissions: 18, 23 April 2018; Judgment: 25 May 2018 (49 paras.) Counsel for Applicant: Alan D. Gold, Laura J. Metcalfe, Alex I. Palamarek Counsel for Respondent: David A. Mitchell, John Scutt Libman J: - [1] We live in a highly regulated society. From the air we breathe to the food we eat, there is very little that is not subject to some form ofregulation.

From waking to sleeping, as Justice Cory pointed out in R v Wholesale Travel Group Inc., (SCC), [1991] 3S.C.R. 154, the regulatory measures we benefit from are often taken for granted. [2] There is probably no activity more subject to regulation than that involving motor vehicles.

This is borne out by the most recentstatistics for provincial offences court activity which are posted and publicly available on the website of the Ontario Court of Justice.According to these figures, between January 2017 to December 2017 charges under the Highway Traffic Act, R.S.O. 1990, c.H.8, theprovincial statute regulating motor vehicles, accounted for 82.5% of all offences under Ontario statutes. In terms of volume, thistranslates to 1,290,641 out of 1,564,070 of the total number of charges in the province.

When the associated activity of vehicularinsurance is taken into account, the 107,222 charges under the Compulsory Automobile Insurance Act, R.S.O. 1990, c.C.25, add another6.9% of Ontario charges to this number, resulting in a total of 90% of all provincial offences last year involving motor vehicles in oneform or the other. [3] It is no exaggeration to say, then, that the police, more often than not, are involved in motor vehicle investigations, especially forminor or provincial offences. [4] In this case, the authorities came to suspect that the applicant, Khin Voong, was the holder of several fraudulently obtained driver’slicences which he had used in the past.

Indeed, it is an offence under s.35(1) of the Highway Traffic Act to retain more than one driver’slicence, or to be in possession of one that is obtained fraudulently. [5] The Act also authorizes the use of photo-comparison technology to compare the photographs taken of any applicants for or holders ofa driver’s licence or photo card: s.32.2. [6] It was in this manner that the authorities came to believe that a number of other driver’s licences, issued under the names of AndyLau, Junior Ma Fiah, Leon Li, Phuc Yu, Bruce Chan, Jackie Cheung and Bruce Li were one and the same person. [7] Persons using driver’s licences in some of these names were charged, in fact, by the police with Criminal Code drinking and drivingand other offences in 2003 (Bruce Li) and 2004 (Jackie Cheung), as well as 2012 (Bruce Chan).

However, the individual using thesenames never showed up for court after being released on bail and has never been located afterward. [8] In 2015, using the facial recognition or photo comparison technology at its disposal, a search of the Ministry of Transportation(MTO) Driver Licence database led the authorities to believe the person who used these seven other identification documents is theapplicant, Khin Voong. [9] It is the legality of the basis used by the authorities to search the MTO driver licence database that is the subject of this Charter ofRights

section 8 ruling. More particularly, it is argued by the defence that when the police investigated Mr. Voong for offences under theCriminal Code for using forged documents, such as a Canadian Citizenship Card in support of the driver licence application under one of

the above names, they did so illegally by failing to obtain, in advance, judicial authorization for a search warrant.

Conversely, the position of the Crown is that no search warrant is required, as a person has no right of privacy in a photograph and information submitted in support of an application for a driver’s licence, thus no s.8 right against unreasonable search or seizure is engaged. [ 10 ] The position of the defence, then, is that the search of the applicant’s name by the police in the MTO database, the use of photo comparison technology search to compare his photograph to photographs of others in the database, and subsequent use by the police of the applicant’s information provided by the MTO constitutes a search and seizure, thereby triggering his rights under s.8 of the Charter . [ 11 ] According to the defence, the applicant has both a subjective and objectively held reasonable expectation of privacy in his photograph submitted to and in the possession of the MTO.

That is to say, it would be used by the authorities for Highway Traffic Act purposes, as opposed to a Criminal Code investigation. This provides the foundation for the applicant to assert that his right to be protected against unreasonable search and seizure under s.8 of the Charter of Rights has been violated by the police. [ 12 ] As the search and seizure of the applicant’s name, photograph and use of photo comparison technology was done by the police without a search warrant, it is presumptively unreasonable, thereby resulting in the Crown bearing the onus of rebutting this presumption.

