R. v. Akintunde, 2013 ONSC 2522

CITATION: R. v. Akintunde, 2013 ONSC 2522 COURT FILE NO.: 1469/11 DATE: 20130430 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) H. Akin, for the Crown ) ) ) - and - ) ) GEORGE AKINTUNDE and OLUFUNMILAYO AKINTUNDE ) ) ) ) ) H. Saini, for the defendant George Akintunde A. Edgar, for the defendant Olufunmilayo Akintunde ) ) ) ) HEARD: April 4 and 5, 2013 RULING ON S. 8 APPLICATION K. van Rensburg J.

Introduction [ 1 ] This is an application under s. 24(2) of the Canadian Charter of Rights and Freedoms (the “ Charter ”) to exclude evidence obtained in a search of an address on Ventura Lane, Ajax, Ontario (the “Premises”), on the grounds that the search violated the rights of the accused under s. 8 to be secure against unlawful search and seizure. [ 2 ] The two accused are charged with importation of heroin, conspiracy to import heroin, and possession of heroin for the purposes

of trafficking. Relevant Facts [ 3 ] The facts leading to the investigation and arrest of the accused are as follows. On April 26, 2011, authorities in the United Kingdom intercepted a package that contained 398 grams of heroin. The package was sent from Bangladesh and was addressed to Nancy Kellman at an address on Rotary Drive in Toronto.

A controlled delivery was conducted on May 9, 2011, pursuant to a general warrant issued May 4, 2011 by Justice Katherine McLeod, which authorized the RCMP to deliver the package, follow it to its ultimate destination and search whatever place it entered along the way. [ 4 ] Upon delivery, the package was accepted by Kelvin Mekwunye and was taken into the residence on Rotary Drive. Mr. Mekwunye left that residence with the package, accompanied by a woman and child. He drove to a strip mall where he met with George Akintunde, who had driven there in a silver Nissan. The men spoke and shook hands, and Mr.

Mekwunye placed the package into the back seat of the Nissan. The police arrested the three adults. Eventually Mr. Mekwunye and the woman who was with him were released. [ 5 ] The police spoke with Mr. Akintunde and learned that he lived at the Ventura Lane address. Since the police arrested Mr. Akintunde before the package had entered his house, the general warrant did not authorize them to search his residence. Accordingly, the RCMP sought and obtained on May 9, 2011 a CDSA telewarrant for that purpose. The telewarrant was issued by Justice of the Peace Fredericksen, and the Premises were searched that evening.

Mr. Akintunde’s spouse, Olufunmilayo Akintunde, was at the house when the search occurred. [ 6 ] The telewarrant was obtained on an information to obtain (“ITO”) sworn by RCMP Constable Ryan Hulan.

The telewarrant authorized “any peace officer between 21:15 and 23:59 to enter [the Premises] and thereafter to search for and seize [the property]”. [ 7 ] The ITO listed in Appendix A the items to be searched for at the Premises, which included the following: documents and equipment devices (such as receipts, phone numbers, invoices, waybills, pieces of paper with tracking numbers written on them, cellular phones and computers, that relate to the postal package with Airway Bill Number EE106863205BD imported into Canada. any offence related property, paraphernalia, and other items that may relate to the postal package imported and/or its contents… [ 8 ] During the search the officers seized, among other things, 281.5 grams of heroin and several cell phones, as well as false identification for both accused.

The Application [ 9 ] The applicants seek to exclude anything that was obtained as a result of the search that the Crown may attempt to tender in evidence. Of particular concern are the heroin and several text messages retrieved from one of the cell phones. The peculiar feature of this case is that the cell phone messages were not retrieved from the phone until October 17, 2012, some 17 months after its seizure during the search of the Premises, and on the eve of when a trial in respect of charges against George Akintunde was to proceed.

