The Defence Toolkit – June 25, 2022

This week’s top three summaries: R v Schirmer, 2022 BCCA 214: #police disciplinary records, R v F(JM), 2022 MBCA 52: #youth right to #counsel, and R v Hussein, 2022 ABCA 219: #judicial notice.

This week's top case deals with credibility of police in a drug case. For great general reference on the law of related to drug prosecutions, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.

R v Schirmer, 2022 BCCA 214

[June 16, 2022] Production of Police Disciplinary Records: 3rd Party Records - Appeal Production [Reasons by DeWitt-Van Oosten J.A. with Grauer and Marchand JJ.A. concurring]

AUTHOR’S NOTE: In drug cases, sometimes the defence comes up against questionable police evidence in relation to exhibits. Often fudging the money count goes unsaid as it rarely benefits one's client to say there was actually more money than police claim was recovered. Here, the question arose because of serious allegations of corruption where the key police officer in the case was said to have given inside information to criminals, but the disciplinary action did not arise until the accused here was already convicted. The officer's role in the prosecution was to recover in the accused's home, the key for a safe containing drugs in a stash house. Undermining his credibility about this find was crucial to the defence case and had failed at trial. Subsequent applications for production of disciplinary records resulted on appeal. The importance of this decision is the likely relevance of these records was made out - ie. the disciplinary records of the officer could be useful in determining his credibility in the underlying matter despite them being about some other case. 

Introduction

[1] The appellant, Horst Francisco Schirmer, was tried in the British Columbia Supreme Court on six counts of possession of drugs for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[3] Mr. Schirmer has appealed from conviction and sentence. He applies under s. 683(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, for the production of records to support a fresh evidence application that will target the credibility and reliability of a key police witness who testified at his trial. Since the trial, that witness has been the subject of both a criminal investigation and a disciplinary investigation under the Police Act, R.S.B.C. 1996, c. 367.

Background

Circumstances Underlying the Convictions

[5] The drugs that led to Mr. Schirmer’s convictions were found by the police while executing a search warrant at an apartment in Victoria in early 2017. A large cache of drugs was found in a safe at the bottom of a hall closet (the “Safe”), including cocaine, heroin, a mixture of heroin and fentanyl, MDMA and methamphetamine. The police also found bottles containing GHB in the freezer compartment of a refrigerator (the “Freezer”).

[7] Mr. Schirmer did not live in the apartment. It was occupied by a co-accused. Relying on s. 4(3) of the Criminal Code, the Crown alleged that Mr. Schirmer was either in constructive possession of the drugs or in joint possession with the co- accused. The Crown theorized that Mr. Schirmer was a high-level drug trafficker and the apartment was used as his “stash house” (at para. 25).

[8] The Crown called surveillance evidence at the trial, some of which showed an association between Mr. Schirmer and the apartment. Both Mr. Schirmer and automobiles associated with him were seen “in and around” the parking lot of the apartment building. There was also evidence that in the month prior to the search, Mr. Schirmer was seen to enter the apartment without a key (at paras. 17–18). When Mr. Schirmer was arrested as part of the drug investigation, the police found a score sheet in the glove compartment of his car (at para. 21). That score sheet contained notations that “correspond[ed] with the contents of the [S]afe” (at para. 37).

[9] The trial judge found that Mr. Schirmer was in constructive possession of the drugs in the Safe (but not the Freezer). The Crown proved both knowledge and control of the drugs in the Safe beyond a reasonable doubt.

[10] The surveillance evidence and the score sheet in the glove compartment played a supportive role in the trial judge’s conclusion. The Crown also tendered a “single-page photocopy of a score sheet” seized from Mr. Schirmer’s residence that matched a page from a notebook found in the Safe (at para. 38).

[11] The “most important” evidence in proving control over the drugs was a key found in Mr. Schirmer’s bedroom that opened the Safe (at para. 29). [PJM Emphasis]

[12] ...The trial judge summarized the evidence surrounding the key this way:

[31] ...Cst. Ferris entered [Mr. Schirmer’s residence], and at 3:00 a.m., he found keys hanging on a lanyard in Mr. Schirmer's bedroom. He took those keys to [the apartment that housed the drugs] and along with Cst. Moore, they found that one of those keys opened the large Honeywell safe. The lanyard with that key has been marked as Trial Exhibit 5.

[13] The seizing of the lanyard and keys was not documented with photographs (at paras. 33–34). Cst. Ferris testified that he seized the lanyard before the arrival of the Forensic Identification Section, which had responsibility for taking photographs. The lanyard was not itemized in the search warrant. Rather, it was seized on the basis that it was in plain view. After the lanyard and keys were delivered to the apartment with the Safe and used there, Cst. Ferris returned to Mr. Schirmer’s residence. He took the lanyard and keys with him. They remained “in [his] pocket for the entirety of the search” of Mr. Schirmer’s home. Cst. Ferris testified that at the end of the search, the police were “packing up” and he remembered that he had “one more exhibit in [his] pocket”. He put the lanyard and keys in an exhibit bag and “secured it for processing”. Cst. Ferris said he seized the lanyard because he believed it resembled one he had seen in Mr. Schirmer’s possession while under surveillance. However, he later came to realize that it was not the same lanyard. [PJM Emphasis]

[14] In its closing submissions at the trial, the Crown described the key that opened the Safe as “compelling evidence” of Mr. Schirmer’s control over the drugs. The score sheets found in his bedroom proved knowledge. Together, this evidence established constructive possession.

