2012 QCCA 1093, 2012 QCCA 1093

Express Transaction Services Inc. c. Canada (Attorney General) 2012 QCCA 1093 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-004172-084 (500-36-004533-074; 500-36-004534-072; 500-36-004535-079; 500-36-004536-077; 500-36-004537-075; 500-26-046420-075; 500-26-046416-073; 500-26-046419-077; 500-26-046418-079; 500-26-046417-071; 500-26-046425-074; 500-26-046424-077; 500-26-046422-071; 500-26-046421-073; 500-26-046423-079; 500-26-046414-078; 500-26-046413-070; 500-26-046415-075; 500-26-046412-075) DATE: JUNE 13, 2012 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. LOUIS ROCHETTE, J.A.

PIERRE J. DALPHOND, J.A. EXPRESS TRANSACTION SERVICES INC. ERIC CHENAIL INTERNATIONAL BUSINESS LOGISTIC INC. ELECTRONIC TRANSACTION SUPPLIES INC. EXTROM S.A. PAPER ROLL LOGISTICS LTD. AMALIA DI FALCO COMEXCO MEGABYTE INFORMATION INC. GEORGES HALIGUA COHEN APPELLANTS - Applicants v.

THE ATTORNEY GENERAL OF CANADA RESPONDENT – Mis en cause and SUZANNE BOUSQUET MIS EN CAUSE - Respondent and LE GREFFIER DE LA PAIX ET DE LA COURONNE MIS EN CAUSE – Mis en cause JUDGMENT [ 1 ] On appeal from a Judgment of the Superior Court, District of Montreal, rendered on June 6, 2008 (the Honourable Madam Justice France Charbonneau), which dismissed the Appellants’ Amended Application for an Order of Certiorari with Application under s. 24(1) of the Charter ; [ 2 ] For the reasons of Dalphond, J.A. with which Chamberland and Rochette, JJ.A. agree; [ 3 ] THE COURT : [ 4 ] DISMISSES the appeal;

JACQUES CHAMBERLAND, J.A. LOUIS ROCHETTE, J.A. PIERRE J. DALPHOND, J.A. Mtre Isabel J. Schurman Mtre Michèle Meleras Schurman Longo Grenier For the Appellants Mtre Jim Marshall Mtre Belinda Peres Public Prosecution Service of Canada For the Respondent Date of hearing: February 7, 2012 REASONS OF DALPHOND, J.A. [ 5 ] The appellants contend that it was illegal for the RCMP to seize without a warrant three large plastic garbage bags found in bins located outside the commercial building from which they were operating.

In their view, these garbage bags could not be considered abandoned, and their information content was subject to privacy interests of such a magnitude that a search warrant was required. Accordingly, information related to this search could not be part of the material used to subsequently obtain search warrants.

It is acknowledged by the respondent that excision of this information would leave insufficient grounds on which to justify the issuance of these warrants [ 6 ] For the reasons that follow, I agree with the judge of the Superior Court who concluded that the appellants had not shown a reasonable expectation of privacy with regard to the content of the garbage bags.

BACKGROUND [ 7 ] The RCMP in conjunction with the Competition Bureau, the Sûreté du Québec, the Department of Homeland Security, the Federal Bureau of Investigation and several other agencies decided to investigate the operations of the appellants in connection with various telemarketing schemes considered to be fraudulent.

This investigation was part of Project COLT (Centre of Operations Linked to Telemarketing Fraud). [ 8 ] In this case, the appellants were under investigation for potential contraventions of s. 380 the Criminal Code [1] and ss. 52 and 52.1 of the Competition Act [2] in relation to a number of alleged “schemes” to defraud small and medium-sized businesses.

The sources of information relied upon in the investigation included national and international police databases, commercial regulators, independent consumer groups and two informants. [ 9 ] The address of 615 Belmont in Montreal was first brought to the attention of investigators by an informant who had worked in a call centre there. The building, located at the corner of two public streets, Belmont and Union, is six storeys high and belongs to a corporation, E.F.G.H. Holdings, that is not a party to these proceedings.

In the back of the building, there is a small unfenced covered parking area which is easily accessible from Union Street (no gate, barrier or guard). Four unlocked bins clearly identified as garbage were located near the entrance to the parking area, 23 feet from Union Street, and 16 feet from a rear entrance of the building, close to the sidewalk.