As a result of the disclosure of the messages, a mistrial was declared, and the charges, which had been stayed against the co-accused, were recommenced. [ 10 ] The applicants contend that there were errors and omissions in the ITO that call into question the validity of the telewarrant and hence the legality of the search of the Premises. Even if the initial search was legal, they assert that the subsequent search of the cell phone was outside the scope of the warrant, and was illegal.

The fruits of the illegal search should be excluded under s. 24(2) of the Charter . [ 11 ] Crown counsel contends that no s. 8 violation can be established in this case. The telewarrant, which is presumptively valid, was properly and lawfully issued. The search of the cell phone which occurred in this case was contemplated by the original warrant. If there was any illegality in the search, the evidence should nevertheless be admitted on the analysis required by R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353. As a preliminary matter, the Crown objected to Mr. Akintunde’s standing to proceed with this application.

Evidence at the Voir Dire [ 12 ] Constable Hulan testified at the voir dire . He described the steps he had taken to obtain the telewarrant and what had occurred during the entry and search of the home. The officers located six cell phones, one of which was identified in the Premises as corresponding to the telephone number on the package involved in the controlled delivery. All of the other cell phones were sent to the RCMP Integrated Technological Crime Unit, (“ITCU”), in order to download their contents.

The subject cell phone, however, was logged by another officer as an MP3 player, because of its appearance, and was not sent to be examined. It was only later that it was confirmed that this was a cell phone. Constable Hulan then turned it on and searched for messages relevant to the importation. He testified that he went through the messages, contacts, call log and history of outbound and inbound calls and text messages, in order to identify the messages in question. The cell phone was not password protected.

[13] On October 24, 2012, the RCMP had obtained a production order to search a cell phone taken from Mr. Mekwunye. Theproduction order specifically authorizes a search of the data on that cell phone. Constable Hulan acknowledged that there had beensufficient time to obtain a search warrant with similar detail authorizing a search of the data in the Akintunde cell phone, however heproceeded on the understanding that the warrant they already had was sufficient to permit a search of the cell phone for evidencerelevant to the charges. In Mr.

Mekwunye’s case, his cell phone had been seized incident to his arrest and, it was believed to benecessary to obtain an authorization to search the phone. [14] The officer admitted that the delay in searching the Akintunde cell phone resulted from an error by the exhibit officer. It wasConstable Hulan’s understanding that the time period indicated in the telewarrant (21:15 to 23:59) related to their entry into the Premisesand did not require that anything seized during the search be examined within those hours.

Standing [15] Standing requires that the applicant have a reasonable expectation of privacy in the place searched at the time of the search. Theonus is on the applicant to establish standing on a balance of probabilities, and this is determined based on an assessment of the totalityof the circumstances: R. v. Edwards, (SCC), [1996] 1 S.C.R. 128 (S.C.C.). [16] Crown counsel objected to Mr.

Akintunde’s standing to bring this application on the grounds that he was equivocal in his policeinterview as to whether he in fact lived at the Premises. [17] I am satisfied on the evidence that was before the court on this application, that Mr. Akintunde has standing to argue a breach ofhis s. 8 rights with respect to the search of the Premises and the seizure of the various items, including the cell phone. [18] At the time of his arrest Mr. Akintunde identified the Ventura Lane address as his residence.

At the beginning of his policeinterview, he confirmed that he had lived there for three years, although later in the interview he claimed that he did not in fact live in thehouse all the time because he and his wife were having marital problems. [19] I do not accept the Crown’s assertion that the accused lacks standing, unless he confirms for all purposes that he lived at theVentura Lane address at the time of the search. Possession or control of the place searched is but one factor identified as relevant inEdwards. Historical use of the property or premises searched is also relevant.

In any event, the court is entitled to consider all of theevidence, including the accused’s admission at certain stages of the investigation that he lived there, and the fact that the warrant wasobtained on the assumption that this was indeed his residence. His equivocation is but one factor to be considered in determiningwhether the accused had a reasonable expectation of privacy in the premises searched. [20] Crown counsel went so far as to assert that the accused had to establish an expectation of privacy in the very room searched andthe items that were seized. This is not a correct statement of the law.

