R. v. Jones (H.) et al., (2015) 468 Sask.R. 264 (PC)

• Judge: Rybchuk, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: March 03, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 468 Sask.R. 264 (PC);2015 SKPC 29

R. v. Jones (H.) (2015), 468 Sask.R. 264 (PC)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. MR.006

Her Majesty the Queen v. Hailey Jones and Roger John

(Information No. 24507749; 2015 SKPC 29)

Indexed As: R. v. Jones (H.) et al.

Saskatchewan Provincial Court

Rybchuk, P.C.J.

March 3, 2015.

Summary:

Jones and John (the accused) were charged with: trafficking in cannabis marijuana; possessing cannabis marijuana for the purpose of trafficking, and possession of property (Canadian currency not exceeding $5,000) obtained by crime. The accused brought a Charter application raising the following issues: (1) whether the police violated the accused's s. 9 Charter right not to be arbitrarily detained when they pulled Jones' vehicle over; (2) whether the police violated the accused's s. 8 Charter right against unreasonable search and seizure when they seized and went through Jones' cell phone (i) at the scene of arrest and at the police station, and (ii) when they sent the phone away for analysis of its contents; and (3) if there had been a Charter breach, whether the evidence should be excluded.

The Saskatchewan Provincial Court held that the police had a reasonable suspicion of criminal activity when they stopped the accused and there was no breach of their s. 9 Charter rights. A cursory review of recent texts on Jones' cell phone at the scene and at the police station was a lawful search incident to arrest. However, the court held that sending the phone away for downloading and analysis required a search warrant first and there had been a breach of Jones' s. 8 Charter rights. The court concluded that the evidence from the cell phone should not be excluded.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - [See Civil Rights - Topic 1524 ].

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The police stopped a car driven by Jones - John was a passenger - Jones and John were arrested and charged with drug-related offences - The Saskatchewan Provincial Court held that the police did not violate s. 8 of the Charter when they seized and went through Jones' cell phone at the scene of arrest and later at the police station - However, the court held that the police breached Jones' s. 8 Charter rights when they later sent the cell phone away for analysis of its contents - The court held that just because Jones' s. 8 Charter rights were breached as a result of a search of his cell phone, did not mean that John's s. 8 Charter rights were breached as well - John had no claim to any s. 8 remedy with respect to the contents of Jones' cell phone - John never exhibited any control over the cell phone, nor had it been shown that he was a frequent and usual user of it - Nor did any of the information retrieved from the phone establish that John had a reasonable expectation of privacy as to its contents - See paragraphs 72 to 74.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police (incl. computers, cellphones or digital cameras) - The police stopped a car driven by Jones - John was a passenger - Jones and John (the accused) were arrested and charged with drug-related offences - The Saskatchewan Provincial Court held that the police did not violate the accused's s. 8 Charter right against unreasonable search and seizure when they seized and went through Jones' cell phone at the scene of arrest and later at the police station - The police complied with all four requirements set out in R. v. Fearon (2014 SCC) for search of a cell phone incident to an arrest - The accused were lawfully detained because the police held a reasonable suspicion that they were involved in the commission of an offence - Their subsequent arrest was based on Cst. Wilson's observations of various paraphernalia related to drug trafficking located in plain sight in the car, the smell of raw marijuana emitting from the car and his own extensive experience in investigating drug transactions - The arrest of the accused was lawful - The search of Jones' cell phone at the scene of the arrest and at the detachment was truly incidental to arrest - The officer performed only a cursory search and did not stray into other areas or applications on the phone - However, the court held that there was a breach of Jones' s. 8 Charter right when the police sent the cell phone away for analysis five days after the arrest - The search of the entire contents of the phone was so vast and extensive that it could not logically be said to be proportional or tailored to the original purpose for searching the phone incidental to arrest to gather evidence of drug trafficking - It could not reasonably be said that the mobile device data analysis was merely an extension of the police authority to search an item seized incident to arrest - See paragraphs 40 to 74.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - A 911 caller reported that a white car was parked in a school parking lot; three or four vehicles had pulled up alongside it; exchanges took place between those vehicles and the white car; and the vehicles drove off while the white car remained there - The 911 caller provided the phone number and address they were calling from, but wished to remain anonymous - RCMP Constables Cockrum and Wilson drove to the school - On their way, they phoned the 911 caller, who provided further details of the exchanges with the white car as well as its licence plate number - The licence plate was for a 2006 white Crown Victoria registered to Jones - Constables Cockrum and Wilson parked where they could view the school parking lot - They observed a white car matching the caller's description in the parking lot with a few people standing and milling around it - They continued observing that behaviour for approximately five minutes - The white car drove out of the parking lot - The officers followed it - After confirming that it was a white Crown Victoria, they activated their emergency lights and pulled it over - The licence plate was confirmed to match the information provided by the 911 caller - The driver and passenger were charged with drug related offences - The Saskatchewan Provincial Court found that the accused were not arbitrarily detained and there was no violation of their s. 9 Charter rights when the Crown Victoria was pulled over - The police officers were acting under a reasonable suspicion that the individuals in the car were connected to a drug-related offence - The compelling and credible tip combined with the corroborating evidence of the police officers was sufficient to constitute reasonable suspicion for them to pull over the vehicle - See paragraphs 4 to 39.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The police pulled over a car driven by Jones - John was a passenger - Jones and John (the accused) were charged with drug related offences - The Saskatchewan Provincial Court found that the police did not violate the accused's s. 8 Charter right against unreasonable search and seizure when they seized and went through Jones' cell phone at the scene of arrest and later at the police station - However, the court held that the police breached Jones' s. 8 Charter right when they sent the phone away for analysis of its contents five days after the arrest - It could not reasonably be said that that analysis was an extension of the police authority to conduct a search of an item seized incident to arrest - With respect to whether the evidence should be excluded, the court considered, inter alia, that the law with respect to search and seizure of cell phones at the time Cst. Wilson sent the phone away for data analysis was unclear and in a state of flux - When there was uncertainty in the law, the seriousness of a Charter breach might be lessened - The court concluded that Cst. Wilson was acting in good faith when he thought he did not require a warrant to have the phone sent away to be searched - His conduct fell at the low end of the spectrum of seriousness - The court also noted that the police likely could have obtained a warrant to search the contents of the phone in any event - That reduced both the seriousness of the breach and its impact on the accused - Drug trafficking was a serious crime and society's interest would best be served by having the evidence from the cell phone admitted - In balancing the three factors in R. v. Grant (SCC), the court concluded that exclusion of this evidence would undermine the truth seeking function of the justice system - The court ordered that it be admitted into evidence in the trial - See paragraphs 75 to 91.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See Civil Rights - Topic 1524 ].