They were visible from the street and from a back alleyway separated from the parking area by a low-height concrete wall that does not prevent passers-by from seeing whatever is there. [ 10 ] The appellant corporations were tenants operating from separate areas in the building. The landlord provided for cleaning services through a subcontractor that sent employees in the evening after the normal business hours of the corporate appellants. Garbage collected on the premises was commingled and stored in the four outside bins described above.

At the end of each business day, another contractor would empty the bins in to a garbage truck. [ 11 ] On Saturday June 16, 2007, early in the morning, three RCMP officers, including Cst. Wayne Dunn, collected three bags of garbage from two of the bins. They contained about 400 documents relating to the operations of the appellants, including employee time sheets, fax cover sheets, invoices and banking documents. [ 12 ] On October 4, 2007, a justice of the peace issued 10 search warrants under s. 487 of the Criminal Code , including one for the 615 Belmont building.

The warrants were issued pursuant to an affidavit sworn by Cst. Dunn in which he referred to a number of sources, including information obtained from the seizure of the garbage bags.

[13] On October 9, 2007, the search warrants were executed. Over 100 RCMP officers and Competition Bureau agents enclosed aperimeter around the 615 Belmont building to search the premises. Numerous documents, computers and other things were seized. At thesame time, the police placed approximately 130 individuals under arrest, mainly employees of the corporate appellants. They were allreleased the same day without charge. The appellants Georges Haligua Cohen, Amalia Di Falco and Éric Chenail were also arrested thatsame day, interrogated and released.

They appear to be directing minds of the corporate appellants. [14] In 2008, before any charge was laid against the appellants,[3] they petitioned the Superior Court for an Order of Certiorariwith application under s. 24(1) of the Charter.[4] They contended that the seizure without a warrant of the three garbage bags amountedto a violation of s. 8 of the Charter.

Accordingly, they sought to quash the search warrants, to annul the searches and seizures carried outthereunder, to order the return of all things seized with or without a warrant, and any copies thereof, and to prohibit the use of such thingsand copies thereof in any criminal or penal proceedings. In a subsidiary argument, they submitted that the documents were in factobtained from an insider informant and that the information provided in the affiant's declaration was not only incomplete regarding thebusiness of the appellants but was designed to hide the truth.

Finally they alleged that the October 9, 2007 search had been conducted inan unlawful and abusive manner and should therefore by quashed under s. 24(1) of the Charter. [15] The application was heard by Madam Justice Charbonneau between April 21 and April 24, 2008. She dismissed it in ajudgment dated June 6, 2008. JUDGMENT UNDER APPEAL [16] Charbonneau J. provided three reasons for dismissing the claims based on the conduct of the search. First, she pointed out thatan arrest under s. 495 of the Criminal Code is distinct from a search under s. 487.

The police did not need the authorization of the judgehearing the warrant application in order to place persons under arrest under s. 495. Second, she noted that the scope of a reviewing courton certiorari is mostly limited to jurisdictional questions, or instances in which a breach of the principles of natural justice has takenplace.

Finally, she found that the question would be better dealt with by the trial judge if charges were ever laid, since he or she wouldhave the benefit of the evidence and all the circumstances of the case before deciding whether there was a Charter violation and, if so,what remedy should be ordered. There is no appeal with regard to this issue. [17] The judge of first instance then turned to the questions relating to the legality of the issuance of the search warrants. Afterhaving allowed a cross-examination of Cst.

Dunn limited to the circumstances surrounding the warrantless search and seizure of thegarbage bags in order to permit the appellants to elicit testimony tending to discredit the existence of one of the preconditions for thewarrant authorization, she concluded that the affiant was credible and that the thesis of the appellants about an informant being thesource of the documents was without basis.

So the issuing judge was not misled or otherwise induced into error. [18] Charbonneau J. finally addressed claims that the search and seizure of the garbage bags constituted a violation of s. 8 of theCharter and that the information obtained should be excised from the evidence relied on by the judge who authorized the searchwarrants. In assessing the evidence, she first addressed the question of whether the appellants had a reasonable expectation of privacy inthe garbage bins, such that the search of June 16, 2007 violated their rights under s. 8 of the Charter.