See the decision of Spies J. in R. v. Hankey, [2008] O.J. No. 4285,at paras. 18 to 20, rejecting the submission of Crown counsel in that case that the accused was required to establish an expectation ofprivacy in the very room in which the items were seized as opposed to the premises that were searched, and R. v.

Pugliese (1992), (ON CA), 71 C.C.C. (3d) 295 (C.A.), where Finlayson J.A. noted at p. 301: S. 8 is available to confer standing on an accused person who had a reasonable expectation of privacy in the premises where the seizuretook place, even though he had no proprietary or possessory interest in the premises or in the articles seized. [21] Accordingly, I am satisfied on a balance of probabilities that Mr. Akintunde had a reasonable expectation of privacy in thePremises that were searched.

As such, he is entitled to bring this application to challenge the legality of the search of the home and ofthe cell phone that was seized during the search. The Alleged

Section 8 Breaches [22] The two issues to be determined in respect of the alleged s. 8 violation are (1) whether there were reasonable grounds for theissuance of the telewarrant, as set out in the ITO, as amplified by the testimony of the officer, and after any irrelevant or offensiveinformation is excised, and (2) whether the search of the cell phone in October 2012 was authorized by the telewarrant. Issue No. 1: Reasonable Grounds to Issue the Warrant [23] In an application under s. 8, a judge reviewing a search warrant does not substitute his or her view for that of the authorizingjudge.

If, based on the record which was before the authorizing judge, as amplified on the review, the reviewing judge concludes thatthe authorizing judge could have granted the authorization, then the warrant is valid: R. v. Garofoli, (SCC), [1990] 2S.C.R. 1421, at paras. 54 and 55. [24] Quinn J. noted in R. v. Philpott, [2002] O.J. No. 4872 (S.C.J.) that the focus of the review is on how the material facts are

presented in the ITO. He stated at para. 48: Primarily, what a reviewing court is looking for are deficiencies in the “information to obtain” relating to the facts: the overstating offacts; the misstating of facts; or the failure to state material facts. Any one of these deficiencies may lead to a finding that the warrant isinvalid. [25] Since the ITO is presumed valid, the burden is on the accused to satisfy the reviewing judge that it does not comply with therequirements of the law.

The validity of the warrant must be considered in the context of any additional evidence provided at the hearingthat amplifies the grounds, and, to the extent that there was anything irrelevant or prejudicial in the ITO, after excising such information:R. v. Lajeunesse, (ON CA), [2006] O.J. No. 1445 (C.A.) at paras. 6 to 8. [26] I consider each concern raised by the applicants in turn. [27] First, in para. 23 of the ITO the officer refers to Mr. Akintunde being a prohibited driver.

It is asserted that this was irrelevantand prejudicial information and should be excised. [28] While the reference to the accused being a prohibited driver was unnecessary, and may have been somewhat prejudicial, theinclusion of this information was not relevant to the issuance of the warrant. This statement can be excised, however its removal wouldhave no impact on the reasonable grounds for issuance of the warrant which are found elsewhere in the ITO. [29] The second concern raised by the applicants is that only selected parts of what Mr.

Akintunde said to the police during hisinterview were referenced in the ITO. The officer noted that Mr. Akintunde admitted to asking Mr. Mekwunye to use his address toaccept the package, however he did not include the fact that during the interview, Mr.

Akintunde denied knowledge of what it contained.It was suggested that the information was incomplete, and that this exculpatory statement ought to have been included in the ITO. [30] If one were to include or “read into” the ITO the fact that the accused denied knowing what was in the package, this would haveno effect on the grounds that existed for the issuance of the warrant. What was important in providing a link between Mr. Akintunde andthe package was his admission that he had asked to use Mr. Mekwunye’s address to accept the package, whether or not he deniedknowing what it contained.

