R. v. Roudiani, 2018 BCSC 1101

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Roudiani, 2018 BCSC 1101 Date: 20180615 Docket: 27326 Registry: Vancouver Regina v. Omid Roudiani Before: The Honourable Mr. Justice N. Smith Oral Ruling on Voir Dire No. 1 Re Breach of s. 8 of the Charter Counsel for the Crown: S.M. Black Counsel for the Accused: J. Narwal A. Boldt, Articling Student Place and Dates of Trial: Vancouver, B.C. May 28, 29, and 30, 2018 Place and Date of Judgment: Vancouver, B.C.

June 15, 2018 [ 1 ] THE COURT: The accused, Omid Roudiani, is charged with aggravated assault arising from an incident alleged to have occurred near the intersection of Granville and Smithe Streets in Vancouver. [ 2 ] That location is close to a number of nightclubs and bars that participate in a program called BarWatch. The program includes a system to photograph and electronically identify patrons and to temporarily store that information.

By accessing that data at one of those establishments, police were able to compare the nightclub’s photograph of the accused with the alleged assailant shown on other surveillance video and, crucially, to obtain the accused’s name. The accused says that in obtaining that information, the police violated his s. 8 Charter right to be secure against unreasonable search and seizure and seeks exclusion of that evidence. [ 3 ] These reasons deal only with the question of whether there has been a breach of s. 8.

By agreement of counsel, the further question of whether any such breach should result in exclusion of the evidence under s. 24(2) has not yet been argued. [ 4 ] The alleged assault occurred at approximately 2:30 a.m. on October 25, 2015. Investigating the matter later that day, Detective Constable Webb of the Vancouver Police Department interviewed a doorman at a nearby bar who said he had witnessed the assault. That witness reviewed video recordings from a security camera and identified a man in a red chequered shirt as the assailant.

Other nearby businesses had similar security cameras showing the street in the immediate vicinity of their entrances. [ 5 ] Detective Constable Webb reviewed videos from some of those other businesses, including one next door to the Studio Nightclub on Granville Street.

From that video, he identified a man who appeared to be the same person as the alleged assailant leaving the Studio Nightclub shortly before the time of the alleged assault. [ 6 ] As at other establishments participating in BarWatch, patrons entering the Studio Nightclub were photographed and presented identification that was electronically scanned. One purpose of that system is apparently to match that information to a list of people who have been barred from entering participating establishments.

The system allows retrieval of the photograph, accompanied by the person’s name and age. [ 7 ] Constable Webb asked the Studio manager to show him the data from the previous night. He identified a photograph that he believed to be of the same man he had seen in the other videos. The information accompanying the photograph contained the name of the accused, his age of 23, and an entry time to the nightclub of 12:40 a.m. [ 8 ] Constable Webb reviewed the information on the computer screen and made notes. He did not obtain a physical copy of the information at the time.

The information collected from the studio and other participating businesses is retained on a central server, but is deleted after 24 hours, unless the police ask for it to be preserved. [ 9 ] Sergeant Kenny was, at the relevant time, the police department’s BarWatch coordinator. His duties included liaison with the company that maintained the database. [ 10 ] Sergeant Kenny has no specific recollection of this investigation but testified his practice after being told of an investigation in these circumstances would have been to contact the company to ask that the data be secured.

He would also obtain an electronic token

number that allowed access to the data for up to 24 hours. [ 11 ] Constable Webb received such a token number from Sergeant Kenny and, using a computer at his office, accessed the database on October 27, 2015. That allowed him to print out the same information about the accused that he had seen on the screen at the nightclub: the photograph, name, age, and time of entry.

He subsequently used other databases to determine that a person of that name and age held a B.C. driver’s licence and to find an address. [ 12 ] Constable Webb’s further review of the data also allowed him to print out photos and names of four people who had entered the nightclub at the same time as the accused. Constable Webb said he contacted them as potential witnesses, but they declined to provide statements.

The information about those other individuals was redacted from the exhibit entered on the voir dire . [ 13 ] On this voir dire , the accused does not object to the admissibility of the surveillance videos showing someone who is alleged to have been him on the street. The objection is to the photograph with associated name and age that was obtained from the Studio Nightclub.

