R. v. Morrison, 2014 ONCJ 774

COURT FILE No.: Brampton 2013/6310 Citation: R. v. Morrison , 2014 ONCJ 774 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — DOUGLAS MORRISON Applicant Before Justice George S. Gage Heard on December 2 & 4, 2014 Reasons for Charter Ruling released on December 17, 2014 Scott Latimer ........................................................................................................... for the Crown Sal Caramanna ...................................................................................................... for the accused GAGE J.: Introduction [ 1 ] The applicant is charged with one count of luring a child by means of a computer contrary to

section 172.1(1) (

b) of the Criminal Code of Canada . [ 2 ] The elements of the offence are: (1) making use of a computer system to communicate; (2) communicating with a person who is, or who the accused believes is, under the age of 16; and (3) communicating for the purpose of facilitating one or more of the enumerated offences – in this case, invitation to sexual touching, contrary to

section 152 of the Code. [ 3 ] The investigation of the offence was commenced by way of a police officer responding to a personal ad posted to an internet site called Craigslist. She received a reply that caused her to continue the investigation by continuing the on-line conversation. [ 4 ] Coincidental with the online dialogue the officer made inquiries of Craigslist requesting particulars of the posting of the personal ad.

The particulars provided by Craigslist included a phone number. [ 5 ] By way of a request to the Intelligence branch of the Peel Regional Police the investigating officer was able to secure subscriber information relating to the telephone number provided by Craigslist . The officer was thus able to attach a name and address to the personal ad to which she had responded. [ 6 ] The person thus identified was the accused. It is submitted on his behalf that his cell phone subscriber information was secured by way of a warrantless and unlawful search and seizure and that search and seizure constituted a breach of his

section 8 rights under the Canadian Charter of Rights and Freedoms (hereinafter the “Charter”). Relevant Facts [ 7 ] For purposes of the application the following are the salient facts: • On January 10, 2013 the applicant used his computer to place a personal ad on Craigslist . The ad was subsequently posted to the website.

The ad invited communication by way of reply; • On February 5, 2014 Peel Regional Police Officer Hilary Hutchinson, posing as a fourteen year old girl named Mia, responded to the applicant’s post; • In the initial email interactions on February 5 and 6 Hutchinson asserted that she was fourteen years old, the topic of sex was introduced into the dialogue by the person who had posted the ad, in response Hutchinson asserted, as Mia, that she had not “done” sex yet, and thereafter the topic of sexual activity was extensively explored;

• As of February 6, 2013 Hutchinson formed a belief based on the internet dialogue that an offence under

section 172.1 had been committed; • On or about February 6, 2013 Hutchinson directed an inquiry to Craigslist requesting production of business records relating to the posting of the personal ad to which she had responded; • On February 11, 2013 a representative of Craigslist responded to Hutchinson’s inquiry. The information disclosed by Craigslist included the email address through which the ad was posted, the IP address of the computer used to post the ad and the phone number provided by the person posting the ad.

According to Hutchinson and the Craigslist posting data guide the provision of a phone number is not mandatory; • On February 12, 2013 at 8:41 am Hutchinson submitted a request to the Intelligence branch of Peel Regional police for disclosure of the subscriber information relating to the phone number provided by Craigslist; • At 10:28 am the same day Hutchinson was advised by the Intelligence branch that Douglas Morrison of 14 Thorncliffe Drive in Bellville Ontario was the subscriber associated with the telephone number; • In the following days Hutchinson conducted searches through telephone listings and motor vehicle registration to confirm that Douglas Morrison resided at 14 Thorncliffe Drive; • In the course of an email exchange on April 12, 2013, between Morrison and Mia, Morrison requested the cell phone number of Mia.

A phone number was provided and later that day Morrison attempted to call Mia’s cell phone on three occasions. On each occasion the caller number display showed a number that matched the phone number provided to Craigslist; • The title of the personal ad placed by the applicant on Craigslist had the heading “Daddy looking for little girl”.

The investigating officer admitted in cross examination that on the internet “Daddy looking for little girl” or variations on the same theme was a common form of adult role play fantasy chat; • In the information to obtain a search warrant on May 23, 2013 the investigating officer did not include reference to “Daddy Little girl” role play.

She testified that she did not do so because she saw nothing in the wording of the personal ad that referenced role playing, she saw nothing limiting the responders to legal age and she saw no indication of role playing or fantasy in the content of the internet dialogue. [ 8 ] The defence called no evidence on the application.

The Postion of the Parties Applicant [ 9 ] The Applicant maintains that the procedure through which the investigating officer was able to secure the subscriber information relating to the telephone number provided to Craigslist constituted an illegal search and seizure and therefore a breach of the Applicant’s rights under

section 8 of the Charter . [ 10 ] By way of remedy the Applicant asserts that all evidence obtained as a result of the unlawful search (effectively all the evidence implicating the Applicant as the author of the email communication with Mia) should be excluded. [ 11 ] The events and procedures in issue predate the ruling of the Supreme Court of Canada in R v Spencer [1] . [ 12 ] In Spencer the Court ruled that the State was not entitled to secure subscriber information relating to a specified IP (internet protocol) address from an internet service provider except through a judicially authorized order. [ 13 ] It is the position of the Applicant that cell phone subscriber information is so closely analogous to internet subscriber information that the reasoning in Spencer should apply to the retrieval of cell phone subscriber information.