In conducting her analysis on thispoint, she relied heavily on the Alberta Court of Appeal judgment in R. v. Patrick, 417 A.R. 276, 2007 ABCA 308, which has since beenupheld by the Supreme Court in R. v. Patrick, [2009] 1 S.C.R. 579, 2009 SCC 17. That judgment was in turn based on the SupremeCourt’s reasoning in R. v. Edwards, (SCC), [1996] 1 S.C.R. 128 and in R. v.

Tessling, [2004] 3 S.C.R. 432, 2004 SCC67. [19] The judge noted that there was no evidence that the appellants were on site when the garbage bins were normally collected.She also found that, even if the appellant companies had a policy of requiring that documents be shredded, there was no one to supervisethis work.

Since the documents were actually abandoned without being shredded, there was no reasonable expectation of privacy as totheir contents. [20] Other facts highlighted by the judge included: garbage was often left out all weekend; there was no fence sealing off theparking area; the bins were 23 feet from the street and easily accessible; and the word “déchets” was written on the bins.

The Courtrejected arguments based on the fact that the building had private garbage collection and that the building itself had an alarm system.Charbonneau J. found that there was no reasonable expectation of privacy relating to the contents of the garbage, and that no searchwarrant was necessary for the search and seizure of the garbage on June 16, 2007. ARGUMENTS [21] During the hearing, the appellants asked the Court to consider only the following two issues:

(1) Did the judge err in refusingto conclude that the warrantless search violated s. 8 of the Charter?;

(2) Did the judge err in rejecting evidence tending to show that theevidence relied upon to obtain subsequent search warrants was not in fact found in the garbage bags? [22] On the first issue, they claim that the garbage search of June 16, 2007 constituted a search in violation of s. 8 of the Charter.A warrantless search is presumed to be unreasonable. In this case, there was a subjective expectation of privacy and a continued interestin keeping the information private.

Referring to the decision of the Supreme Court in Patrick, the appellants argue that they cannot besaid to have abandoned their privacy interest. [23] On the second issue, they argue that Charbonneau J. erred in rejecting evidence that tended to discredit Cst. Dunn’s assertionthat the documents happened to be in the garbage bags. According to them, the evidence showed that daily rubbish was collected andthat the bins should have been emptied by the Saturday morning.

Moreover, unshredded documents were never put out for collection.The appellants contend that the judge should not have rejected the thesis that the documents in fact came from a disgruntled former

employee. ANALYSIS I. The extent of the right of appeal [24] The respondent asserts that the appellants' motion was two-fold: a certiorari application in connection with the issuance of thesearch warrants by the justice of the peace and a Charter remedy in connection with the warrantless search of the garbage bags. Whilethere is a right of appeal under s. 784(1) of the Criminal Code relating to the application for certiorari, there is no such right of appealunder the Criminal Code relating to the denial of a Charter remedy and thus this Court lacks jurisdiction (Mills v.

The Queen, (SCC), [1986] 1 S.C.R. 863 at 899-901; R. v. Meltzer, (SCC), [1989] 1 S.C.R. 1764). [25] The appellants respond that they did not request an exclusion of evidence under s. 24 of the Charter. They rather argue that byrelying on unconstitutional pre-warrant activities in issuing the warrants, the justice of the peace committed a jurisdictional error. [26] It is well established that a certiorari application challenging the validity of the issuance of a search warrant is a rather limitedexercise.

It can be used only to question the jurisdiction of inferior provincial judges or decisions by them that constitute jurisdictionalerror. In R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53, the Supreme Court held unanimously: 19 The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensivereview, today certiorari "runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term'jurisdiction' being given its narrow or technical sense": Skogman v.

The Queen, (SCC), [1984] 2 S.C.R. 93, at p. 99.Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunalcommitted an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certioraripermits review "only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach ofthe principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction": Skogman, supra, at p. 100 (citingForsythe v.

The Queen, (SCC), [1980] 2 S.C.R. 268). [27] In the instant case, it is clear that the justice of the peace did not commit a jurisdictional error by delivering the searchwarrants, considering the information to obtain that formed part of the application.

