R. v. Chehil (M.S.), 2009 NSCA 111

• Judge: Bateman, Saunders and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 21, 2009
• Jurisdiction: Nova Scotia
• Citations: 2009 NSCA 111;(2009), 284 N.S.R.(2d) 130 (CA)

R. v. Chehil (M.S.) (2009), 284 N.S.R.(2d) 130 (CA);

    901 A.P.R. 130

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. NO.027

Her Majesty the Queen (appellant) v. Mandeep Singh Chehil (respondent) and The Canadian Civil Liberties Association (intervenor)

(CAC 307354; 2009 NSCA 111)

Indexed As: R. v. Chehil (M.S.)

Nova Scotia Court of Appeal

Bateman, Saunders and Oland, JJ.A.

November 6, 2009.

Summary:

Operation Jetway was an R.C.M.P. program designed to curtail drug trafficking. Using drug courier profiles it identified and investigated suspected drug couriers. Two members of the Jetway team attended the Westjet office at the Halifax International Airport and requested permission to view the passenger manifest of the incoming overnight Westjet flight from Vancouver. Westjet staff agreed that they could view the computer manifest. The officers were looking for passengers travelling alone who had purchased a one way ticket with cash shortly before departure and checking a single bag. The officers identified the accused as fitting those Jetway indicators. Westjet provided the accused's baggage ticket number. A sniffer-dog indicated the presence of controlled substances in the accused's bag. When the accused collected his bag, he was arrested for possession of a controlled substance. His bag was opened and found to contain three kilograms of cocaine. The accused was charged with possession of cocaine for the purpose of trafficking.

The Nova Scotia Supreme Court, in a decision reported at 273 N.S.R.(2d) 168; 872 A.P.R. 168, found that the R.C.M.P.'s viewing of the accused's ticketing particulars contained on Westjet's electronic passenger records violated his s. 8 Charter right to be secure against unreasonable search and seizure. The court excluded the drug evidence pursuant to s. 24(2). The accused was acquitted. The Crown appealed.

The Nova Scotia Court of Appeal allowed the appeal and ordered a new trial. The trial judge erred by failing to apply the "totality of the circumstances" test in determining whether the accused had a reasonable expectation of privacy in the ticketing information. Applying the totality of the circumstances analysis, the court concluded that the R.C.M.P.'s viewing of the Westjet information did not violate the accused's s. 8 Charter right. If the court was wrong in that conclusion and there was a violation of the accused's s. 8 Charter right, it was not persuaded that admission of the evidence would bring the administration of justice into disrepute.

Civil Rights - Topic 1444

Security of the person - Right to privacy - Expectation of privacy - Operation Jetway was an R.C.M.P. program designed to curtail drug trafficking - Using drug courier profiles it identified and investigated suspected drug couriers - Two members of the Jetway team attended the Westjet office at the Halifax International Airport and requested permission to view the passenger manifest of the incoming overnight Westjet flight from Vancouver - Westjet staff agreed that they could view the computer manifest - The officers were looking for passengers travelling alone who had purchased a one way ticket with cash shortly before departure and checking a single bag - The officers identified the accused as fitting those Jetway indicators - Westjet provided the accused's baggage ticket number - A sniffer-dog indicated the presence of controlled substances in the accused's bag - When the accused collected his bag, he was arrested for possession of a controlled substance - His bag was opened and found to contain three kilograms of cocaine - The accused was charged with possession of cocaine for the purpose of trafficking - The trial judge found that the R.C.M.P.'s viewing of the accused's ticketing particulars contained on Westjet's electronic passenger records violated his s. 8 Charter right to be secure against unreasonable search and seizure and excluded the drug evidence - On appeal by the Crown, the accused argued that the Personal Information Protection and Electronic Documents Act (PIPEDA) provided support for a reasonable expectation of privacy in travel information - He also argued that Westjet contravened s. 7(3)(c.1)(ii) of the PIPEDA in permitting the R.C.M.P. access to his ticketing information - The Nova Scotia Court of Appeal rejected the submission that the PIPEDA created a reasonable expectation of privacy interest in "personal information" as it was defined in that Act - Further, if Westjest contravened the provisions of the PIPEDA, that Act provided the remedy - Westjet's alleged contravention of the Act would not, in itself, constitute a s. 8 violation by the R.C.M.P. - See paragraphs 22 to 25.

Civil Rights - Topic 1444

Security of the person - Right to privacy - Expectation of privacy - The Nova Scotia Court of Appeal stated that "While 'personal information' is broadly defined in PIPEDA [Personal Information Protection and Electronic Documents Act], constitutional protection under s. 8 of the Charter extends only to information which tends to reveal intimate details about a person's lifestyle and personal choices or specific and meaningful information intended to be private and concealed and in relation to which there is a reasonable expectation of privacy. Section 3 of PIPEDA recognizes only existing privacy rights. I am not persuaded that the fact that PIPEDA imposes limits on the use and disclosure of personal information by private enterprises results in an extension of constitutional protection to all such information in the absence of clear language to that effect. The reasonable expectation of privacy required for constitutional protection remains to be determined on the totality of the circumstances" - See paragraph 23.