Its failure to do so renders the search of the MTO database unlawful, thereby mandating exclusion of the evidence pursuant to s.24(2) of the Charter . [ 13 ] In support of its position, the defence relies upon the Ontario Court of Appeal’s recent decision in R v Orlandis-Habsburgo , 2017 ONCA 649 at para. 39 , where it was held that when deciding whether state conduct amounts to a search or seizure, “the focus is not so much on the nature of the state conduct as it is on the impact of the state conduct on the privacy interests of the s.8 claimant.

State conduct that, in the totality of the circumstances, infringes a claimant’s reasonable expectation of privacy will be treated as a search or seizure for the purposes of s.8 ”. [ 14 ] With respect, then, to the information contained on the MTO database, including the photo comparison technology search and the information subsequently obtained by the police in its warrantless search, the defence characterizes it as “personal, biographical information” of the applicant.

As such, there is a reasonable expectation of privacy on his part so as to attract constitutional protection under s.8 of the Charter of Rights . [ 15 ] The defence argues that the applicant did not provide consent or give permission to either the MTO or police to use his photograph and associated information, such as date of birth, sex and address, other than to identify him on his driver’s licence for Highway Traffic Act purposes.

Hence, the use of his photograph for a criminal investigation extends beyond the right to privacy inherent in his driver’s licence photograph. [ 16 ] Referring to the Supreme Court of Canada’s recent decision in R v Marakah , 2017 SCC 59 , the defence asserts that the Charter s.8 protection encompasses disclosure of private information to individuals outside of those to whom, or for purposes other than for which, it was divulged in the first place.

Hence, when one state agent passes on information to another arm of government that the former is entitled to collect but the latter uses for investigative and enforcement purposes, the Charter -protected interests of the person crystalize: see, for example, R v Jarvis , 2002 SCC 73 . [ 17 ] In short, it is argued on behalf of the applicant that he has a residual continuing privacy interest protecting against the subsequent use or disclosure, and potential retention, of information that has been divulged for a specific or limited purpose.

Moreover, exclusive control over such information is not the decisive factor in determining whether or not the person holds an objectively reasonable expectation of privacy over the subject information. Rather, control is exercised when the person to whom the information relates chooses to reveal or divulge the information to a specific person and for a specific purpose: R v Marakah , para 44 , per McLachlin C.J. [ 18 ] This is not to say, as Mr. Gold argues, that the police are never permitted to access information in the MTO database.

In keeping with other investigative information collected by others for non-criminal purposes, such as cell-tower records or DNA in blood samples, the authorities may gain access to it through prior judicial authorization. But as here, the information collected in the MTO database, including the photograph of the driver on one’s licence, is being used for an entirely different purpose than that for which it is collected, and indeed provided by the applicant.

Consequently, his right of privacy has not been relinquished and remains objectively reasonable in the circumstances. [ 19 ] Crown counsel, on the other hand, argues that the Ministry of Transportation has the authority to maintain a driver licence database which is essentially a registry of all persons licensed to operate motor vehicles in the province of Ontario. As such, the database contains information provided at the time of a driver licence application or renewal, including the person’s name, address, date of birth, sex and digitized photo of the person’s face.

It is this information which essentially comprises the person’s driver’s licence. [ 20 ] Persons who apply for driver licences are informed by the MTO as to the privacy policies that apply, including who may access the driver licence database. This is set out in a document entitled “Important Privacy Information” and a pamphlet “You and Your Personal Information at the Ministry of Transportation”. These documents indicate that the MTO has the authority under s.205 of the Highway Traffic Act to collect and disclose such information to other agencies, including law enforcement.

In particular, notes the Crown, since the submission of false information in support of a driver licence application constitutes an offence, the MTO has the authority to notify the police regarding such offences, and in its capacity as a complainant or victim, provide information and documents in support of its complaint. [ 21 ] In the result, the applicant has neither a subjective expectation of privacy, submits the Crown, in the information submitted in a driver licence application or renewal, including a digital photograph required for such purposes, nor is the person’s expectation of privacy one that is objectively reasonable. [ 22 ] With respect to the applicant’s subjective expectation of privacy, Crown counsel submits that while he has a direct interest in the driver licence and photograph under his real name, this does not extend to the subject matter of the alleged search which is not his lawful driver licence photo but any false driver licence information associated to his photograph.