Defence counsel submits that the police should have obtained judicial authorization before requesting that information from the nightclub. [ 14 ] The question of when an individual has sufficient privacy interest to attract the protection of s. 8 has been the subject of a series of Supreme Court of Canada decisions, most recently R. v. Marakah , 2017 SCC 59 . The Court in that case summarized the approach to be taken at paras. 10 and 11: 10

Section 8 applies “where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access” . . . To claim s. 8 protection, a claimant must first establish a reasonable expectation of privacy in the subject matter of the search, i.e., that the person subjectively expected it would be private and that this expectation was objectively reasonable . . .

Whether the claimant had a reasonable expectation of privacy must be assessed in “the totality of the circumstances” . . . 11 In considering the totality of the circumstances, four “lines of inquiry” . . . guide the court’s analysis: 1. What was the subject matter of the alleged search? 2. Did the claimant have 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? [Citations omitted] [ 15 ] In Marakah , the majority of the Court found that the accused had a reasonable expectation of privacy in text messages that he had sent and that had been recovered from the recipient’s phone. However, the individualized nature of the inquiry is illustrated by the Chief Justice’s comment at paragraph 5 that a conclusion that a text message can in some circumstances attract a reasonable expectation of privacy does not necessarily mean that will always be the case with such communications.

The need for careful consideration of the circumstances becomes even more obvious when, as here, the Court is dealing with an entirely different kind of information. [ 16 ] That analysis is conducted with reference to the four factors repeated in Marakah , recognizing that they do not form a precise factual test, but are, as the Supreme Court of Canada said in R. v. Spencer , 2014 SCC 43 at paragraph 18 , main headings under which a great many factors may be grouped for analytical convenience.

The four factors are interrelated and may overlap. [ 17 ] The exercise has been described as a normative, rather than a purely factual analysis--one in which the court must consider societal and social norms in making a valued judgment about the state’s ability to intrude on an individual's privacy: R. v. Pelucco , 2015 BCCA 370 at paras. 59 to 63 . [ 18 ] In identifying the subject matter of the alleged search, the court must consider the tendency of the information sought to support inferences in relation to other personal information.

Does it, for example, reveal intimate details of an individual's lifestyle and personal choices?: Spencer at paras. 27 to 31 . [ 19 ] In Spencer , the Court was dealing with subscriber information associated with the IP address of a computer that had been used to access and store child pornography.

The court said at paragraph 47 that subscriber information linking particular kinds of information to an individual “may implicate privacy interests relating not simply to the person’s name or address but to his . . . identity as the source, possessor or user of that information.” [ 20 ] The Crown argues that in this case, the information consisted solely of a name and a photograph of a person who attended a publicly-accessible nightclub, and that no further inferences – and in particular, no further inferences about the accused’s lifestyle or personal choices--could be drawn from that information standing alone. [ 21 ] There are certainly cases where a person's name alone has not been found to be private, and even the Court in Spencer at paragraph 47 distinguished the situation before it from one in which only a name and address was provided. [ 22 ] In R. v.

Wong , 2016 BCSC 1834 , police were told the cellular telephone number of a person allegedly engaged in the production of methamphetamine. The informant knew only a first name and police obtained the full name and address of the person associated with that number from the service provider.

The Court held there was no link to any private activity or other content on the phone and that the name and address of a subscriber to a cellular phone service was not, in itself, subject to a reasonable expectation of privacy. [ 23 ] There are other cases in which a reasonable expectation of privacy has not been found in relation to information more detailed than simply a name. In R. v. Law , 2017 BCSC 1241 , police obtained, without a warrant and with permission from the management of an

apartment building, the accused’s unique key fob information, a floor plan, and surveillance of the accused entering the subject apartment from the hallway. The Court held this information did not reveal intimate personal or core biographical details and did not attract a reasonable expectation of privacy.

It must be noted that in Law the police knew the accused’s name before seeking the information at issue. [ 24 ] I could refer to many more cases, but the few I have referred to are sufficient to indicate the highly fact-specific nature of the inquiry. [ 25 ] It is true that, as the Crown submits, individuals routinely give their names to a wide variety of other people for countless reasons. It cannot be said there will always be a reasonable expectation of privacy.

But on the facts of this case, the discovery of the accused’s name must be viewed in the context of the other information that was gathered at around the same time. [ 26 ] In addition to the photograph of the accused that was taken on his entry to the nightclub, police had the surveillance footage taken on the street. Assuming for purposes of this voir dire that the person shown in the surveillance footage is, in fact, the same person who was photographed entering the nightclub, that photographic information provided a reasonably complete picture of his whereabouts and movements over a period of about two hours.