[16] Defence counsel was asked whether he alleged that the police officers were lying or mistaken about the key. He said he did not “have enough evidence to say that [Csts. Ferris and Moore were] lying”. However, he argued that the testimony surrounding the key did not make sense. In particular, “[i]t [did not] make sense that [the key] would simply be taken from the room on an urgent basis when [there was] no urgency”. There were “enough inconsistencies ... that [the trial judge] should have some doubt about the veracity of that piece of evidence to the extent that it support[ed] [the] Crown[‘s] theory”. The “lack of documentation being so glaringly different from everything else should cause [the trial judge] to have some doubt”.

[17] It is apparent from exchanges between the trial judge and counsel in closing submissions that the trial judge had concerns about the reliability of the evidence surrounding the key. Ultimately, however, based on the strength of Cst. Ferris’ testimony, he relied on the key to convict Mr. Schirmer:

Post-trial Developments

[19] Mr. Schirmer’s convictions were entered in February 2019...

[20] As at the date of the trial, Cst. Ferris did not have a police disciplinary record within the meaning of R. v. McNeil, 2009 SCC 3.

[21] On June 17, 2020, Cst. Ferris became the subject of an investigation under the Police Act. The RCMP’s Island District General Investigation Section (“IDGIS”) was responsible for that investigation.

[22] The Police Act investigation was suspended to await the outcome of a criminal investigation that was also underway in relation to Cst. Ferris. The criminal investigation was conducted by the RCMP’s Anti-Corruption Unit (the “ACU”).

[24] In November 2020, the Crown provided further information. Among other things, the criminal investigation into Cst. Ferris’ activities had been initiated at the request of the Vic PD. Information that led to the investigation first came to the attention of the Vic PD “sometime in 2019”. Cst. Ferris was “alleged to have obstructed justice by providing sensitive information to suspects of police investigations” in 2020. The ACU investigation did not identify Mr. Schirmer as an associate of Cst. Ferris. Nor did it identify any other police officer as being involved with Cst. Ferris’ alleged activities. The Crown declined to provide further details of the investigation because it would “compromise informer privilege”.

[25] Counsel for Mr. Schirmer requested greater specifics from the Crown, including the precise date on which the Vic PD became aware of potentially unlawful activity by Cst. Ferris and whether the ongoing criminal investigation had identified various persons (listed by counsel) as possible “associates of Cst. Ferris”. The list included the co-accused who occupied the apartment with the Safe.

[26] In December 2020, the Crown responded to Mr. Schirmer’s requests. It was “unable to provide answers” on the basis that disclosing details of the ACU investigation would “compromise informer privilege”.

[27] The criminal investigation concluded in January 2021. The Police Act investigation then proceeded.

[28] In March 2021, the Crown notified Mr. Schirmer’s counsel that neither the Vic PD nor the Crown became aware of the allegations against Cst. Ferris until after Mr. Schirmer was sentenced in July 2019.

[30] In September 2021, Mr. Schirmer’s counsel was advised that a Discipline Authority under the Police Act had determined that 19 counts of “potential misconduct” by Cst. Ferris “appeared to be substantiated”. This included: “13 counts of improper Disclosure of Information, 3 counts of Deceit, 2 counts of Discreditable Conduct, and 1 count of Neglect of Duty”. The proposed discipline for Cst. Ferris “include[d] dismissal”. The findings of the Discipline Authority did not constitute a “final determination of whether or not Cst. Ferris [had] committed misconduct”. That would only be decided at the conclusion of a discipline proceeding.

[32] Consequently, neither the Crown nor Mr. Schirmer are presently aware of the circumstances underlying the ACU and Police Act investigations.

[34] I understand that no criminal charges have been approved in relation to the ACU investigation. The Court has been told that Cst. Ferris has resigned from the Vic PD.

Grounds of Appeal

[36] Mr. Schirmer will also apply to introduce fresh evidence in the appeal consisting of “information about Cst. Ferris’ criminal activities and arrest by the RCMP’s Anti-Corruption Unit”. The objective of introducing this evidence will be to challenge the credibility and reliability of Cst. Ferris’ testimony at the trial.

Application for Production

[38] To assist with his fresh evidence application, Mr. Schirmer applies under s. 683(1)(a) of the Criminal Code for the ACU, IDGIS and OPCC records....

[41] Second, at a case management conference that preceded this application, the parties agreed the application would proceed in two stages. The first stage would consider whether the records should be produced for the Court’s review. The second stage, should it proceed, would focus on whether the records must be further disclosed to Mr. Schirmer. At the second stage, the Court would consider the statutory confidentiality and privilege claims asserted by the AG Canada and the OPCC. I also understand that in case management, it was agreed that any submissions made on behalf of Cst. Ferris would be heard at the second stage.

[42] Finally, at the hearing of this application, counsel for the OPCC provided the Crown and counsel for Mr. Schirmer with information that, up to the date of the hearing, had been sealed from their review. The information was provided at the request of the Court on the basis that it would enable more informed submissions on issues relevant to the first stage of the production application. All parties consented to the information being received in camera. This consent extended only to the first stage of the production application....

Legal Framework

[51] As is readily apparent, the parties disagree on whether the records at issue are first party or third party records. In criminal proceedings, including appeal proceedings, the difference in characterization has both procedural and onus implications.