Moreover, given that the applicant voluntarily submitted his photograph to MTO in order to exercise the privilege of obtaining a driving licence, he could not have subjectively

expected that his photograph, when accompanied with false information as to name, date of birth and address, would engage anexpectation of privacy. [23] And even if the applicant is found to have a subjective expectation of privacy, notes Mr. Mitchell, it cannot be said to be objectivelyreasonable. Having regard to the “totality of the circumstances” surrounding the impugned search (see R v Edwards, (SCC), [1996] 1 S.C.R. 128 at para. 45), including the place where it occurred, the privacy of the subject matter and the applicant’scontrol over the subject matter, no objective expectation of privacy arises.

Indeed, a person’s name, address, date of birth and facialphotograph submitted to a regulatory branch of government in order to obtain a driver’s licence is not the type of core personalinformation involving “intimate details” of a person’s life and their personal choices that s.8 of the Charter of Rights is intended toprotect. [24] In evaluating these competing arguments of the applicant and respondent, it is important to acknowledge at the outset that privacy isnot “an all or nothing right”: R v Mills, [1993] 3 S.C.R. 668 at para. 108. [25] Privacy is a “protean concept”.

It is often no simple matter where the “reasonableness” line of one’s expectation of privacy is to bedrawn: see R v Tessling, 2004 SCC 67 at para.25. [26] Binnie J., on behalf of the Supreme Court in Tessling, noted that the privacy interests protected by s.8 may include personal privacy,territorial privacy and informational privacy (para. 20).

With respect to informational privacy, which the applicant’s driver’s licence andsupporting documentation most closely approximates, in my respectful opinion, it contrasts with the privacy or bodily integrity of theperson, and the places or location where one lives and works. [27] The person’s privacy interest may not be confined, however, to only one of these categories.

For example, in Tessling, theinformational privacy about the defendant also implicated his territorial privacy, since the police used an imaging system from an aircraftto detect heat patterns emanating from his house, without actually entering it. [28] Informational privacy includes “the claim of individuals, groups or institutions to determine for themselves when, how, and to whatextent information about them is communicated to others.” (para. 23) [29] Informational privacy will be considered to be worthy of greater constitutional protection where it contains “a biographical core ofpersonal information”: R v Plant, (SCC), [1993] 3 S.C.R. 281 at para. 20, since such information fosters the underlyingvalues of dignity, integrity and autonomy. [30] Information that may be lacking in biographical core value, though, may be accorded a higher degree of privacy depending upon theuse to which it may put and the details it reveals.

Hence, the subscriber information matching a publicly available IP address (name,address and telephone number) was held by the Supreme Court in R v Spencer, 2014 SCC 43 at para. 51 to engage “a high level ofinformational privacy” since the disclosure of such information would “often amount to the identification of a user with intimate orsensitive activities being carried online, usually on the understanding that these activities would be anonymous.” (para. 66) [31] On the other hand, not every search of information communicated by the person, such as a text message on a cell phone andphotograph, is “inevitably a major invasion of privacy nor inherently degrading”: R v Fearon, 2014 SCC 77, per Cromwell J. at para. 61. [32] What, then, of the privacy interest of the applicant in applying for a driver’s licence, and the supporting documentation, including aphotograph, that is stored in the MTO driver licence database, and subsequently used by the police to confirm the applicant’s identity, aswell as that of any other person that the police suspect may be improperly relying upon it. [33] The Supreme Court in Marakah at para. 11 set out four discrete lines of inquiry in applying the “totality of circumstances” approachin determining whether a reasonable expectation of privacy exists:

(1) What was the subject of the alleged search?

(2) Did the claimanthave a direct interest in the subject matter?

(3) Did the claimant have a subjective expectation of privacy in the subject matter?

(4) If so,was the claimant’s subjective expectation of privacy objectively reasonable? [34] I am of the respectful opinion that while the applicant has a direct interest in the information set out in his application for a driver’slicence and supporting documentation contained in the MTO database, since he was the one who voluntarily supplied such informationin the first place (Marakah, para. 21), he possessed neither a subjective expectation of privacy in the subject of the search conducted bythe police of the MTO database in question, nor one that in any event is objectively reasonable. [35] I reach these conclusions for a number of reasons. [36] To begin, it is important to note that the applicant was participating in a highly regulated activity, namely applying for a driverlicence in order to be granted the “privilege” of driving a motor vehicle: Horsefield v Registrar of Motor Vehicles (1999), (ON CA), 44 O.R. (3d) 73 (C.A.). [37] As the statistics for provincial offences indicate, motor vehicle infractions are the most common form of regulatory offence in theprovince.

