R. v. Levy, 2013 ONSC 4362

CITATION : R. v. Levy, 2013 ONSC 4362 COURT FILE NO.: 1502/11 DATE: 20130624 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: ) ) HER MAJESTY THE QUEEN Respondent/Crown ) ) ) Carol Letman, for the Crown ) ) - and - ) ) ) CYNTHIA JENNIFER LEVY ) ) ) David North, for the Applicant Applicant/Defendant ) ) ) ) ) HEARD: May 27-29, 2013 Ruling #2 re: Admissibility of Cell Phone Conversation Wein J. “We [speak] for all to overhear while we walk the streets or ride a bus.

Privacy is a currency that we all now routinely spend to purchase convenience.“ [1] Overview [ 1 ] When we voluntarily speak into a cell phone at the airport, can we insist on a right to privacy that precludes our overheard comments from being used against us? [ 2 ] Ms. Levy is charged with importing four kilograms of cocaine into Canada from St. Lucia. The Canadian Border Services Agency

(CBSA) had received information that she would be bringing in that quantity of drugs, and accordingly placed a lookout notice on theircomputer system and conducted surveillance of her in the airport. [3] Border Officer Juliao testified that he observed Ms. Levy in the baggage area prior to her being sent to secondary inspection. Bythat time, there were virtually no bags left on the carousel, and that area of the hall had few people around. There was one other family, aman and a woman and two children, who seem to be having a conversation about their lost luggage. [4] Ms.

Levy, who was known to Border Officer Juliao because her clothing fit the exact description he had been given, was standingnear to the carousel. He testified that she appeared upset and not happy. [5] He stood at a distance of about two to three feet away and overheard her conversation. She was talking in a low voice, with a cellphone to her ear. He heard her say, “The ribbon is still on it”. Then she put the phone down to her waist, entered something on thekeypad, and put the phone back to her ear.

She then stated, “three guys are standing watching me”, and “you’re freaking me out”, “hurryup”. [6] He noted that there was a green ribbon attached to her red suitcase. Eventually, she departed towards the point area and wasreferred to a secondary inspection. [7] Ms. Levy did not testify on the voir dire. Argument [8] The Applicant argues that that the statements overheard by the Border Services Officer ought to be excluded as an infringement ofMs. Levy’s privacy rights under sections 7 and 8 of the Charter.

Counsel for the Applicant acknowledges that there is no case lawdirectly on point, and that his argument would be expanding the existing parameters of privacy rights under the Charter to a subjectivearea of an “invasions of personal space”, in which an individual might be unaware that other members of the public could overhear them. [9] As I comprehend the argument, it was also based in part on the fact that since the CBSA already had overwhelming evidence thatMs.

Levy was a person who should be searched, such that that the search of her would be inevitable, they ought not to have been tryingto get more information at that stage. This was not simply a routine investigation where the agents were trying to decide whether to sendher to secondary inspection for a search, since they already had decided to search her, which makes its interception and admission at trialunfair. [10] The Applicant relies on passages from the Supreme Court of Canada decision in Duarte, (SCC), [1990] 1S.C.R. 30, and more specifically on the decision of this Court in R. v.

Darlington, 2011 ONSC 2776. [11] The Court in Darlington summarizes the principles underlying the legislation concerning privacy rights and expectations inairports, in the context of a case that, like this one, involved the importation of narcotics. At para. 75, the Court set out the well-developed jurisprudence concerning rights at border-crossings, including:

(1) Arriving passengers must accept that they will generally be the subject of routine scrutiny by Canada’s border authorities: R. v. Jones (ON CA), (2006), 211 C.C.C. (3d) 4 (Ont. C.A.), at paras. 24, 30.

(2) The routine screening process inevitably involves questioning of the person seeking to gain entry to Canada. Such a person is legally obliged to respond truthfully to questions asked by an officer in the performance of his or her duties: Customs Act, R.S.C. 1985, c. 1 (2nd Supp.).

(3) A person arriving at the border can also reasonably expect that luggage will routinely and randomly be searched: R. v. Simmons (SCC), (1988), 45 C.C.C. (3d) 296 (S.C.C.), at p. 312; Jones, at para. 30; R. v. Jeanmarie, [1989] O.J. No. 287 (C.A.), at pp.1-2. This may include x-raying or ion scanning: Kelly v. Palazzo 2008 ONCA 82 , (2008), 89 O.R. (3d) 111 (C.A.), at para. 53(leave to appeal refused [2008] S.C.C.A. 152).