Inclusion of his denial would not have any impact on the presence or absence of reasonable grounds forissuing the ITO. [31] The third concern raised by the applicants is with respect to para. 27 of the ITO, which refers to two earlier occasions whenCanada Post packages originating from India were addressed to different people at the Ventura Lane address, were found to containheroin, and were intercepted by CBSA and processed by the RCMP.

The ITO stated that in each case “no enforcement action wastaken”. [32] The applicants contend that this is “oddly worded”, that it is unclear what occurred and why no enforcement action was taken,and that more information ought to have been provided with respect to the earlier packages. Further, there was nothing to suggest thatthe drugs from the earlier packages would still be at the house.

Counsel asserted that the reference to the earlier packages wasprejudicial and not probative and should be excised. [33] I agree with Crown counsel that the fact that two packages containing heroin addressed to the place where Mr. Akintundeinitially said he lived, and that was proposed to be searched, was highly relevant to a warrant to search for evidence in respect of thecrime that was being investigated by the police, involving the importation of heroin. It provided evidence of a nexus between the placeto be searched and the offence under investigation.

Constable Hulan was not questioned in the voir dire about the statement in the ITOthat no enforcement action was taken or about what occurred on the earlier occasions.

Without knowing what other information wasavailable, it would be speculative to suggest that some important fact was missing that ought to have been included, and that there was alack of full and fair disclosure. [34] With respect to the assertion that the ITO provided no grounds to believe that the drugs that were in the earlier packages wouldstill be at the house, the warrant was to search for evidence in connection with the offence under investigation; that is, the recentimportation of heroin and not the earlier attempts.

It was obvious the drugs in the earlier packages were not at the residence becausethey had been intercepted.

What was relevant was that such packages, which were found to contain heroin, had been destined to thesame address. [35] Finally, it was suggested that the references to the items to be searched for, based on the officer’s prior experience andconversations with other experienced drug officers, were bald and conclusory, and did not establish a nexus between the accused andeach item that was being searched, stating why such items were likely to be present in the house. [36] I find nothing in the officer’s statements about what one might expect to find in the Premises in relation to a drug importation tobe bald or conclusory.

The officer refers to his own experience and that of other experienced drug officers to describe the types ofdocuments and other items that might be found in the Premises and connected to the importation of heroin. It was not necessary tospecifically link each item listed in the warrant to the person under investigation, and it was not necessary for the officer to explain whyimportation of drugs by mail specifically might result in the items the police sought to search for and to seize. The warrant was tosearch for evidence of the offence. This is not a case like R. v. Rocha, 2012 ONCA 707 , [2012] O.J.

No. 4991 (C.A.), whichwas referred to by the applicants, where bald or conclusory statements from a confidential informant were ineffective to establish the linkor nexus between the place to be searched and the offence under investigation. [37] In conclusion on this point, I find that there was sufficient evidence in the ITO from which the issuing judge could reasonablyhave inferred that a search of the Premises would reveal evidence of criminal activity involving Mr. Akintunde contrary to theControlled Drugs and Substances Act, which is the test articulated by the Court of Appeal in R. v. Tohl, [2012] O.J.

No. 23 (C.A.).

The Text Messages [38] I turn now to consider the issue of the search of the cell phone that retrieved certain text messages. The applicants assert that,while the telewarrant authorized the seizure of the cell phone, a second warrant ought to have been obtained before its contents weresearched. [39] First, the applicants rely on R. v. Sonne, [2012] O.J. No. 1200 (S.C.J.) in support of their argument that the search of the cellphone was illegal because it occurred outside the time provided in the warrant, and was outside of the scope of the warrant.

In that case,which involved the seizure of computers, the Crown had conceded both of these points. The warrant in question authorized the searchfor certain types of electronic records on specified devices, including computers, but did not authorize the seizure of the computers andtheir removal from the premises. The warrant required the search to be conducted within a certain timeframe. [40] In the present case, the warrant was worded to require an entry into the Premises within a certain timeframe and “thereafter” tosearch.