There was enough to satisfy the issuing judge thatthere were reasonable and probable grounds to believe that an offence had been or was being committed, and that the authorizationsought would afford evidence of that offence (s. 487(1) Cr.C.). [28] As for the subfacial validity of the affidavit or the legality of the information relied upon, it could not be subsequentlychallenged before the issuing judge who has no jurisdiction to hear a contradictory debate of that nature.

Since no charge was laid untilmore than four years after the execution of the warrants, it could not be raised before a trial judge seized with the charges. [29] Only the Superior Court could hear such issues if the appellants wanted to secure the return of the documents and/or theirexclusion from any subsequent proceedings. [30] Assuming that issuing a warrant on a false or illegal information is tantamount to the issuance without evidence and could bethe subject of a certiorari, which I doubt, then an appeal is possible before us.

Otherwise, the proceedings before the Superior Court onthese two issues (falsity or legality) should be considered as an application for a Charter remedy, and there is no right of appeal beforethis court of such a judgment. Should I be in error on that point, I will discuss the two issues raised by the appellants. II. The affidavit in support of the search was not misleading [31] The appellants challenged the subfacial validity of the affidavit of Cst. Dunn and were authorized to cross-examine him sincethe judge of first instance was of the opinion that the prerequisite conditions set out in R. v.

Garofoli, (SCC), [1990] 2S.C.R. 1421 were met. The remedy sought was the setting aside of the authorization, as in a "Wilson application". [32] According to the appellants, the judge erred in her consideration of evidence that tended to undermine the claim in theaffidavit sworn by Cst. Dunn that the documents relied upon were found in the garbage search. As mentioned previously, the appellantsassert that there was evidence that the garbage would have already been picked up by the weekend, and that unshredded paper was neverleft out for collection.

They further assert that the documents allegedly found in the garbage bags constitute an improbable “goldmine” ofinformation and that it was more likely that they came from an informant. [33] Clearly the conclusion challenged here is essentially factual. It can be disturbed if and only if the appellants show a palpableand overriding error in the first judge's assessment of the evidence (Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33).

Such isnot the case. [34] The evidence as to whether all the garbage would have been collected by the weekend was at best inconclusive, given thatthe garbage trucks normally came at 19:00 and garbage collected by the cleaning staff was often put out after that. The evidence alsoestablished that not all documents ending up in the bins were shredded beforehand. Furthermore, the first judge's conclusion that thedocuments were not so valuable as to raise suspicions that they did not in fact come from the garbage, given that only a fraction of the400 documents in the garbage were of any value, is reasonable.

Finally, the first judge, who had the benefit of Cst. Dunn’s testimony andcross-examination, found him to be credible and expressed the view that he did not perjure himself. [35] In reality, there is no serious factual basis for the appellants’ thesis that the source of the documents was an informant, otherthan the mere coincidence that someone from the department from which some of the documents originated was dismissed shortly after

June 16, 2007. [ 36 ] In these circumstances, there is no persuasive basis for holding that the justice of the peace was seriously misled by the false content of the most critical parts of Cst. Dunn's affidavit. III.

The search and seizure of garbage did not violate s. 8 of the Charter [ 37 ] As for the illegality of the information relied upon by the justice of the peace, the Superior Court had to determine if the warrantless seizure of the garbage bags violated s. 8 of the Charter and, if so, to order the proper remedies, including the return of the documents seized and a prohibition against the use of their content. [ 38 ] According to the teachings of the Supreme Court in Patrick , supra , in order to determine if there was a violation of s. 8 of the Charter , the judge of first instance should consider the “totality of the circumstances" and answer the following questions: Did each of the appellants have a reasonable expectation of privacy?

If there was a reasonable expectation of privacy in this case, was it violated by the police conduct? [ 39 ] In order to answer the first question, the judge of first instance could rely, as she did, on the following Tessling factors:

(1) What was the nature or subject matter of the evidence gathered by the police?

(2) Did the appellants have a direct interest in the contents?

(3) Did the appellants have a subjective expectation of privacy in the informational content of the garbage?

(4) If so, was the expectation objectively reasonable?