Most important, it provided a name of the person seen on the street. [ 27 ] Counsel for the accused uses highly overwrought language, referring to an “archipelago of observation”, an “expanding parallel surveillance state,” and “imagery of an Orwellian dystopia.” A person’s expectation of privacy is surely limited on a public street or in a crowded nightclub when his or her activities can be observed by anyone who happens to be nearby. But the implications of that visibility may be tempered by anonymity. The Supreme Court in Spencer said at para. 44 : 44. ...

The mere fact that someone leaves the privacy of their home and enters a public space does not mean that the person abandons all of his or her privacy rights, despite the fact that as a practical matter, such a person may not be able to control who observes him or her in public. Thus, in order to uphold the protection of privacy rights in some contexts, we must recognize anonymity as one conception of privacy: .... [Citation omitted] [ 28 ] Here the information at issue must be seen not only as the name, but the ability to connect the name to the otherwise anonymous video surveillance on the street.

It is the combination with that video surveillance that gives the name particular significance. [ 29 ] A person’s name is clearly personal information in which he or she has an interest, although it may be disclosed without hesitation in a variety of social and commercial interactions. There is, in most such cases, the option of not disclosing it, even if that means choosing not to proceed with a particular transaction.

The ability to withhold the name must be seen as a key component of the anonymity that the Court says may sometimes be part of the right to privacy. [ 30 ] The question of whether the accused had a subjective expectation of privacy is one that I find somewhat artificial in the context of this case. [ 31 ] The accused has given no evidence of what his subjective expectations were when he produced his identification for scanning and stood to have his picture taken in the nightclub. In some of the decided cases, the Court had evidence of the accused’s subjective expectation.

In other cases, the subjective expectation was inferred from the circumstances, although that would appear to turn a subjective test into an objective one. [ 32 ] To the extent patrons entering a nightclub would give the matter any thought at all, I expect there would be a wide variance in their subjective expectations. Some might see the identification procedure as part of a private transaction between themselves and the nightclub for the limited purpose of verifying that they are of legal drinking age and that they have not been previously barred from entering.

Those people would not expect the information to be shared with anyone. [ 33 ] Others would recognize it is part of a system designed for safety of patrons and would accept a potential for its use in the investigation of any incident that occurred on the premises.

Still others might recognize a security interest that extended to members of the public on the surrounding streets onto which sometimes intoxicated patrons emerge. [ 34 ] I presume that if the accused had given evidence on this matter, he would have said something to the effect that he did not expect the information he voluntarily gave the nightclub for purposes of entry to be shared with agents of the state. But such evidence would likely have been no more than an opinion coloured by subsequent events, rather than reliable factual evidence of what he thought at the time. [ 35 ] However, in R. v.

Tessling , 2004 SCC 67 , the Court said at paragraph 42 that although the subjective expectation of privacy is important “its absence should not be used too quickly to undermine the protection afforded by s. 8 to the values of a free and democratic society.” [ 36 ] In R. v. Patrick , 2009 SCC 17 , the Court said at paragraph 37 that the subjective stage of the analysis does not present “a high hurdle”. [ 37 ] The more helpful analysis in this case centres on the question of whether any subjective expectation of privacy would have been objectively reasonable.

The Crown says consideration of factors set out in Tessling should lead to a conclusion that there was no reasonable expectation of privacy. The information was located at a public place where it had been voluntarily provided in the context of a relationship between a business and its customer that did not involve any element of confidentiality.

It was easily accessible through non-intrusive investigation. [ 38 ] The evidence gathered falls into the category of informational privacy which the Court in Tessling described as the ability of individuals to decide for themselves when and how information about them is communicated to others.

[39] Tessling involved use of an airplane with a camera that recorded images of thermal energy or heat radiating from a building. Itdid not permit identification of the heat sources. The Court held that information showing that heat sources of an unknown descriptionwere present in the building said nothing about the private life of the accused and did not attract constitutional protection.

Section 8protects people, not places. [40] In this case, I find that the mere inclusion of the accused’s name, previously unknown to the police, makes the informationpersonal by definition. [41] Many of the decided cases, including Spencer, have considered the surrounding contractual and statutory circumstances to berelevant. There is no evidence of any posted notice in the nightclub informing customers about how the information collected by theBarWatch system would be used.