The Crown contends that the only obligation was for the police to enter the Premises within the timeframe indicated in thetelewarrant, and that they could continue on the Premises for as long as the search might take, and could continue the “search” of itemsseized at any time outside the time specified in the warrant. [41] I agree with the position of the Crown on this point. In my view, the fact that the telewarrant authorized entry into the Premiseswithin a certain timeframe does not mean that everything that was seized had to be examined at that time.

The issue is rather whether thewarrant was sufficient to permit the search of the subject cell phone’s data. [42] Crown counsel contends that the warrant in this case was sufficient to authorize the subsequent search of the contents of the cellphone for evidence related to the offence.

The applicants argue that the telewarrant was insufficient to authorize the search of the cellphone and that in a case like the present, when a cell phone is seized under a search warrant, a further warrant is required before itscontents may be examined. [43] Recent cases dealing with searches of cell phones incident to arrest suggest that the law respecting the expectation of privacy inthe contents of a cell phone is evolving. [44] In R. v. Manley, 2011 ONCA 128 , [2011] O.J.

No. 642 (C.A.), the Court of Appeal noted that the common law powerof search incident to arrest justified the search of a cell phone to determine its ownership. Sharpe J.A. noted, at para. 39, that thetraditional rules of search incident to arrest had to be interpreted and applied in a manner that takes into account the facts of moderntechnology and that “cell phones…have the capacity to store vast amounts of highly sensitive personal, private and confidentialinformation.” [45] Most recently, in R. v. Fearon, 2013 ONCA 106 , [2013] O.J.

No. 704 (C.A.), the Court of Appeal refused to carve outa cell phone exception to the common law doctrine of search incident to arrest. The court upheld a finding that there was no breach of s.8 where the police, in an arrest for robbery, reasonably believed that an examination of the cell phone of the accused would yieldrelevant evidence and conducted a “cursory” examination of its contents for photos or text messages relevant to the offence. The cellphone in question was turned on and was not password protected.

The court noted that the subsequent examination of the contents of thecell phone at the police station arguably went beyond the limits for a search incident to arrest, and that at that stage the police ought tohave obtained a search warrant or a telewarrant (para. 58). [46] In Fearon, the court recognized “the highly personal and sensitive nature of the contents of a cell phone and the high expectationof privacy that they may attract” (at para. 72). The court contrasted the cell phone in that case to the cell phone that “functioned as amini-computer” in R. v. Little, (ON SC), [2009] O. J.

No. 3278 (S.C.J.), where the contents were “extracted by apolice officer with specialized skills using specialized equipment” (at para. 74), and where the court ultimately found that there was aviolation of s. 8 (but admitted the evidence). [47] See also R. v. Polius, [2009] O.J. No. 3074 (S.C.J.), (search of a cell phone with preparation of an inventory) and R. v. Finnikin,[2009] O.J. No. 6016 (S.C.J.) (search of a device described as a handheld computer), where in each case the search of the contents of thedevice was held to be beyond the scope of a proper search incident to arrest and therefore illegal.

These cases refer to the need to obtain awarrant, without specifying the type of warrant that would be required. [48] Each of these cases (except for R. v. Little) involved the search of a handheld device incident to arrest. In Little, the police hadobtained a valid search warrant that did not include a cell phone in the list of items to be seized. Fuerst J. concluded that the seizure of acell phone known as a “Treo” was justified under s. 489(1)(

c) of the Criminal Code (authorizing the seizure of things additional to thoseenumerated in the warrant where the police believe on reasonable grounds that those things afford evidence in respect of an offence). The issue was what the police were entitled to do with the Treo once it was in their possession.