As such, holders of driver’s licences issued by the MTO are routinely asked to produce such documents, along with proof ofownership, insurance and registration, when stopped by the police. The police, in turn, verify such information through the MTOdatabase. Applicants for driver’s licences are informed by the MTO, and must be taken to understand, that this identification informationwill be shared among law enforcement agencies.

Indeed, it is a requirement to certify that the information submitted in support of adriver licence is correct, and to acknowledge that false information constitutes an offence. [38] It follows that information such as name, address, date of birth and sex contained on a driver’s licence, and stored by the regulator,MTO, on its driver licence database, attracts a considerably lower degree of privacy, and constitutional shelter, under s.8 of the Charter,in this context, than the same information does in relation to an Internet service provider or subscriber. [39] Put another way, in the heavily regulated activity of driving a motor vehicle, the quality of information submitted to MTO in support

of a driver’s licence application, including the person’s image on the driver’s licence, is of little core biographical worth or value. It reveals nothing more about the person than what it is indicated and reproduced on the person’s driver’s licence; it does not unlock a secret path revealing activities or predilections about the person that are intended to be shielded or cloaked with anonymity.

In short, revelation to the authorities of the information retained on the MTO driver licence database does not constitute an affront to human dignity. [ 40 ] Much less do such persons, in the context of driving a motor vehicle, have a subjectively held privacy interest protecting them from the police verifying such information to confirm the veracity of their own identity, or others seeking to personate them or fraudulently rely upon their identification documents.

To the contrary, it is in the person’s interest that the regulator and police do so, in order to prevent others from falsely using their driving documents and exposing them to liability for other motor vehicle offences, or worse, as a result. [ 41 ] Likewise, the integrity of the MTO driver licence database depends upon the authorities having the means to effectively monitor the authenticity of the information and supporting documents submitted to it in support of the issuance of a driver’s licence.

Law enforcement searches of both legitimate and false or questionable information contained on the driver licence database furthers this salutary objective. [ 42 ] I appreciate that while the subjective expectation of privacy is an important consideration, its absence should not be used “too quickly” to undermine the constitutional protection safeguarded under s.8 of the Charter of Rights : Tessling , para. 42 .

One’s expectation of privacy, after all, is a normative standard, and not a descriptive one. [ 43 ] However, viewed objectively, holders of driver’s licences cannot reasonably expect that law enforcement officials will not take steps to verify the authenticity of their identification documents, and those of others who apply to drive a motor vehicle and may seek to submit a false application using their identification documentation. Prospective applicants are told this when they submit an application to MTO.

Indeed, they are cautioned, and acknowledge in writing, that it is an offence to submit false documentation or make false statements in support of obtaining a driver’s licence. [ 44 ] In much the same manner that a person whose car is pulled over in a R.I.D.E. spot-check or for driving through a stop sign can expect the police to investigate their driving conduct under the Highway Traffic Act , so too do such persons expect to be asked to produce their driving documents, including confirmation that their identification on their driver’s licence is satisfactory to the investigating officer.

Through running checks on the MTO database in their police cruisers, officers routinely perform such searches. [ 45 ] The place where the search in the instant case occurs, namely, the MTO driver licence database, the nature of the “tombstone” information submitted, whether in relation to a truthful application or a falsified one, and the lack of any control, let alone exclusive control, applicants have over such information once submitted to the MTO, all strongly militate against there being a reasonably held expectation of privacy on an objective basis. [ 46 ] Groups that routinely access such information range from insurance companies to financial institutions to governmental agencies including the courts and police.

The breadth of such agencies entitled to access such information strongly supports, in my respectful opinion, the proposition that those who apply to the MTO for a driver’s licence possess no subjective expectation of privacy in their name, address, sex, date of birth and accompanying digital photograph, all of which information appears on the face of the person’s driver licence. [ 47 ] Returning to the totality of the circumstances line of inquiry, I conclude that the applicant does not possess a subjective expectation of privacy in a police search of the MTO driver licence database either in relation to his own driver’s licence application, or one involving another party using fraudulent identification documents including his/her own. [ 48 ] If I am incorrect in finding that no subjective expectation of privacy obtains with respect to such information, the applicant’s subjective expectation of privacy is one that is manifestly not objectively reasonable. [ 49 ] For these reasons, I respectfully conclude that the applicant’s challenge under s.8 of the Charter of Rights and Freedoms to the search by the police of the MTO driver licence database, and subsequent use of such information, must be dismissed.

R. Libman J. Date: 25 May 2018