R v. Johnson and Bancroft, 2021 ONSC 1307 and 2021 ONSC 6442
In May 2017, Officer Down obtained a warrant pursuant to the Controlled Drugs and Substances Act SC 1996 c19 (the “CDSA”) to download and search data from Jahmyle Johnson’s cellphone after he was arrested on drug trafficking charges.
While examining the cellphone, Officer Down found a history of internet searches in relation to a home invasion in Carron and a shooting in Barrie, as well as communications between Mr. Johnson and Mr. Bancroft, an accused in the Carron home invasion. Officer Down contacted two investigators – Detective Fahey, in Carron and Detective Frith, in Barrie – to tell them about the cellphone browser history.
Although Mr. Johnson wasn’t previously a suspect in the Carron investigation, Detective Fahey included an earlier mugshot of him in two photo lineups. Among other evidence, Mr. Johnson was arrested and charged based on witness statements after they saw his photo in the lineups.
Detective Fahey reviewed the cellphone data again in 2019, shortly before the preliminary inquiry, without a warrant and without obtaining a copy of Officer Down’s CDSA warrant .
In advance of their trial, Mr. Johnson and Mr. Bancroft applied section 24(2) of the Charter to have the cellphone evidence excluded from evidence on the basis that cellphone searches violated their section 8 Charter rights. In her ruling indexed as 2021 ONSC 1307, Justice Gomery excluded the cellphone data agreeing that the search was a violation of their right to be free from unreasonable search and seizure. Justice Gomery found the only authorization of a search of Mr. Johnson’s cellphone was the CDSA warrant, which did not permit a search for evidence relating to the Carron home invasion. Justice Gomery also found the investigators’ conduct showed “a lack of awareness of the limits of authority conferred by a search warrant for a cellphone, and a reckless disregard for the privacy rights of its owner.”
At trial, Mr. Johnson and Mr. Bancroft applied under section 24(2) of the Charter to exclude the witness statements obtained at the 2017 photo lineups, arguing that the lineup evidence was the fruit of a search that was found to be unreasonable.
Although the Court found the lineups would not have occurred absent the unreasonable search, the evidence was ultimately held to be admissible after weighing the three factors set out in in R v. Grant, 2009 SCC 32: (i) the seriousness of the Charter-infringing conduct, (ii) the impact of the breach on the accused’s Charter-protected interests, and (iii) society’s interest in an adjudication on the merits.
(i) The seriousness of the Charter-infringing conduct
In her ruling indexed as 2021 ONSC 6442, Justice Gomery determined that considering Detective Fahey’s improper use of cellphone evidence in 2019 was unnecessary as that evidence had already been excluded (i.e. the Charter violation had been remedied).
On the first Grant factor, Justice Gomery found that Officer Down’s conduct, in searching for and seizing information unrelated to his investigation, and Detective Fahey’s conduct, in failing to confirm that the information was lawfully obtained, was moderately serious and that the officers’ disregard for the limits of their authority was troubling.
(ii) The impact of the breach on the accused’s Charter-protected interests
Despite the breach of Mr. Johnson’s dignity and privacy rights, the more consequential impact of the officers’ conduct was the information Detective Fahey obtained which allowed him to identify Mr. Johnson as a suspect in the Carron home invasion and robbery.
Justice Gomery, however, was satisfied the evidence from Detective Frith was sufficient to infer that Detective Fahey would have lawfully obtained that information from her without the illegal search. The second Grant factor weighed in favour of admitting the lineup evidence.
(iii) Society’s interest in the adjudication of the case on the merits
After assessing whether the lineup evidence was objectively reliable, Justice Gomery found that exclusion would result in disregarding all of Mrs. Carron’s statements to police at the first lineup. Justice Gomery was satisfied that since Mrs. Carron was a credible witness, her evidence was important to the truth-seeking function of the trial and that the third Grant factor also weighed in favour of admitting the lineup evidence.
Despite the moderately serious nature of the Charter violations, the other two Grant factors weighed in favour of admitting the evidence pursuant to section 24(2) of the Charter. Although neither lineup yielded an unequivocal identification, they generated other evidence relevant to a determination on the merits of the case.
R v. Riley Kostuk, 2021 ONSC 6090
The accused was charged with second degree murder in the death of Jacob Peets in 2019.