Fuerst J. rejected the Crown’s positionthat, once the device had been lawfully seized, the police were entitled to examine it in any way they wished, including by searching itscontents, without further judicial authorization. [49] Fuerst J., at paras. 147 and 148, noted the particular features of the device (that “was not simply a cellular telephone”), as wellas the fact that in conducting their search, the police made no attempt to focus or minimize the scope of the search of the contents andinstead accessed, reproduced and reviewed all of the information stored in the device, without limit.

She noted that there was “noevidence that they were looking for anything in particular, as opposed to searching for any information that might be relevant to theinvestigation”. In finding that the search was illegal, but ultimately not excluding the evidence, Fuerst J. noted that defence counsel,even in 2009. could not point to any clear binding authority for the proposition that the police needed a warrant to search the contents ofthe device (at para. 151). [50] In R. v. Jones, 2011 ONCA 632 , [2011] O.J.

No. 4388 (C.A.), at issue was the legality of a search of computers duringwhich the police found child pornography. The police were investigating the accused for fraud. They obtained a warrant authorizing the

search of his residence and seizure of data relating to certain transactions and any electronic data processing and computer devices. A computer was seized and during the examination of its contents, the police discovered child pornography. [ 51 ] The court dismissed the argument that the warrant was too broad as it did not place any time or content limitations on the search of the computer. While there was a broad right to examine all computer contents in search of evidence of fraud under the warrant, a second warrant was required to conduct a search for child pornography.

As Blair J.A. noted at para. 42, “a computer search pursuant to a warrant must be related to the legitimate targets respecting which the police have established reasonable and probable grounds, as articulated in the warrant”. [ 52 ] The warrant in the Jones case specifically authorized the search and seizure of computers and the data contained in the computers related to the fraud allegations, but not in respect of other offences. [ 53 ] The Jones decision was cited with approval in R. v. Vu , [2010] B.C.J. No. 1777 (C.A.) , a case which comes closer to the issue at hand in the present application.

An appeal of this decision is pending before the Supreme Court of Canada: [2012] S.C.C.A. 94. (The appeal was heard and reserved on March 27, 2013). [ 54 ] In Vu, there was a warrant to investigate theft of electricity at a residence, that authorized the police to search not only for equipment used to divert electricity but also for documentation identifying ownership or occupancy of that residence. The trial judge had excluded images found on a computer and cell phone seized in the search.

She concluded that the search warrant for a residence could not implicitly authorize the search of a computer or cellular phone containing a memory capacity akin to a computer that may be found in the premises, even where the warrant specifically granted authority to search for documentary evidence of occupation or ownership. The B.C. Court of Appeal disagreed, and held that a warrant does not have to specifically authorize the search of a computer or other device.

Frankel J.A. stated at paras. 64 and 65: …I do not accept that the law governing search warrants needs special rules to deal with computers and similar devices. It is important to keep in mind that the principles of search and seizure already place limits on how a warrant can be executed. As mentioned above, those executing a warrant are entitled to search only those areas in which the things listed on the warrant might reasonably be expected to be found.

With respect to electronic devices, this means that a device must reasonably be expected to contain at least one of the things listed on the warrant before it can be examined at all. Further the scope of the examination of a device will be limited to searching for those things listed on the warrant… [Emphasis added.] [ 55 ] From this review of the cases it is apparent that there is an increased awareness in our courts of the expectation of privacy in the contents of a cell phone.

This reflects the rapid increase in the sophistication of cellular devices, such that many operate as “mini- computers”, with the capacity to store vast amounts of personal information. There may be very good reasons to recognize specific rules for searches of the data on cell phones. Fearon recognized that a search incident to arrest could include a “cursory” search of data on a cell phone, but did not define the outer limits of a permissible search.

Little recognized that, in a case where cell phones are not identified in the warrant, while their seizure may be justified under s. 489(1)(c), a specific warrant would be required before all the data could be accessed, reproduced and reviewed. According to the B.C.