Civil Rights - Topic 1444

Security of the person - Right to privacy - Expectation of privacy - Operation Jetway was an R.C.M.P. program designed to curtail drug trafficking - Using drug courier profiles it identified and investigated suspected drug couriers - Two members of the Jetway team attended the Westjet office at the Halifax International Airport and requested permission to view the passenger manifest of the incoming overnight Westjet flight from Vancouver - Westjet staff agreed that they could view the computer manifest - The officers were looking for passengers travelling alone who had purchased a one way ticket with cash shortly before departure and checking a single bag - The officers identified the accused as fitting those Jetway indicators - Westjet provided the accused's baggage ticket number - A sniffer-dog indicated the presence of controlled substances in the accused's bag - When the accused collected his bag, he was arrested for possession of a controlled substance - His bag was opened and found to contain three kilograms of cocaine - The accused was charged with possession of cocaine for the purpose of trafficking - The trial judge found that the R.C.M.P.'s viewing of the accused's ticketing particulars contained on Westjet's electronic passenger records violated his s. 8 Charter right to be secure against unreasonable search and seizure and excluded the drug evidence pursuant to s. 24(2) - The accused was acquitted - The Crown appealed - The Nova Scotia Court of Appeal allowed the appeal and ordered a new trial - The trial judge erred by failing to apply the "totality of the circumstances" test in determining whether the accused had a reasonable expectation of privacy in the ticketing information - Applying the totality of the circumstances analysis, the court concluded that the R.C.M.P.'s viewing of the Westjet information did not violate the accused's s. 8 Charter right - The ticketing information did not reveal intimate details of his lifestyle or personal choices and was not specific and meaningful information intended to be private and concealed - The accused did not have a reasonable expectation of privacy in the information - This was not a search within the meaning of s. 8 of the Charter - See paragraphs 30 to 58.

Civil Rights - Topic 1641.5

Property - Search and seizure - Information protected by privacy legislation - [See first and second Civil Rights - Topic 1444 ].

Civil Rights - Topic 1642

Property - Search and seizure - Search - What constitutes - [See third Civil Rights - Topic 1444 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See third Civil Rights - Topic 1444 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Operation Jetway was an R.C.M.P. program designed to curtail drug trafficking - Using drug courier profiles it identified and investigated suspected drug couriers - Two members of the Jetway team attended the Westjet office at the Halifax International Airport and requested permission to view the passenger manifest of the incoming overnight Westjet flight from Vancouver - Westjet staff agreed that they could view the computer manifest - The officers were looking for passengers travelling alone who had purchased a one way ticket with cash shortly before departure and checking a single bag - The officers identified the accused as fitting those Jetway indicators - Westjet provided the accused's baggage ticket number - A sniffer-dog indicated the presence of controlled substances in the accused's bag - When the accused collected his bag, he was arrested for possession of a controlled substance - His bag was opened and found to contain three kilograms of cocaine - The Nova Scotia Court of Appeal concluded that the R.C.M.P.'s viewing of the Westjet information did not violate the accused's s. 8 Charter right - If it was wrong in that conclusion, and there was a violation of the accused's s. 8 Charter right, the court was not persuaded that admission of the evidence would bring the administration of justice into disrepute - If there was a s. 8 violation, the police conduct leading to it was not a serious deviation from permissible police activity - This was not a serious intrusion on the accused's right to be free from an unreasonable search - If there was an expectation of privacy, it was minimal given the nature of the information accessed and the fact that the accused's activities leading to the record were conducted in public - Admission of the drugs into evidence would not render the trial unfair - The drugs were non-conscriptive real evidence - The three kilograms of cocaine was reliable evidence, critical to the Crown's case - Exclusion of the evidence would undermine the reputation of the administration of justice - See paragraphs 59 to 65.

Trade Regulation - Topic 9404

Protection of personal information and electronic documents - General - Application and interpretation of legislation (e.g., Personal Information Protection & Electronic Documents Act) - [See second Civil Rights - Topic 1444 ].

Trade Regulation - Topic 9421

Protection of personal information and electronic documents - Remedies (incl. complaints, investigation, reports and particular remedies) - General - [See first Civil Rights - Topic 1444 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 8].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 8].

R. v. Morin (K.M.), [1992] 3 S.C.R. 286; 142 N.R. 141; 131 A.R. 81; 25 W.A.C. 81, refd to. [para. 8].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, consd. [para. 10].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81, refd to. [para. 10].

R. v. A.M., [2008] 1 S.C.R. 569; 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, consd. [para. 12].

R. v. Patrick (R.S.) (2009), 387 N.R. 44; 454 A.R. 1; 455 W.A.C. 1; 2009 SCC 17, consd. [para. 13].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 2002 SCC 10, refd to. [para. 35].

R. v. Major (J.) et al. (2004), 188 O.A.C. 159 (C.A.), refd to. [para. 35].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 26 O.R.(3d) 736, refd to. [para. 39].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 47].

R. v. Duarte - see R. v. Sanelli, Duarte and Fasciano.

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 48].

R. v. Wong et al., [1990] 3 S.C.R. 36; 120 N.R. 34; 45 O.A.C. 250, refd to. [para. 50].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, refd to. [para. 50].

R. v. Cuttell, 2009 ONCJ 471, consd. [para. 53].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 60].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 61].

R. v. Suberu (M.) (2009), 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 61].

R. v. Harrison (B.) (2009), 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 61].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 63].

Statutes Noticed:

Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, sect. 3 [para. 16]; sect. 5(1), sect. 5(3) [para. 17]; sect. 7(3), sect. 7(5) [para. 19]; Schedule 1 [para. 18].

Counsel:

Mark J. Covan, for the appellant;

Stanley MacDonald, Q.C., for the respondent;

J. Walter Thompson, Q.C., for the intervenor.

This appeal was heard on September 21, 2009, before Bateman, Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Bateman, J.A., on November 6, 2009.