R. v. Childerhose Date:, 2014 BCPC 323

Citation: R. v. Childerhose Date: 20141016 2014 BCPC 0323 File No: 77948-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TIMOTHY HAROLD CHILDERHOSE RULING ON VOIR DIRE OF THE HONOURABLE JUDGE G.BROWN Counsel for the Crown: R. Randhawa Counsel for the Accused: J. Waddington Place of Hearing: Abbotsford , B.C. Date of Hearing: October 16, 2014 Date of Ruling: October 16, 2014 [ 1 ] THE COURT : This is my ruling on a voir dire under file 77948, wherein Timothy Harold Childerhose is charged with

unlawfully possessing methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. The Federal Crown proceeded by indictment. [2] On July 26th, 2012, the Abbotsford Police executed a search warrant at 32025 Pineview Avenue, Abbotsford, B.C. Mr.Childerhose was located within the house, as was a quantity of methamphetamine and other drug-related exhibits. ISSUE: [3] A cell phone was seized from the pocket of Mr. Childerhose, and the Federal Crown seeks to tender text messages from thecell phone and the cell phone number as evidence in the trial proper.

The cell phone was examined both at the scene and at the policestation. No search warrant was ever obtained to specifically search the cell phone. [4] The main issue is whether or not the cell phone could be searched by the police as a search incidental to the power of arrest.

Within that issue there needs to be a determination as to whether the search conducted here of the cell phone was a cursory search or amore in-depth search. [5] As always, if there is a finding that the accused's rights under s. 8 of the Charter were breached, one must then consider s.24(2) of the Charter to see if the admission of the cell phone evidence would bring the administration of justice into disrepute. [6] I deliver this decision with some trepidation because the Ontario Court of Appeal case of R. v.

Fearon, 2013 ONCA 106, [2013] OJ 704, deals with the state's cursory search of a cell phone, and that issue is now before the Supreme Court ofCanada. Nevertheless, it is necessary for me to decide this Abbotsford case on the law as it currently stands in our province. BACKGROUND: [7] As mentioned previously, the Abbotsford Police executed a search warrant on 32025 Pineview Avenue after having conductedsurveillance of that residence. Mr. Childerhose was one of the tenants of the property. The police undertook a dynamic forced entry ofthe premises and Mr. Childerhose was located in one of the bedrooms. Mr.

Childerhose was a primary target. There were many otheroccupants. Mr. Childerhose was placed in handcuffs and placed under arrest by Cst. Jordan. [8] Many exhibits were seized in the bedroom, including methamphetamine, packaging bags, marihuana and paraphernalia, twodigital scales, score sheets, a rifle magazine containing ammunition, and there was also security camera equipment in the room. [9] In the voir dire, Cst. Nugent gave evidence that a cell phone is a key element in a dial-a-dope operation because it may showevidence of drug orders and deliveries.

He believed he had reasonable and probable grounds to search a cell phone which had beenseized from Mr. Childerhose by another police officer. [10] Confidential sources revealed that "a fat man with a huge grey beard and long hair" was selling methamphetamine at thePineview address. [11] Cst. Nugent did not receive any calls on the cell phone, but he focused on any text messages that may be consistent with thepurchasing of drugs. Cst. Nugent located two text message streams from the cell phone, and these are contained in Exhibit A.

Oneconversation stream was with someone named Ang, and the other was with someone named Cash. Cst. Nugent had also looked at thecell phone for photographs or videos. [12] The text messages contained language consistent with drug trafficking. The messages were from July 6th to July 25th, 2012. [13] Cst. Nugent gave Mr. Childerhose his Charter warnings after the cell phone had been seized. Cst. Nugent also confirmed thatalthough he located some text messages at the Pineview house during the execution of the search warrant, he further reviewed the cellphone at the police station on the same day, i.e.

July 26th, 2012. Again, no application was ever made for a search warrant to search thecontents of the cell phone. The cell phone is a Sony Ericsson, and it is said to be found in Mr. Childerhose's right-hand pocket on theMajor Incident Flowchart. IS THE SEARCH OF THE CELL PHONE INCIDENTAL TO THE POWER OF ARREST? [14] Before examining that issue more broadly, I should determine whether the search of the cell phone was a cursory search or amore in-depth search. [15] Defence counsel argues that the search conducted by Cst. Nugent of the cell phone was more than cursory.

The period searchedcovers July 6th to July 25th, 2012 and a search was done not only at the Pineview house, but also at the police station. The text reviewedalso contained some personal information. [16] In my view, Cst. Nugent's search of the cell phone is cursory in nature. There is no forensic analysis or "data dump" of the cellphone. Indeed, Cst. Nugent's viewing of the cell phone all occurs in one day, albeit the search is conducted in two locations. Furthermore, Cst. Nugent is primarily viewing only two text streams between the cell phone user and two other persons.

The texts arenot intensely personal and the subject matter is often drug-related. [17] I also agree with Federal Crown that the search of the cell phone here involved just a few swipes of the finger. The officerwould have clicked on the message icon, he picked out two text streams and he scrolled back for, at most, a three-week period. Theremay have been some photographs and/or videos, but this cell phone was not password protected. [18] Having concluded that the police search of the cell phone was a cursory one, I still must decide if such a search is permissible asbeing incidental to the power of arrest.