[54] Based on the principles developed and applied in those cases, modified where necessary to fit the appeal context, I consider the following framework to govern the application before us:

• After conviction and during the appeal process, the Crown is duty-bound to disclose to an appellant any records in its possession or control where there is a reasonable possibility the information may assist the appellant in the prosecution of their appeal.

R. v. Trotta (2004), 23 C.R. (6th) 261 at para. 25 (Ont. C.A.); McNeil at para. 17; R. v. Johnston, 2019 BCCA 107 at paras. 47, 59–60, 66 [Johnston (2019)]; R. v. Moazami, 2020 BCCA 3 at paras. 37, 48; R. v. Orr, 2020 BCCA 319 at para. 23.

• This is a first party disclosure obligation. It subsists throughout the appeal proceedings. New information that falls in its scope must be disclosed when received. The Crown’s duty to disclose first party records is triggered upon request and there is no requirement that the appellant apply to the appeal court for disclosure.

Gubbins at para. 19.

• For the purpose of first party disclosure, the Crown is the prosecuting Crown. All other federal and provincial Crown entities, including police agencies, are third parties.

R. v. Quesnelle, 2014 SCC 46 at para. 11.

• However, police agencies have a corollary disclosure obligation to provide the Crown with the “fruits of the investigation” that led to the convictions at issue in the appeal, as well as any additional information that is “obviously relevant” to the appeal.

McNeil at paras. 14, 23–24; Gubbins at para. 23; R. v. Pascal, 2020 ONCA 287 at para. 106.

• Consequently, when the Crown becomes aware of information in the possession of a police agency or other public entity that is potentially relevant to the appeal, it has a duty to make reasonable inquiries of that agency or entity and to obtain the information, where reasonably feasible, for the purpose of assessing whether it constitutes first party disclosure and must be provided to the appellant.

McNeil at paras. 49–50; Quesnelle at paras. 12, 18; R. v. McKay, 2016 BCCA 391 at para. 50, leave to appeal to SCC refused, 37315 (20 April 2017); Gubbins at para. 21; Moazami at para. 50.

• First party disclosure includes the “fruits of the investigation”, as well as any records beyond the original investigative file that are “obviously relevant” to the appeal. Operational records or background information generally do not fall in scope.

McNeil at paras. 53–54; Gubbins at paras. 22–23; Johnston (2019) at para. 36(e)(ii).

• The Crown is entitled to withhold first party records if the records are clearly irrelevant, privileged or their disclosure is otherwise governed by law. When first party records are withheld, the appellant can apply for production under s. 683(1)(a) of the Criminal Code. The Crown bears the onus of justifying the non-disclosure.

McNeil at para. 18; World Bank Group v. Wallace, 2016 SCC 15 at paras. 114–115; Gubbins at para. 19.

• First party records sought in support of a fresh evidence application that are neither subject to a statutory prohibition on disclosure nor privileged can only be justifiably withheld on the basis of irrelevance. The Crown must show there is no reasonable possibility the records could assist on the application to introduce fresh evidence, and no reasonable possibility the records may be received as fresh evidence in the appeal.

Trotta at paras. 25–28; Johnston (2019) at para. 80.

• Assessing whether records constitute first party records is context- sensitive. In the appeal context, this assessment must be informed by the possible uses of the records in support of an appellant’s grounds of appeal.

McKay at para. 103; Johnston (2019) at paras. 43, 61–65, 80; Moazami at para. 50; Orr at paras. 3, 23–24; R. v. Johnston, 2021 BCCA 34 at
para. 340 [Johnston (2021)], leave to appeal to SCC granted, 39635 (2 December 2021).

• If the material requested by an appellant consists of third party records, the onus is reversed. The Crown has no obligation to produce this material and the appellant can only establish an entitlement to production if they show that the records are “likely relevant” to the appeal.

O’Connor; McNeil at para. 28; Johnston (2019) at paras. 42, 132.

• The assessment of “likely relevance” in the appeal context must be informed by the possible uses of the records in support of an appellant’s grounds of appeal.

Johnston (2019) at para. 80; Orr at paras. 3, 23–24; Johnston (2021) at para. 340.

• To meet this test in support of a fresh evidence application, the appellant must show there is a reasonable possibility the records could assist on the application to introduce fresh evidence, and a reasonable possibility the records may be received as fresh evidence in the appeal.

Trotta at paras. 25–28.

• In assessing “likely relevance”, the Court does not determine whether the records would be admissible as fresh evidence; rather, at the production stage, the assessment is focused on the reasonable possibility of admissibility. The latter threshold is necessary to prevent fishing expeditions.Trotta at paras. 25–28.

Gubbins at para. 28.

• In recognition of the fact that the appellant will not have seen the records, the burden to show “likely relevance” is not onerous. However, the mere assertion that a third party record is relevant to the credibility or reliability of a witness at the trial will not suffice, even where that witness was not peripheral. Instead, the appellant must point to some case-specific evidence or information that objectively justifies the assertion of “likely relevance”. They must show that the sought-after records realistically carry the potential to assist on the application to introduce fresh evidence, and realistically carry the potential to be received as fresh evidence.

Gubbins at paras. 27–28; R. v. Dunbar, Pollard, Leiding and Kravit, 2003 BCCA 667 at para. 69, citing R. v. Batte (2000), 145 C.C.C. (3d) 449 at para. 75 (Ont. C.A.).