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - [See Civil Rights - Topic 1524 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 1524 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1524 ].

Police - Topic 3204

Powers - Direction - Stopping vehicles - General - [See Civil Rights - Topic 3603 ].

Cases Noticed:

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 8].

R. v. Mann (P.H.) (2004), 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 9].

R. v. Chehil (M.S.), [2013] 3 S.C.R. 220; 448 N.R. 370; 335 N.S.R.(2d) 1; 1060 A.P.R. 1; 2013 SCC 49, refd to. [para. 12].

R. v. MacKenzie (B.C.), [2013] 3 S.C.R. 250; 448 N.R. 246; 423 Sask.R. 185; 588 W.A.C. 185; 2013 SCC 50, refd to. [para. 14].

R. v. Yates (B.M.), [2014] 8 W.W.R. 489; 438 Sask.R. 78; 608 W.A.C. 78; 2014 SKCA 52, refd to. [para. 15].

R. v. Imoro (A.) (2010), 264 O.A.C. 362; 251 C.C.C.(3d) 131; 2010 ONCA 122, dist. [para. 26].

R. v. Gladue (C.B.), [2012] A.W.L.D. 2164; 524 A.R. 237; 545 W.A.C. 237; 2012 ABCA 143, dist. [para. 27].

R. v. Williams (G.) (2013), 313 O.A.C. 195; 111 W.C.B.(2d) 574; 2013 ONCA 772, dist. [para. 32].

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. 37].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 41, footnote 2].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 41, footnote 3].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 42, footnote 4].

R. v. Fearon (K.) (2014), 465 N.R. 205; 326 O.A.C. 1; 2014 SCC 77, refd to. [para. 42].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask. R. 1, refd to. [para. 53, footnote 5].

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. 53, footnote 6].

R. v. Larose (D.B.) (2013), 422 Sask.R. 194; 2013 SKQB 226, refd to. [para. 54].

R. v. Adeshina (A.F.) (2013), 434 Sask.R. 38; 2013 SKQB 414, refd to. [para. 56].

R. v. Meagher (J.P.) (2013), 429 Sask.R. 120; 2013 SKPC 152, refd to. [para. 56].

R. v. Giles (D.F.) et al., [2007] B.C.T.C. Uned. H63; 2007 BCSC 1147, refd to. [para. 70].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 72].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 73].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 76].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 77].

R. v. Cole (R.), [2012] 3 S.C.R. 34; 436 N.R. 102; 297 O.A.C. 1; 2012 SCC 53, refd to. [para. 82, footnote 10].

R. v. Spencer (M.D.) (2014), 458 N.R. 249; 438 Sask.R. 230; 608 W.A.C. 230; 2014 SCC 43, refd to. [para. 82, footnote 10].

R. v. Vu (T.L.), [2013] 3 S.C.R. 657; 451 N.R. 199; 345 B.C.A.C. 155; 589 W.A.C. 155; 2013 SCC 60, refd to. [para. 85, footnote 11].

R. v. Morelli - see R. v. U.P.M.

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 85, footnote 11].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 40]; sect. 9 [para. 4]; sect. 24(2) [para. 75].

Counsel:

Trent Forsyth and David Fittes (student-at-law), for the Crown;

Rosanne Newman, Q.C., and Neil McPhee (student-at-law), for the accused, Hailey Jones;

Loree Richardson, for the accused, Roger John.

This application was heard at Nipawin, Saskatchewan, before Rybchuk, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on March 3, 2015.