In this respect, regard must be had to: - the place where the alleged "search" occurred; in particular, did the police trespass on the appellants' property and, if so, what is the impact of such a finding on the privacy analysis? - whether the informational content of the subject matter was in public view; - whether the informational content of the subject matter had been abandoned; - whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality? - whether the police technique was intrusive in relation to the privacy interest; - whether the use of this evidence gathering technique was itself objectively unreasonable; - whether the informational content exposed any intimate details of the appellants' lifestyle, or information of a biographic nature. [5] [ 40 ] Though the bags seized contained leftover food, used coffee mugs, cans and other trash items that could be characterized as garbage, this is not determinative.

Here these items were not the target of the search. In reality, the RCMP officers were looking for documents and the subject matter of the warrantless search should be classified as the information contained in the seized bags. [6] [ 41 ] In the instant case, each of the corporate appellants had a direct interest in the informational content of the document produced in its offices.

With regard to the individual appellants no similar interest was demonstrated. [ 42 ] While the warrantless search did not relate to a private home but to commercial premises, there was sufficient evidence of a subjective expectation of privacy relating to documents generated by each of the corporate appellants or under their control, including procedures put in place to ensure that discarded documents were shredded before leaving a tenant's premises.

However, there was no indication that the tenants had requested the landlord to take specific measures with regard to the documents discarded once they had left their offices. [ 43 ] The next factor to consider is whether the expectation of privacy was objectively reasonable, based on the indicia set out above. [ 44 ] The first factor is the place where the search occurred. The privacy expectation is not territorially defined. However, the place where the warrantless seizure of the garbage bags occurred bears some relevance in the analysis.

In the instant case, the garbage bins were 23 feet from the street on a property belonging not to the appellants but to a third party, the corporate landlord, reserved for use by some tenants but easily accessible to the garbage collector, employees of other companies operating in the building or any passer-by collecting recyclable items (no fence, no guard, no barrier). The police trespass on the private property of the commercial landlord lasted a few seconds.

In these circumstances, the physical intrusion by the police was relatively peripheral. [ 45 ] The second factor to consider is whether the informational content of the subject matter was in public view.

Though the informational content of the bags was not in public view, the bins were. [ 46 ] If the information could properly be said to have been in the hands of a third party such as the landlord or the garbage collection company, that third party was under no obligation of confidentiality towards the appellants. [ 47 ] It should be added that the documents seized did not expose lifestyle and biographical information about the individual appellants but rather contained information about the commercial practices of the corporate appellants.

Information of such a nature calls for lower expectations of privacy protection under s. 8 of the Charter .

[ 48 ] I will now deal with the most important of the indicia, abandonment.

In Patrick , at paras. 62 and 63, the Supreme Court considered this in the context of a residence, and stated that “until the garbage is placed at or within reach of the lot line, the householder retains an element of control over its disposition and cannot be said to have unequivocally abandoned it.” Here we have a commercial building with multiple tenants and the relevant moment would not appear to be when the garbage is placed at the lot line, but rather when it is pooled together in the building’s large communal outside bins for pick-up.

Once collected by the cleaning staff and commingled with other garbage, there was a real and de facto definitive loss of control over the documents. Though it may remain possible for a tenant to retrieve a document from the common bins before they are emptied in a garbage collecting truck, it would most likely require a substantial effort to do so.

It is only fair to say that the appellants had abandoned all their privacy interest in the discarded documents at the time when the RCMP conducted the search. [ 49 ] Given that the act of abandonment occurred the evening prior to the day the police gathered the garbage bags, there was no subsisting privacy interest at the time of a police intervention consisting of an often used investigative technique.

Thus, there was no violation of a right protected under s. 8 of the Charter . [ 50 ] In my view, considering the totality of the circumstances, each of the corporate appellants' initial privacy interest in the documents was abandoned when they were placed for collection as garbage in the common unlocked bins adjacent to a public street, to which any passing member of the public had ready access. The police had no greater access in this regard than the public, but their access was no less.

At that point, the appellants had done everything required to rid themselves of the documents, including whatever private information was embedded therein, and their conduct, I believe, was inconsistent with the continued assertion of a constitutionally protected privacy interest. I would therefore dismiss the appeal on that ground, assuming a right of appeal does exist. CONCLUSION [ 51 ] For these reasons, I propose to dismiss the appeal. PIERRE J. DALPHOND, J.A.