• In an application for the production of third party records, an appellant must serve notice on the record holders, along with a subpoena (unless waived), requiring that the records be brought to court for possible production after a hearing.

O’Connor; McNeil at para. 27; Gubbins at para. 25; Johnston (2019) at para. 149; York (Regional Municipality) v. McGuigan, 2018 ONCA 1062 at para. 73.

• If an appellant meets the test for “likely relevance”, the appeal court will proceed to review the records, assess their actual relevance and weigh relevant competing interests as engaged by the particular circumstances of the case, including assertions of legislated confidentiality or privilege.

Dunbar at paras. 48–70; McNeil at para. 35; World Bank at para. 113.

Discusssion

First or Third Party Records

[57] In my view, the records at issue in this application are not first party records.

[58] To begin with, they are not in the possession or control of the prosecuting Crown. They are held by other independent entities. The records have not been produced to the Crown and both the AG Canada and the OPCC claim that as a matter of law, the records cannot be disclosed. The “law cannot impose an obligation on the Crown to disclose material which it does not have or cannot obtain”: McNeil at para. 22, citing R. v. Stinchcombe, [1995] 1 S.C.R. 754 (emphasis added).

[59] Second, without conceding first party status, the Crown made good faith efforts to inquire into the records; however, those inquiries were declined on grounds of statutory or common law prohibitions against disclosure. In these circumstances, Mr. Schirmer’s request for records has the hallmarks of a third party records application, requiring notice to the record holders and a weighing of relevant competing interests: York at para. 91, citing McNeil at para. 49 and R. v. Arsenault (1994), 153 N.B.R. (2d) 81 (C.A.).

[60] Third, the records were not generated or gathered or used by the police agency with conduct of the drug investigation that led to Mr. Schirmer’s convictions. They do not represent the “fruits of [that] investigation”....

[61] In R. v. Jackson, 2015 ONCA 832, leave to appeal to SCC refused, 36829 (30 June 2016), Justice Watt explained at para. 93 that:

In its normal, natural everyday sense the phrase "fruits of the investigation" posits a relationship between the subject-matter sought and the investigation that leads to the charges against an accused. It refers to information acquired by means and in consequence of that investigation. The information includes, but is not co-extensive with, evidence, much less admissible evidence.

[Emphasis added.]

[63] Fourth, I am satisfied the records are not “obviously relevant” so as to make them subject to the Crown’s mandatory disclosure obligation even though they fall outside the original investigative file.

[64] I recognize that to be “obviously relevant”, a record does not have to be potentially decisive of an issue on appeal: Stipo at para. 120. However, the “nature of the relevance of the record” must be obvious: Jackson at para. 125; York at para. 84; Gubbins at para. 23. In other words, it must be clear or self-evident.

[65] Where the relevance inquiry occurs without the benefit of the records (which is the case here), this means the relevance of the records must be obvious from the fact of their existence and what may be known at the material time about their possible content: Stipo at para. 86. The assessment of “obvious relevance” is made “with reference to the stage of the process at which the relevance inquiry takes place”: Stipo at para. 86 (emphasis added).

[67] When assessing “obvious relevance” in the appeal context, it is appropriate for the assessment to be informed by the fact that a convicted appellant is no longer presumed innocent and bears the onus of establishing reversible error. Furthermore, findings of fact and credibility and reliability assessments by a trial judge attract deference on appeal and will generally be respected in the absence of an appellant demonstrating palpable and overriding error....

[68] ...However, based on what we have seen thus far, there is neither a direct nor indirect connection between the misconduct allegations and Cst. Ferris’s role in Mr. Schirmer’s drug investigation. Nor is there any discernable temporal or contextual nexus between the two sets of events.

[69] In these circumstances, and without more, it is difficult to understand how allegations of misconduct against a police officer that arose post-sentencing and are factually unrelated to the case under appeal would be “obviously relevant” to challenging the credibility or reliability of that officer’s evidence-gathering role and testimony, sufficient to engage the Crown’s first party disclosure obligation: McNeil at paras. 54–59.

[73] However, “obvious relevance” is assessed case by case and contextually informed....

[76] In my view, Mr. Schirmer’s request for the production of records in support of his fresh evidence application is properly characterized as a third party records application. I agree with Justice Harris’ comment in Moazami that this Court must be careful to ensure that McNeil is “not evoked as a guise for disclosure requests that ought to be subject to an O'Connor application” (at para. 42).

Likely Relevance

[77] ...we must now ask whether Mr. Schirmer has established “likely relevance” in accordance with the principles set out in O’Connor. The procedural requirements associated with a third party records application are not in issue here. They have been either waived or complied with.

[78] The burden to establish “likely relevance” is not onerous. Mr. Schirmer must persuade us there is a reasonable possibility the ACU, IDGIS and OPCC records could assist on his fresh evidence application and a reasonable possibility the evidence may be received as fresh evidence in the appeal: Trotta at paras. 25–28. These possibilities will only be reasonable if the potential assistance offered by the records and their receipt as fresh evidence is realistic.

Disposition

[94] Accordingly, I would allow the application for production in part, and order that a sealed but unredacted copy of the ACU, IDGIS and OPCC records be produced for the Court’s review.

R v F(JM), 2022 MBCA 52

[June 8, 2022] Charter s.10(b), 8 - YCJA Right to Counsel - Search of Phone [Freda M. Steel, Marc M. Monnin, Karen I. Simonsen JJ.A.]