If the search is not truly incidental to the power of arrest, then the accused's rights under s. 8 ofthe Charter would be violated if there was no search warrant here pertaining to the cell phone.

[19] As stated in R. v. Collins (SCC), [1987] 1 SCR 265 at page 278: Where a search is carried out without a warrant, the Crown has the burden of showing, on a balance of probabilities, that the search wasreasonable. A warrantless search will be reasonable if it is authorized by law, if the law itself is reasonable, and the manner in which thesearch was carried out is reasonable. [20] The Federal Crown essentially takes the position that a search warrant is only required to forensically examine a cell phone.

If apolice officer is conducting a cursory search of a cell phone, he is entitled to do so as a power incidental to arrest, and this law goes backto R. v. Giles, 2007 BCSC 1147 , [2007] BCJ 2918. Conversely, defence counsel submits that even a cursory search of a cellphone is highly invasive and the police ought to have obtained a search warrant, especially given that there was no urgency here. [21] In R. v. Mann, [2014] BCJ 1229, our Court of Appeal at paragraph 123 is clear that the law no longer permits police to conductwarrantless searches of the entire contents of an individual's cell phone.

The individual's privacy interest in the contents of a device, suchas a BlackBerry, outweighs the states interest in law enforcement insofar as warrantless searches are concerned. However, the courtthere is very careful to offer no comment on the permissible grounds of a cursory search or other difficult questions pertaining to searchincidental to arrest. [22] The Ontario Court of Appeal in R. v. Fearon, 2013 ONCA 106 , [2013] OJ 704, dealt more directly with the cursoryexamination of the contents of a cell phone at the time and place of arrest and later at the police station.

The court there concluded thatthe searches were within the ambit of the common-law doctrine of search incidental to arrest. Further, the Ontario Court of Appealrefused to carve out a cell phone exception to the common-law doctrine of search incidental to arrest. Like the case here, the cell phonein Fearon was not password protected. As I have already mentioned, the Supreme Court of Canada is now going to address this veryvexing issue. [23] The B.C. Supreme Court case of R. v. Vye, [2014] BCSC 93, precedes Mann but provides a useful analysis of cell phonesearches.

However, that case again focuses on a software-aided forensic examination of a cell phone which occurred months after aninitial cursory search. It was held that the warrantless forensic search of the cell phone violated the accused's right under s. 8 of theCharter. [24] I should also point out that the Supreme Court of Canada case of R. v. Vu, [2013] SCC 60, does not specifically address our sortof case where there is a reported search of a cell phone incidental to arrest. (See paragraph 63 of Vu.) [25] I have concluded that Cst.

Nugent's fairly cursory search of the cell phone in this case is a search falling within the ambit ofsearch incidental to arrest. Cst. Nugent reasonably believed an examination of the cell phone would deal with relevant evidence aboutdrug dealing. Cst. Nugent would have required a search warrant for any sort of forensic analysis of the cell phone, but such analysis didnot occur here. I find there is no breach of Mr. Childerhose's s. 8 Charter rights.

SECTION 24(2) OF THE CHARTER: [26] If I am in error about the cell phone search being a cursory search, or if I am otherwise in error in finding no s. 8 breach, I mustconsider the application of s. 24(2) of the Charter. In effect, I must ask myself this question: If the cell phone search here did breach theaccused's s. 8 Charter rights, does the admission of the cell phone evidence bring the administration of justice into disrepute? [27] The governing principles for a s. 24(2) analysis are found in R. v. Grant, [2009] SCC 32.

I must look at the seriousness of theCharter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and society's interest in theadjudication of the case on its merits. [28] With respect to the seriousness of the Charter-infringing state conduct, I do not see a serious breach here. The police failed toobtain a search warrant to search the cell phone. The law is in a state of flux, and in fact the Supreme Court of Canada will be asked tomore clearly define the law in this area.

Cases such as Giles clearly allowed searches of the full content of cell phones as searchesincidental to arrest. [29] The case at bar took place before Vye and Mann were decided. Those two cases no longer permit police officers to conductwarrantless searches of the entire contents of a cell phone, but they offered no definitive statements about cursory searches of cellphones. [30] As to the impact of the breach on Mr. Childerhose, I note that the information retrieved was not highly private material.

Iappreciate that his privacy interest in his cell phone is high, but the text messages here largely relate to drug transactions and non-intimatedetails of Mr. Childerhose's personal life. I also note that the evidence was discoverable had the police obtained a search warrant. [31] The final factor, society's interest in adjudication of the case on its merits. While I concede that the offence in this case is not asserious as the kidnapping offence in Mann, drug-dealing is nevertheless a serious matter impacting often vulnerable people.

Theevidence from the cell phone is also reliable and relevant. [32] Weighing all the factors, I am of the view that the admission of cell phone evidence would not bring the administration ofjustice into disrepute. In short, I would not exclude the cell phone evidence, even if there were a s. 8 breach. CONCLUSION: [33] Cst. Nugent's search of the cell phone was not in violation of s. 8 of the Charter because it was a reasonable search incidental tothe arrest of Mr. Childerhose. It was a search cursory in nature.

Even if I am in error in my findings, I would nevertheless not excludethe cell phone evidence under s. 24(2) of the Charter.

G. BROWN Provincial Court Judge