As well, routine screening, at a permissibly unobtrusive level not engaging a reasonableexpectation of privacy, can include a pat or frisk of outer clothing (Simmons, at p. 312) or a direction to empty pockets: R. v. Hudson (ON CA), (2005), 203 C.C.C. (3d) 305 (Ont. C.A.), at paras. 2, 4, 22-3, 38. .........

(5) Routine screening does not engage a coercive or adversarial relationship between government agents and an incoming traveller:Jones, at para 33.

This is so whether the screening is entirely random or as a result of referral to customs secondary examination(Dehghani, at p. 1073; Hudson, at paras. 35, 38) in an effort to focus the exercise on persons of interest, for example, upon a “look-out”: Second, I do not regard the distinction between those who can be said to be targets of criminal investigations at the border and those whoare not targets of such investigations in and of itself determinative of a s. 7 claim. In a general sense, everyone who is questioned at theborder and whose luggage is examined is the target of an investigation.

Questions are asked and routine searches conducted to findindividuals who are in breach of border-related laws. It only makes good sense that those responsible for enforcing border regulationswill focus their routine questions and searches on persons who have for some reason attracted their interest. In my view, the mere factthat a person has attracted the suspicion of a Customs official, thereby causing that office to ask routine questions and conduct a routine

search, should not give that individual any enhanced constitutional protection against self-incrimination. (Jones, at paras. 38, 40) ...... In the present case, while there was information available to the primary and secondary officers that Mr. Sahota was a “target” or “look-out” for drugs, and the more detailed ICES report was available to the secondary officer, the customs officials did not have any specificinformation that would link him to a particular offence until his luggage was searched.

He was dealt with in the same manner as anypassenger who had attracted the attention of customs officials by reason of his or her own conduct or answers to routine questioning.Any number of factors may cause a customs officer to become suspicious of a passenger, including a tip that a person may be carryingdrugs or other contraband. The existence of a tip or look-out, without any specific information to assess its reliability, would not amountto a “sufficiently strong particularized suspicion” sufficient to constitute detention. (R. v. Sahota, [2009] O.J. No. 3519 (S.C.J.), at para. 47) .........

(6) However, constitutional interests of self-incrimination and right to counsel become engaged where the generality and routineness ofthe screening exercise give way to more specific and intrusive measures, for example: (

a) the individual becomes the target of a focused criminal investigation as in circumstances where there exists “a sufficiently strongparticularized suspicion” of contravention of the law: Jones, at paras. 24, 42; R. v. Kwok(1986), (ON CA), 31 C.C.C.(3d) 196 (Ont. C.A.), at pp. 207-8 (

b) when particularized indicia of contraband are discovered: Sahota, at para. 48; R. v. Baptiste, 2010 ONSC 4465 , 2010 ONSC4465, at paras. 87-8, 92. .........

(7) Certainly, the more intrusive the category of border search upon personal privacy and bodily integrity, the greater the degree ofconstitutional protection: R. v. Monney, (SCC), [1999] 1 S.C.R. 652, at para. 38; Simmons, at pp. 312, 318-21.

(8) A person detained within the scope of ss. 9 and 10 of the Charter must immediately be informed of the right to counsel and providedaccess to counsel when requested: R. v. Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460, at paras. 37-42. This state obligation arisesprior to a search of a person for drugs, whether the person is under arrest (R. v. Debot, [1998] 2 S.C.R. 1140, at paras. 43-5; R. v. Glykis (ON CA), (1995), 100 C.C.C. (3d) 97 (Ont. C.A.), at pp. 99-101) or under detention for example for a Customs Actpersonal search: Simmons, at pp. 315-6; Jacoy, at paras. 6-8, 14; R. v.

Granston (ON CA), (2000), 146 C.C.C. (3d)411 (Ont. C.A.), at paras. 26, 30, 43-7. [12] Of course, in this case, there was no suggestion that Ms. Levy was under investigative detention while standing at the carousel.Border Officer Juliao simply positioned himself to overhear a conversation being made in a public place. Ms. Levy spoke in a low voice,as if to prevent herself from being overheard. But the officer, in plain clothes as if a disinterested passenger, was close enough tooverhear. [13] Ms. Levy simply took inadequate steps to ensure her privacy in a public place. No privacy interests were involved.

She had noreasonable expectation of privacy in the circumstances, and by her own conduct lost the privacy she wanted. [14] Accordingly, the application must be dismissed. The statements are admissible at trial. “Original signed by:” ___________________________ Wein J. Released: June 24, 2013 CITATION: R. v. Levy, 2013 ONSC 4362 COURT FILE NO.: 1502/11 DATE: 20130624

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: HER MAJESTY THE QUEEN - and - CYNTHIA JENNIFER LEVY Ruling #2 re: Admissibility of Cell Phone Conversation Wein J. Released: June 24, 2013