AUTHOR’S NOTE: This case provides an excellent overview of the connection between the statutory YCJA right to counsel, discoverability of evidence, and subsequent exclusion under s.24(2) of the Charter. Here, the statement taken was simply the identification by the accused during arrest of a phone in his home as his phone. This statement was taken without compliance with the YCJA right to counsel and a subsequent search of the phone was consequently a s.8 Charter violation. Simply put, the enhanced youth right to counsel (not subject to s.24(2) and required compliance having to be proven on a beyond a reasonable doubt by the Crown) prevented the police from being able to rely on the statement to search the phone. 

Introduction

Background

[6] From messages obtained from the appellant’s and the victim’s cell phones, as well as from Facebook records, it appears that the victim arranged to meet with the appellant to fight on the evening in question. In the message exchange, they stipulated that no weapons or backup were to be brought and the police were not to be contacted.

[7] The victim arrived at the scene in the company of two individuals: one, M.P., used her cell phone to record the event. While she was not called as a witness at the trial, the other individual confirmed the accuracy of what was described on the video recording; namely, that the victim exited the vehicle and walked towards an individual whose facial features were not identifiable. Two gunshots can be heard on the video recording. Evidence from the scene and the autopsy confirmed that the victim was shot with a .22- calibre bullet which was consistent with the calibre and make of the ammunition seized at a later time from the appellant’s bedroom. No firearm was located, but photographs extracted from the appellant’s cell phone and Facebook records showed images of at least three firearms, one of which was a rifle of a calibre and with ammunition which were consistent with the bullet casing found at the scene and which could be used with that type of firearm.

[8] The appellant also sent text messages to M.P. after the events although he made efforts to delete them. They included comments which could be interpreted to place the appellant at the scene and the appellant admitting being involved in the shooting. As well, the communications on the appellant’s cell phone between the appellant and his sister after the events detail what was happening at the home when the police arrived and amount to attempts by the appellant to hide his involvement.

Police Investigation and Seizure of the Cell Phone

[9] As a result of Facebook messages found on the victim’s cell phone, the police suspected the appellant...

[10] Two police officers arrived at the appellant’s father’s home, were invited inside into the foyer and, in the presence of the appellant’s parents and sister, told him that he was under arrest. At that time, he was not advised of his right to counsel or of his right to remain silent. The police officers testified that their decision was motivated by the confines of the foyer, the number of people present and a concern for the appellant’s privacy. They believed the enhanced safety and control in the police vehicle would be a better place to do so (ibid at para 55). One of the police officers asked the appellant if he had all his personal property and, specifically, if he had his cell phone. The police officers testified that this enquiry was according to standard practice. In response to the enquiry as to his cell phone, the appellant stated at first that he had disposed of it but, a few seconds later, stated that it was actually within his father’s home but would not be turned over. At that moment, the appellant’s sister took a cell phone out of her pocket and the appellant stated, “That’s my phone”, and said that his sister would hold onto it. When one of the police officers approached the appellant’s sister, she turned away but the officer took the cell phone from her hand.

Evidence on the Voir Dire

[11] ...The cell phone was password protected and the trial judge found that the appellant was the principal user of the cell phone and had a direct interest in it (see paras 20, 46).

[12] The appellant was given his full rights and caution after being placed in the police car. He stated that he wanted his lawyer present during questioning...

...At the police station, in the presence of his mother but prior to the arrival of counsel, one of the police officers reviewed with the appellant in a recorded session the circumstances of the arrest. During that review, the police officer asked the appellant to confirm that he had identified the seized cell phone as his, which the appellant did (see para 17). The officers testified that this review of the circumstances of an arrest is standard procedure and the trial judge accepted it as such (see para 56).

[13] A warrant was obtained to search the contents of the appellant’s seized cell phone and it was agreed by the Crown on appeal that the Information to Obtain (ITO) included the appellant’s statement that the cell phone was his.

Voir Dire Decision

[15] The trial judge concluded that the appellant’s right to counsel was breached. He did so noting that the police understood that the cell phone and other electronic devices were of significant interest in the investigation. While he accepted that the request to gather the cell phone may be standard practice in many cases, he was of the view that it was not in this situation given that the police knew of the appellant’s request to have counsel present, that the cell phone was likely an important piece of evidence and that there was no immediate danger to the police. He concluded that it would therefore have been prudent to inform the appellant of his right to counsel at the time of detention notwithstanding the view of the police officers that the use of the police car was a better location for the formal charge and caution. The trial judge was of the view that the police officers did not act maliciously or in bad faith.

[16] As to the seizure of the cell phone, the trial judge concluded that the seizure of it, while warrantless, was nevertheless reasonable. He further found, on the basis of the Supreme Court of Canada decision in R v Marakah, 2017 SCC 59, that the subject matter of the search was the electronic information contained on the cell phone and not the cell phone itself. As a result, since a warrant was obtained to search the contents, there was no breach of section 8 of the Charter....

...He noted that, while the appellant may have had a subjective expectation of privacy regarding the cell phone, it was not clear whether that was with respect to the cell phone itself or the information contained on it. Similarly, he was of the view that the objective expectation of privacy only related to the contents of the messages and not the cell phone itself. Given that the focus was on the informational content of the cell phone and not the cell phone itself, he found that there was no unreasonable seizure of the cell phone.

[17] Having found that there was a breach of section 10(b) of the Charter, the trial judge proceeded to conduct a section 24(2) analysis...

