R. v. Webster (P.A.), 2015 BCCA 286

• Judge: Newbury, Lowry and Chiasson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 10, 2015
• Jurisdiction: British Columbia
• Citations: 2015 BCCA 286;(2015), 374 B.C.A.C. 129 (CA)

R. v. Webster (P.A.) (2015), 374 B.C.A.C. 129 (CA);

    642 W.A.C. 129

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. JL.003

Regina (respondent) v. Peter Andrew Webster (appellant)

(CA41426; 2015 BCCA 286)

Indexed As: R. v. Webster (P.A.)

British Columbia Court of Appeal

Newbury, Lowry and Chiasson, JJ.A.

June 24, 2015.

Summary:

The police arrested a woman for a dial-a-dope trafficking offence. A search of the woman's cellular telephone revealed two telephone numbers for a person called "Dru Boss Man". The police believed he was the woman's drug supplier. The police obtained a production order under s. 487.012 of the Criminal Code and obtained several historical text messages. Surveillance was organized respecting the suspected drug supplier (the accused). The lead police investigator, who lived in the same condominium complex as the accused, obtained a copy of a "Rental Information Report" from the property manager of the buildings which gave him the address and telephone number of the accused. The telephone number was the same as the number for "Dru Boss Man" contained in the arrested woman's cellular telephone. On December 16, 2008, a surveillance team was in position based on information that the accused would be receiving a drug delivery. At approximately 12:35 a.m., a white pickup truck pulled up in front of the building in which the accused lived. The accused came out and went to the driver's side of the vehicle where he was given a plastic bag, which contained white and brown bags. The accused went back into the building and was arrested in the elevator. The bags contained approximately one kilogram of cocaine and crack cocaine. The accused was taken to the RCMP detachment. The police then went to the accused's apartment where they believed a woman was present. They removed her and secured the premises pending the lead investigator obtaining a search warrant. After the warrant was obtained in the early hours of December 17, 2008, the accused's apartment was searched pursuant to the search warrant. Drugs, drug paraphernalia and cash were found. The accused was convicted of possession of cocaine for the purpose of trafficking. The accused appealed, arguing that the trial judge erred in:

- finding that the text messages between the accused and the previously arrested woman had been lawfully obtained by the police, contrary to R. v. TELUS Communications Co. (SCC 2013);

- finding that the retrieval of the accused's information from the manager of the condominium complex did not violate his s. 8 Charter rights;

- finding that the police did not breach the accused's s. 8 Charter rights when they followed him into his condominium building to obtain his unit number;

- finding that the police did not breach the accused's s. 8 Charter rights when they entered his condominium building to carry out a warrantless arrest;

- finding there were exigent circumstances that justified the police entering the accused's residence without a warrant; and in

- refusing the defence application to re-open the case post-conviction to consider whether the Supreme Court of Canada ruling in R. v. Baldree (SCC 2013) affected the admissibility of the text messages between the accused and the previously arrested woman.

The British Columbia Court of Appeal rejected the accused's grounds of appeal and dismissed the appeal. The court held that R. v. TELUS Communications did not apply to historical text messages stored by TELUS. Rather R. v. TELUS Communications provided that using a general warrant as authority to intercept ongoing (i.e., prospective) communications was not appropriate. Here a general warrant was not used and the authorization was not for prospective production. All text messages in this case had been sent, received and recorded. A production order under s. 487.012 of the Criminal Code was available to obtain the historical records. As to the information obtained from the property manager of the condominium complex, the accused's expectation of privacy was limited at best. The document was in the hands of a third party. By statute some people were entitled to the information. The court saw no reason why the police could not ask for it. Merely complying with a request for provision of information in his possession did not make the property manager a state agent. The accused did not have a reasonable expectation of privacy in the common areas of the condominium and a warrant was not required for police to enter. The police were justified in arresting the accused without a warrant. The common areas of the condominium complex were not part of the accused's dwelling house because they were generally accessible by the police and not the dwelling where the resident had a reasonable expectation of privacy. The trial judge did not err in finding that there were exigent circumstances justifying the police entering the accused's unit without a warrant. Section 8 of the Charter was not violated. The trial judge did not err in refusing to re-open the trial to consider the R. v. Baldree case.

Editor's Note: For a decision by the Ontario Court of Appeal on the expectation of privacy issue - see R. v. White (M.) (2015), 336 O.A.C. 252; 2015 ONCA 508.

Civil Rights - Topic 1508

Property - Expectation of privacy - See paragraphs 64 to 78.

Civil Rights - Topic 1555

Property - Land - Search of private land and buildings - See paragraphs 79 to 85.

Civil Rights - Topic 1559

Property - Land - Search and seizure by police - See paragraphs 79 to 85.

Civil Rights - Topic 1641.5

Property - Search and seizure - Personal information - See paragraphs 64 to 72.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - See paragraphs 64 to 78.

Civil Rights - Topic 1650.1

Property - Search and seizure - Warrantless search and seizure - What constitutes - See paragraphs 79 to 85.

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - See paragraphs 86 to 91.

Criminal Law - Topic 3017

Special powers - Third party preservation and production orders - Computer data (incl. text messages) - See paragraphs 38 to 63.

Criminal Law - Topic 4571.1

Procedure - Conduct of trial - Re-opening of trial to hear additional argument (incl. new case law) - See paragraphs 92 to 104.

Criminal Law - Topic 5275.1

Evidence and witnesses - Interception of private communications - Access to recordings and transcripts of intercepted communications (incl. text messages in computer database) - See paragraphs 38 to 63.

Cases Noticed:

R. v. Baldree (C.) (2013), 445 N.R. 247; 306 O.A.C. 1; 2013 SCC 35, refd to. [para. 1].

R. v. TELUS Communications Co., [2013] 2 S.C.R. 3; 442 N.R. 1; 304 O.A.C. 1; 2013 SCC 16, refd to. [para. 1].

R. v. Belcourt (A.J.) (2015), 368 B.C.A.C. 294; 633 W.A.C. 294; 2015 BCCA 126, refd to. [para. 19].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 26].

R. v. Ly (C.), [1997] 3 S.C.R. 698; 219 N.R. 237; 206 A.R. 309; 156 W.A.C. 309; 119 C.C.C.(3d) 479, refd to. [para. 35].

R. v. Carty, 2014 ONSC 212, refd to. [para. 55].

R. v. Frank, 2014 ONSC 2853, refd to. [para. 55].

R. v. Croft (J.C.) (2013), 573 A.R. 339; 2013 ABQB 640, refd to. [para. 55].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 36].

Criminal Code, R.S.C. 1985, c. C-46, sect. 487.01(1)(c) [para. 39]; sect. 487.012 [para. 5].

Counsel:

N.L. Cobb, for the appellant;

W.P. Riley, Q.C., and M. Charles (articled student), for the respondent.

This appeal was heard in Vancouver, British Columbia, on February 10, 2015, before Newbury, Lowry and Chiasson, JJ.A., of the British Columbia Court of Appeal. The following decision was delivered for the court by Chiasson, J.A., on June 24, 2015.