The Crown brought an application seeking a ruling that three statements given to the police at various times by the accused were voluntary. The Crown also sought to admit clothing worn by the accused at the time of the murder as evidence.
The first statement occurred briefly after the accused called 911. Officer Nolet, who arrived on scene uniformed, in a marked police cruiser with lights flashing, interviewed the accused on the front doorstep of 38 Plymouth Ave, a short distance away from the murder scene at 45 Plymouth Ave where the accused lived.
Officer Nolet did not have a recording device but made point-form notes of their discussion. At this stage of the investigation, Officer Nolet saw the accused as a key witness but not as a suspect or person of interest. The accused was not cautioned or offered the chance to call a lawyer.. As they talked, the accused became visibly upset and distracted as they had a perfect view of the activities of the other first responders.
The second statement was made by the accused after Officer Nolet suggested they move to the rear of 45 Plymouth Ave. The accused stated that he had gone into his home to pay money for a taxi which just let them off, and that when he returned, Mr. Peets was lying on his stomach with blood coming out of him.
At the homicide investigation team meeting that night, it became apparent an eyewitness had told a different story than the accused. The witness, a neighbour who heard a commotion and looked out her window, saw two males pushing and shoving each other. She stated that a male wearing a black T-shirt and khaki shorts, pushed the other to the ground and ran back into 45 Plymouth Ave.
When he gave the two statements, the accused was wearing a black T-shirt and khaki shorts with blood on them. After the team meeting, Sergeant Thiebert concluded that the blood-stained clothing would likely be important and ordered them seized, testifying that he believed it was impracticable to wait to get a warrant as the integrity of the clothes as evidence could be jeopardized.
The accused agreed to give up the clothes after being taken to the police station. He had access to cellphones but did not call a lawyer. After all the witnesses, including the taxi driver, were interviewed, Sergeant Thiebert concluded there were reasonable and probable grounds to arrest the accused.
The third statement was made by the accused in a video interview after he was taken to Niagara Regional Police headquarters. He spoke to his lawyer privately and was extensively cautioned prior to the interview. The accused was satisfied with his lawyer’s advice, confirmed he understood the charges, and stated that he did not have any thing to say.
The accused opposed the Crown’s application arguing his section 10(a) and 10(b) Charter rights were violated to such an extent that the impugned statements should be considered involuntary. He argued that he was detained from the moment Officer Nolet arrived on the scene and that the video statement was contaminated by the prior Charter breaches.
In her ruling, Justice Arrell considered R v. Oickle, 2000 SCC 38, where the Supreme Court of Canada stated a confession will not be admissible if it was made under circumstances that raise a reasonable doubt as to voluntariness. Interrogators subjecting the suspect to oppressive conditions or offering strong inducements to produce an unreliable statement can operate together exclude confessions. Whether it is threats or promises, the lack of an operating mind, or police trickery that denies the accused’s right to silence, courts have consistently protected the accused from having involuntary confessions introduced into evidence.
Justice Arrell did not hesitate in concluding that the first two statements were voluntary – the accused called 911, was standing at the scene, told police it was his best friend who was injured and insinuated the taxi driver had caused the injury. In addition, the accused was not treated as a suspect before the homicide investigation team meeting revealed that he may not have been truthful in giving his account of what happened.
Similarly, Justice Arrell was satisfied that the video statement was also voluntarily given. In addition to the cautioning from police and counsel from his lawyer, the accused was given his medication, had slept, and was fed – he never lacked an operating mind during the interview.
In respect of the admissibility of the clothing, the onus was on the Crown to show the reasonableness of the seizure on a balance of probabilities because there was no warrant: R v. Merritt, 2017 ONSC 80. Justice Arrell was satisfied the clothes were seized under exigent circumstances and that no Charter violations had taken place.
In ruling the clothes admissible, Justice Arrell noted that not only was it imperative that the integrity of the clothes be maintained, but also that there were ample grounds to obtain a warrant and it was impractical to do so in the circumstances.
Conclusion
The cases above underline the importance of understanding the lawful scope of investigative powers. If officers find themselves in a situation where the limits of the current investigation are unclear, whether it is obtaining a statement or following up on another officer’s findings, care must be taken to respect Charter rights or there is a chance that the evidence procured, however crucial, may be excluded.
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