...While not saying so directly, it would appear that he did not consider the breach as very serious.

[18] In his section 24(2) analysis, although raised by defence counsel as a basis for the exclusion of the statement, the trial judge did not appear to consider the provisions of section 146 of the Youth Criminal Justice Act, SC 2002, c 1 (the YCJA), which govern the taking of statements from youth who are detained or in custody...

Trial Decision

[21] Without reviewing at length the evidence relied upon by the trial judge to conclude that it, as a whole, satisfied him that the appellant shot the victim and did so in a manner which satisfied the requirements of a first degree murder charge, it is clear that the trial judge relied, in part, on the information from the cell phone to do so...

[25] ...the Crown took a principled and, in my view, commendable approach by conceding that, given the trial judge’s findings as to res gestae, there was a likelihood that the statement was inadmissible as it did not meet the requirements of section 146 of the YCJA (see R v LTH, 2008 SCC 49). Crown counsel also admitted that, without the statement, there was no basis for the seizure of the cell phone and it was therefore an unreasonable search contrary to section 8 of the Charter. As well, without the cell phone, there would be no basis for the issuance of a warrant and the obtention of the contents was also therefore an unreasonable search under section 8 as a warrantless search.

[26] The Crown conceded that the failure to abide by the YCJA made the breaches that much more egregious. Given those concessions, the section 24(2) analysis performed by the trial judge was likely flawed and would have to be redone by this Court, taking into consideration the failure to abide by the requirements of section 146 of the YCJA...

Analysis

The Appellant’s Statement: “That’s my phone” and Section 146 of the YCJA

[30] In LTH, Fish J, writing for the majority, provided an overview of section 146 of the YCJA and stated (at paras 2-4):

Section 146 gives statutory expression to common law rules and constitutional rights that apply to adults and to young persons alike. It provides, for example, that no statement by a young person to a person in authority will be admissible in evidence against that young person unless it is voluntary. And it reaffirms the right to counsel enshrined in s. 10 of the Canadian Charter of Rights and Freedoms

Accordingly, s. 146 provides that statements made by young persons are inadmissible against them unless the persons who took them “clearly explained to the young person, in language appropriate to his or her age and understanding”, the specific rights conferred by s. 146. This condition of admissibility has been referred to as the “informational requirement” of s. 146 and it raises two questions that, again, are intimately related.

[31] In addition, Fish J noted the difference between the concept of exclusion of otherwise admissible evidence and the question of the admissibility in the first place of the evidence contained in the statement (at paras 44, 46):

Parliament has considered it right and necessary to afford young persons rights and procedural safeguards which they alone enjoy. Young persons should not lightly be found to have relinquished this enhanced level of protection they were found by Parliament to require. Where a trial judge is not satisfied that the young person understood his or her right to consult counsel and a parent and to have those people present during the statement, or, is not satisfied that the young person appreciated the consequences of waiving those rights, the statement should not be admitted.

[32] In the more recent case of R v Joseph, 2020 ONCA 73, the Ontario Court of Appeal confirmed the obligation of satisfying section 146 of the YCJA, failing which the statement is not admissible...

[33] As to the inter-relationship between the protections provided under section 146 of the YCJA and those provided under section 10(b) of the Charter, the Ontario Court of Appeal, in R v NB, 2018 ONCA 556, confirmed that section 146 was broader than the section 10(b) Charter rights and should be considered prior to the section 10(b) analysis...

[35] The statement did not occur in a situation which could be described as a “technical irregularity”. There was a definite enquiry by the police as to the whereabouts of the cell phone. While explained as being an adherence to protocol, the trial judge was of the view that there was a deliberate attempt to locate the cell phone. In my view, this would not fall within the definition of a “technical irregularity” as found in section 146(6).

[36] As noted by Pepall JA in NB, this section is much more restricted in scope than the analysis that takes place under section 24(2) with respect to the admissibility of evidence after a Charter breach (see para 151). Pepall JA goes on to state the following: “Therefore, judicial discretion to rely on s.146(6) to admit a statement obtained in contravention of 146(2) is significantly confined, reflecting the need to vigorously guard against the diminishment of the protections provided by s. 146(2) and the need for fair treatment for young persons” (at para 156). In R v H (TJ) and C (ADW), 2021 MBQB 245, Martin J states (at para 40):

[37] In summary, where the violation of section 146(2) is serious and results in a young person not being informed of their rights under the YCJA, section 146(6) would not appear to be applicable.

[38] The only conclusion to be reached, based upon the wording of section 146 and the jurisprudence explaining it, is that the trial judge should have considered the failure of the Crown to prove beyond a reasonable doubt that the YCJA provisions had been met before ruling on the admissibility and use of the statement under section 24(2) of the Charter. In short, the statement was inadmissible and the trial judge erred in not considering that fact in his analysis of the seizure of the cell phone and the validity of the warrant obtained to be given access to its contents.

Derivative Evidence: The Seizing of the Cell Phone and the Warrant to Obtain Its Contents

[40] As a result of the appellant’s statement, the police seized the cell phone. As I have set out above, given that the statement was unlawfully obtained—either as a result of a breach of section 146 of the YCJA or section 10(b) of the Charter—the cell phone is physical evidence discovered as a result of that statement and is derivative evidence as described in R v Grant, 2009 SCC 32.

[41] ...The trial judge was of the view that, while the appellant may have had an expectation of privacy with respect to the contents of the cell phone, he did not with respect to the device itself...