There is therefore nothing of relevance that could be imported into the terms of a contract between theaccused and the nightclub. [42] However, the club was subject to the provisions of the Personal Information Protection Act, S.B.C. 2003, c. 63 [PIPA]. Section6 of PIPA provides that an organization which, for the purpose of this case, includes a business like the Studio Nightclub, must notcollect or disclose personal information without the consent of the individual. [43]

Section 18(

i) and (

j) of PIPA sets out a number of circumstances in which the information may be disclosed without consent,including: (

i) the disclosure is for the purpose of complying with a subpoena, warrant or order issued or made by a court, person or body withjurisdiction to compel the production of personal information, (

j) the disclosure is to a public body or a law enforcement agency in Canada, concerning an offence under the laws of Canada or aprovince, to assist in an investigation, or in the making of a decision to undertake an investigation, (

i) to determine whether the offence has taken place, or (ii) to prepare for the laying of a charge or the prosecution of the offence, [44] The fact that provincial legislation does or does not authorize the holder of the information to release it to the police is notdirectly relevant to the question of whether the police, in obtaining that information, have conducted a search within the meaning of s. 8of the Charter.

The existence of the provincial legislation is simply one consideration in determining whether there was a reasonableexpectation of privacy. [45] Counsel for the accused has drawn my attention to what appears to be the only occasion in which the BarWatch program wasconsidered by the Office of the Information and Privacy Commissioner for B.C. That is a decision in Cruz Ventures Ltd. (C.O.B. WildCoyote Club) (Re) [2009] B.C.I.P.C.D. No. 16.

Decided in July 2009, that case relates to a specific complaint against a specific business.The issue before the Commissioner was the collection of the information by the club, and the Commissioner determined that PIPA didnot authorize the nightclub to demand that customers consent to the scope of personal information that was collected through thescanning system. He ordered the club to stop doing so. [46] There did not appear to be any further decisions by the Commissioner, which may in part be the result of changes that havebeen made to the BarWatch system since that time.

At the time of the complaint in Cruz Ventures Ltd., the system collected not only apatron's name and age, but also the date of birth and driver's licence number. The Commissioner found that additional information to bemore sensitive than simply a name and address. It also appears that the information could be stored and retrieved for a much longer timethan the 24 hours that is now the case.

I do not know to what extent, if any, the present more limited collection and shorter retention timewere instituted in direct response to the Cruz Ventures Ltd. case. [47] Although the Commissioner was dealing only with the club's demand for information, he did say at para. 104: 104. ...

While it might be obvious that ID is examined to verify the age of customers, it would not be obvious to a reasonable personthat the information is being collected for the purpose of sharing it with law enforcement officials or to create a customer profile that willbe updated with each visit occurring within a six-month period. ... [48] The Commissioner's decision is not binding on this Court and, as I have said, there have been important changes to the systemsince then.

However, the fact that a specialized tribunal concerned with issues of privacy and protection of personal information foundthat privacy interests were engaged by a system of collecting the information is of some persuasive authority. The fact that thoseresponsible for the BarWatch system now hold the information for only 24 hours, unless they receive a preservation request from thepolice, is also evidence that they recognize a privacy interest in the information. [49] In Tessling, Mr.

Justice Binnie said at paragraph 25 that “Privacy is a protean concept, and the difficult issue is where the'reasonableness' line should be drawn.” He cited the following passage from R. v. Plant, (SCC), [1993] 3 S.C.R. 281: In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protecta biographical core of personal information which individuals in a free and democratic society would wish to maintain and control fromdissemination to the state.

This would include information which tends to reveal intimate details of the lifestyle and personal choices ofthe individual. [Emphasis added in original] [50] Mr. Justice Binnie then continued at para. 26: 26 I emphasize the word “include” because Sopinka J. was clear that his illustration (“intimate details of the lifestyle and personalchoices”) was not meant to be exhaustive, and should not be treated as such. Nevertheless, Plant clearly establishes that not allinformation an individual may wish to keep confidential necessarily enjoys s. 8 protection.

[ 51 ] This case is very close to the reasonableness line that Birnie J. referred to.

However, after considering all the factors, I find that there was a sufficient reasonable expectation of privacy that the police, in obtaining the information, were conducting a search that should have been the subject of prior judicial authorization. [ 52 ] The fact that the police could and did request the information be preserved for more than the standard 24 hours, which I find to have been a reasonable request in the circumstances, indicates there was no urgency that made it impracticable to seek a warrant. [ 53 ] I therefore conclude there was a violation of s. 8.

Whether the violation was of a nature that requires exclusion of the evidence under s. 24(2) is a matter on which I will hear further submissions from counsel. “N. Smith J.”