Court of Appeal in Vu, the authorization in a warrant to search for documentation may include the search of a cell phone or computer provided that it is reasonably expected that the device will contain such documentation and the scope of the search is limited to searching for the things listed on the warrant. [ 56 ] In the present case, the cell phone in question was not locked or password protected. While the officer was not questioned in detail about his examination of the cell phone contents, there was no evidence that any personal information was viewed or stored on the cell phone.

The cell phone from which the text messages were obtained corresponded with the telephone number on the intercepted package containing heroin. As such, it was reasonable to expect that it contained evidence relating to the alleged importation. The search was focused. This was not a case like Little where all of the information stored in the device was accessed and recorded, without limit.

While I do not necessarily accept the position urged by Crown counsel that the authority to search for cell phones implied an ability to search the contents of all of the phones found at the Premises, in the circumstances of this case, I would interpret the warrant as authorizing the particular search that was conducted on the subject cell phone. [ 57 ] I do not comment on whether the searches of the other cell phones by the special unit which was tasked with downloading their contents would have fallen within the scope of the warrant in this case. [ 58 ] The fact that the examination of the cell phone did not take place until a year after their seizure does not in my view affect the validity of the search.

Once they had seized the cell phone in question under a lawful warrant, the RCMP were entitled to search it for evidence relevant to the offence under investigation. The issue is the scope of the existing authorization, not whether there was any urgency precluding an application for a further and more specific warrant. There was no change to the privacy interests of the defendants or any other relevant prejudice resulting from the delay. The fact that a further warrant could have been obtained does not of course mean that it was necessary.

S. 24(2) Analysis [ 59 ] If I had concluded that a s. 8 breach had occurred, this would not be an appropriate case for the exclusion of evidence under s. 24(2) of the Charter . [ 60 ] The test for exclusion of evidence under s. 24(2) was formulated by Supreme Court of Canada in R. v. Grant .

The court is to consider (1) the seriousness of the Charter breach, (2) the impact of that breach on the accused’s Charter -protected rights, and (3) the societal interest in having criminal matters adjudicated on their merits. [ 61 ] With respect to the first part of the analysis, the Crown admits that the expectation of privacy in the contents of a cell phone is very high. With respect to the search of the cell phone 17 months after its seizure, the officer admitted that there had been an error, and

explained the basis for his belief that the search of the phone was justified under the original warrant. If the search of the cell phone contents was ultimately beyond the scope of the warrant, it is relevant that this is an area of the law that has been evolving rapidly. As in Jones , the search was conducted pursuant to a search warrant by officers who reasonably believed that they were acting under lawful authority. The Court of Appeal noted in Rocha , the fact that a search warrant had been obtained from an independent judicial officer is the antithesis of a wilful disregard of Charter rights.

There is no evidence of wilful, intentional or reckless disregard of the rights of the accused, and no need for the court to dissociate itself from improper state conduct by excluding evidence. [ 62 ] With respect to the second part of the analysis, while the cell phone search was intrusive, the cell phone had already been seized lawfully under the search warrant.

The search of its contents for evidence relating to the shipment of the package did not impact on the applicants’ dignity or liberty. [ 63 ] With respect to the third part of the Grant test, society’s interest in having serious criminal charges adjudicated on their merits is high. The evidence of the heroin and the cell phone messages is important to the Crown’s case, although the Crown will still be able to proceed with the prosecution if the evidence were excluded. The evidence in question is real, not conscripted, and it is reliable.

Conclusion [ 64 ] Accordingly, the application to exclude evidence for breach of the accused’s rights under s. 8 of the Charter is dismissed. ___________________________ K. van Rensburg J. Released: April 30, 2013 CITATION: R. v. Akintunde, 2013 ONSC 2522 COURT FILE NO.: 1469/11 DATE: 20130430

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – GEORGE AKINTUNDE and OLUFUNMILAYO AKINTUNDE RULING ON S. 8 APPLICATION K. van Rensburg J. Released: April 30, 2013