[42] The trial judge’s decision was issued shortly before the Supreme Court’s release of its decision in R v Reeves, 2018 SCC 56. In that case, the Crown had argued that there was a distinction between the physical hardware and the subsequent warranted search of the data. Karakatsanis J, for the majority, specifically rejected this approach, stating (at paras 29-31):

. . . [T]his Court has held that the subject matter must not be defined “narrowly in terms of the physical acts involved or the physical space invaded, but rather by reference to the nature of the privacy interests potentially compromised by the state action” (Marakah, at para. 15, citing Ward [R v Ward, 2012 ONCA 660], at para. 65). The guiding question is “what the police were really after” (Marakah, at para. 15, citing Ward, at para. 67).

Here, the subject matter of the seizure was the computer, and ultimately the data it contained about Reeves’ usage, including the files he accessed, saved and deleted. I acknowledge that the police could not actually search the data until they obtained a warrant (see R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 3 and 49). Nevertheless, while the privacy interests engaged by a seizure may be different from those engaged by a search, Reeves’ informational privacy interests in the computer data were still implicated by the seizure of the computer. When police seize a computer, they not only deprive individuals of control over intimate data in which they have a reasonable expectation of privacy, they also ensure that such data remains preserved and thus subject to potential future state inspection.

Thus, I disagree with the Court of Appeal’s assertion that “[s]eizing the computer did not interfere with Reeves’ heightened expectation of privacy in its informational content; it did not imperil any of his legitimate interests, beyond mere property rights” (para. 61). Clearly, the police were not after the physical device (to collect fingerprints on it, for example), but rather sought to preserve and permit access to the data it contained. To focus exclusively on the property rights at issue (that is, on Reeves’ interest in the computer) neglects the important privacy rights in the data that are also engaged by the seizure.

[44] With respect to whether the accused’s subjective expectation of privacy was objectively reasonable, Karakatsanis J explained that, because privacy includes “control over, access to and use of information” (at para 33), the seizure of a computer engages important privacy interests when the purpose of the seizure is to gain access to the computer’s data. She stated that “[p]ersonal computers contain highly private information”, “act as portals — providing access to information stored in many different locations” (at para 34), and can retain information that users may have believed deleted. Karakatsanis J further explained that, “[b]y seizing the computer, the police deprived Reeves of control over this highly private information, including the opportunity to delete it. They also obtained the means through which to access this information. Indeed, these are the reasons why the police seized the computer” (ibid).

[46] While the Reeves decision related to the seizure of a personal home computer, the Supreme Court made it clear in the earlier case of R v Fearon, 2014 SCC 77, that it considers “smart phones” to be the “functional equivalent of computers” (at para 54) and that “[c]ell phones — locked or unlocked — engage significant privacy interests” (at para 53). It is therefore logical to conclude that Karakatsanis J’s statements of law in Reeves apply equally to cell phones.

[47] The reasonable application of Reeves and Fearon suggests that the trial judge was in error when he determined that the appellant’s privacy interests lay solely in the informational contents of the cell phone and, therefore, the seizure of the cell phone itself did not implicate any of the appellant’s privacy interests (see the voir dire decision at para 49).

[48] As the trial judge erred in this regard, it is now necessary to perform a new analysis of the appellant’s reasonable expectation of privacy...

[52] Finally, with respect to whether the appellant’s subjective expectation of privacy was objectively reasonable, Fearon clearly indicates that cell phones, like computers, have unique and heightened privacy concerns associated with them...

[53] Therefore, the appellant had a reasonable expectation of privacy in the cell phone and the police seizure of it constituted a seizure within the meaning of the Charter. As there was no warrant to seize the cell phone at that location and the appellant had not provided informed consent to its seizure, it was presumably unreasonable and it fell to the Crown to rebut the presumption in this case.

[56] ...Immediately prior to the appellant’s statement about the cell phone being present in the home, the officers had no subjective belief that an incidental search of the appellant or the home would reveal any evidence relative to the murder. Their intention to seize was only formed after the appellant made his statement.

[57] Without deciding the issue, it is of concern that, if the seizure would be incidental to the arrest, it is directly attributable to a statement made in violation of section 10(b) of the Charter. As such, it is unlikely that it can be considered to be reasonable or to have been conducted reasonably.

[58] In summary, I am of the view that the seizure of the cell phone was unreasonable and, therefore, in breach of section 8 of the Charter.

[59] ...The basis for the issuance of the warrant was therefore questionable. The admissibility of the cell phone and its contents are therefore subject to a review under section 24(2) of the Charter.

Analysis Under Section 24(2) of the Charter

[63] The first breach is the violation of the appellant’s section 10(b) Charter right to counsel by failing to immediately advise him of his right to counsel and to remain silent upon his arrest, and failing to ask him if he wished to speak to counsel and then asking questions of him. That breach was also compounded by the police conduct in not respecting the provisions of section 146 of the YCJA.