In this regard the Applicant submits that the ruling of Justice Code in Khan [2] is wrongly decided and should not be followed. Crown [ 14 ] The Crown submits that the two types of information are not comparable for the reasons addressed by Justice Code in Khan. [ 15 ] In the event that the law now requires that a warrant be obtained to secure disclosure of cell phone subscriber information, a proper Grant [3] analysis yields the result that the evidence should not be excluded. Again, in this regard, the reasoning of Justice Code in Khan [4] is applicable.

Discussion [ 16 ] The central issue in the analysis is whether it is established that the Applicant had a reasonable expectation of privacy in relation to his identification as the subscriber to the cell phone service for 613-848-9828. [ 17 ] The Supreme Court in Spencer directs that the analysis of the issue of reasonable expectation of privacy will be concerned with four factors:

(1) the subject matter of the alleged search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances. However, this is not a purely factual inquiry. The reasonable expectation of privacy standard is normative rather than simply descriptive.

Thus, while the analysis is sensitive to the factual context, it is inevitably “laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy. [5] [ 18 ] On the surface the subject matter of the alleged search is the name and address associated with a cell phone supplied to an internet website in relation to a personal advertisement.

A proper analysis however must also consider what it is that may be below the surface. [ 19 ] Relative to disclosing the connection between an individual and a specified IP address the Court in Spencer was of the view that the disclosure had the potential of revealing “the individual’s online activity in the home” [6] .

The judgement is not clear on this but what I take from the analysis is that identifying, and therefore connecting, a person with an IP address has the potential to open the door to unfettered surreptitious monitoring of all of the internet activity of that person as well as the members of his or her household making use of the device having the signature IP address. [ 20 ] The disclosure of the name and address of a cell phone user does not have the same potential.

Absent a judicially authorized wiretap the police are not enabled, by virtue of the disclosure of the identity of the cell phone user to intercept or monitor telephone or text messages sent or received on that device. In order to monitor internet usage through the phone they would need the IP address for that phone. [ 21 ] A feature of privacy that was central to the reasoning in Spencer is the concept of “anonymity as privacy”. In the normal course of internet browsing the IP address is not on display. It is a common feature of internet browsing that it is nameless, faceless and voiceless.

Users of email can adopt pseudonyms or ficticious handles (as Hutchinson did here) to mask their identity. [ 22 ] The anonymity analogy between an IP address and cell phone user information breaks down on several fronts and cannot be sustained. [ 23 ] While we no longer live in a world where everyone’s phone number is published annually by the phone company in a large book delivered to every doorstep, there are internet sites that offer a reverse number lookup to name searches either for free – Canada 411 – or for a fee – peoplebyname.com.

Here I have no evidence that the subscriber information obtained by the police could not be acquired by any interested member of the public through one or both of these sites. No similar publicly available web services are available in respect of subscriber information relative to IP addresses. This suggests to me that the concept of anonymity is not implicated in cell phone information to anywhere near the same degree that it exists in the realm of IP address identification. [ 24 ] In days gone by one could pay a fee to have one’s number unlisted. This would be some indicia of a desire for anonymity.

The current equivalent in the sphere of cell phones is the call display blocking feature. There is no evidence that Mr. Morrison took any steps toward securing a measure of anonymity by that method. The evidence shows that his number was displayed when he called the number supplied by Mia. This contrasts with the hidden character of the IP address. [ 25 ] On the evidence I am not persuaded that Mr. Morrison had a subjective expectation of privacy in the disclosure of subscriber information relating to his cell phone.

Even if I had found that he had a subjective expectation of privacy I would not have found it to be objectively reasonable in the totality of the circumstances. [ 26 ] I therefore find that there has been no breach of

section 8 rights. [ 27 ] In the event that I had found a reasonable expectation of privacy and a breach of

section 8 I would not have excluded the evidence secured as a result of the breach for the following reasons:

a) The information sought was limited to the name and address of the user of the telephone number, the procedure adopted was consonant with the governing jurisprudence, there is no indication that the police employed subterfuge in securing the disclosure from the service provider, and the fact that the information was secured within an hour and a half of Hutchinson making the request suggest that process was not difficult. The information sought related to a phone number that the applicant had provided to a third party.

In all the circumstances I am satisfied that the police were acting by what they reasonably believed were lawful means. In the absence of any clear indication that fantasy or role playing was a factor in the internet dialogue with the applicant I am not persuaded that the failure on the part of the investigating officer to allude to the phenomenon of role play on the internet was a material omission or that it affects the first branch of the Grant [7] analysis.

b) The release of information identifying the Applicant as the user of the cell phone number does not open the door to an unrestricted monitoring of his phone; it does not enable a review of his cell phone activity or his contacts or the content of his cell phone. The impact on Charter protected interests is limited;

c) The information obtained by the police connecting the Applicant to the cell phone number was of limited value on its own. It was of considerable value when connected with other evidence independently obtained. The evidence that the Applicant seeks to exclude represents the bulk of the case for the Crown. The reliability of that evidence was not compromised by the breach. Society has a strong interest in the adjudication of this offence on its merits. [ 28 ] Since all three of the Grant factors favour admission it is not necessary to undertake a balancing exercise.

It is clear that the exclusion of the evidence would adversely affect the repute of the administration of justice. I note that the Supreme Court in Spencer and Justice Code in Khan reach the same conclusion on similar facts. [ 29 ] For the reasons set out above the application is dismissed.

Released: December 17, 2014 Signed: “Justice George S. Gage”