The Seriousness of the Breach(es) (or Conduct)

[65] In my view, both of these breaches were of a serious nature and as a result of police conduct which needs to be commented upon. The following factors should be taken into account respecting the seriousness of the violations:

1. the failure to provide the appellant with his right to counsel without delay;
2. although the police provided an explanation as to why they chose not to do so (given the space limitations and privacy concerns), it was in contravention of the longstanding law requiring police officers to provide section 10(b) Charter rights to detainees immediately absent police officer safety concerns (see R v Suberu, 2009 SCC 33 at para 42);
3. the officers not only failed to provide the appellant with his rights, but continued to question him and elicit information from him about an important piece of evidence they knew they were looking to obtain—the cell phone;
4. while it was suggested by the police officers that it was “standard procedure” to ask detainees about their phones, the trial judge determined that the utilization of this procedure in these circumstances was inappropriate;
5. such behaviour would suggest a cavalier attitude towards the Charter obligations under section 10(b) and the requirements of the YCJA;
6. this was compounded at the police station where the officers had the appellant confirm on a video recording that he had identified the cell phone as belonging to him even though he had asked for counsel and it had been agreed that counsel would be present during his questioning, again contrary to the requirements of the YCJA;
7. while the trial judge found that the police officers had not acted in bad faith when asking about the cell phone, but acted inappropriately, it should be remembered that an absence of bad faith does not equate to a positive finding of good faith (see R v Le, 2019 SCC 34 at para 147);
8. the breach of the appellant’s right to counsel should also be considered particularly serious given the nature of the offence, the serious consequences of a conviction and the concurrent failure to comply with section 146 of the YCJA when those requirements had been around for a very long time (see R v LaFrance, 2021 ABCA 51 at para 79); and

R v Hussein, 2022 ABCA 219

[June 15, 2022] Judicial Notice [Patricia Rowbotham, Barbara Lea Veldhuis, and Bernette Ho JJ.A.]

AUTHOR’S NOTE: This case provides and adopts an excellent ONCA summary of the principles of Judicial Notice. Applied to the facts of the case, the trial judge here erred by taking judicial notice of the "fact" that it is not "possible" to take a plastic garbage bag from a box without taking off gloves (ie. the reason for a fingerprint on a bag left at the scene of a un unlawful confinement). Admittedly this might be a difficult task, but impossibility is likely too high a conclusion for judicial notice, particularly where this was done without input from defence or crown counsel at trial. 

Introduction

[1] The appellant, Khalid Hussein, appeals his conviction for extortion, unlawful confinement, and forcible entry.

Background

[2] Three men forced their way into a Fort McMurray apartment occupied by the complainant, who was staying with a friend while looking for work. The complainant was struck with a gun, bound with rope, and cut with a knife. His head was partially covered with a Walmart bag which was removed because it was too small, and then more fully covered with a larger, black plastic garbage bag. The perpetrators demanded money and drugs, and eventually extorted $2000 from the complainant who was forced to e-transfer money from his bank account. The perpetrators eventually realized they were in the wrong apartment and left. The complainant immediately went to the police, who shortly thereafter took photographs of the apartment.

[4] At trial, the sole issue was whether the appellant was one of the perpetrators. The complainant was unable to identify any of the perpetrators as they were masked or had the hoods of their hoodies pulled tight around their faces. The complainant testified that two of the three men were wearing gloves.

[5] A garbage bag that was seized from the scene contained four fingerprints that matched those of the appellant and one from an unidentified person. The theory of the defence was that the garbage bag did not come from the apartment because of the unidentified fingerprint when the evidence of the complainant was that two of the three perpetrators were wearing gloves.

[6] The trial judge accepted the testimony of the complainant that the box of garbage bags on top of a mini fridge as seen in a police photograph was not put there by the complainant but was kept under the sink. From this, the trial judge held the only consistent explanation was the box was removed from under the sink and a garbage bag extracted to put over the head of the complainant. He found that the extra fingerprint on the garbage bag was explained as follows:

...I would challenge somebody to stick a gloved hand into one of those and pull out a garbage bag. I take judicial notice they come in a roll, the garbage bag has -- garbage bags have to be detached and, really, the logical way that you get a garbage bag out of those, you’re not going to be able to do it very easily with a glove. Take a glove off and pull it off. So it’s a perfectly rational explanation as to why two prints could appear on that garbage bag...

[7] The trial judge concluded the evidence was entirely consistent with the appellant’s guilt and he saw no evidence that would be consistent with any other rational explanation as to how the appellant’s fingerprints ended up on the garbage bag.

Standard of Review

[17] The Ontario Court of Appeal further explained that judicial notice has a procedural dimension at paras 36-38:

The issue of judicial notice most often arises when a party requests the trier of fact to take judicial notice of a fact. Other parties then may support or oppose the request. The adversarial process ensures a transparent consideration of the request.

More problematic are the occasions on which judges take judicial notice without the benefit of submissions from the parties. Such conduct by a judge lacks transparency, thereby risking the perception of the fairness of the hearing. It also risks crossing the boundary separating the notorious and readily demonstrable from the disputed and controversial, again risking the perception of procedural fairness. As put by the authors of Sopinka: “Judges should not conduct their own research and come to the conclusion that facts are notorious, for, there is no opportunity for the parties to respond”: at §19.61.

Where a judge, on his or her own initiative, wishes to take judicial notice of a fact or state of affairs that bears on a key issue in a proceeding, the adversarial process requires that the court ensure that the parties are given an opportunity to deal with the new information by making further submissions, oral or written, and allowing, if requested, fresh material in response: Paciocco at p. 582.

[20] This was not such a situation where judicial notice could be taken of disputed facts. Neither situation for judicial notice is met in this case. The trial judge was speculating in the absence of any evidence when he attempted to explain the presence of the unidentified print on the garbage bag.

Conclusion

[26] The appeal is allowed, and a new trial ordered.